1. KHAWAJA MUHAMMAD SHARIF, C. J.---This is tile plaintiff's second civil appeal which arises out of his suit brought against Faqir Muhammad and Kala Khan in the Court of the Additional Sub-Judge, Muzaffarabad, for specific performance of the con--tract for sale and possession with regard to land Khasra No. 304, measuring 1 kanal 6 marlas situate in village Kahori, Tehsil Muzaffarabad. The plaintiff claimed that Faqir Muhammad defendant No. I executed a contract for sale of land Khasra No. 304, measuring 1 kanal 6 marlas situate in village Kahori in his favour on 9-2-1967 for a consideration of Rs. 800 and that Faqir Muhammad received the entire price. The land was under the possession of Kala Khan as a mortgagee since 1952; the land having been mortgaged for Rs.
200. The suit for specific performance of the contract and possession was instituted on 17-3-1967 and the trial Court on the same day issued a temporary injunction restraining Faqir Muhammad from alie--nating the suit land. After the Institution of the suit, the plaintiff claimed, Faqir Muhammad executed a sale-deed in favour of Kala Khan mortgagee of the suit land and got the same regis--tered on 24-'3-1967. The plaintiff then amended his plaint with the permission of the Court so as to challenge the transfer made pendent lite showing that the rule of lis pendens applied and the transfer had no legal value. The learned Sub-Judge by his judgment dated 5-8- 1970 dismissed the plaintiff's suit. He then went up in appeal before the District Judge, Muzaffar-- abad, who by his judgment and decree dated 30-8-1971 dismissed the plaintiff's appeal. He has now come up in second appeal before this Court.
2. The Learned District Judge while discussing Issues Nos. I end 6 wrote that the possession is not with the plaintiff and that the agreement Exh. P. A. Is unregistered. The learned District Judge relied on section 12, Specific Relief Act and section 52, Transfer of Property Act. Learned counsel for the plaintiff---appellant argued that these two sections were no bar In the way of the plaintiff getting a decree and thaw the learned District Judge's approach was not correct.
3. Section 12, Specific Relief Act is reproduced below:- "Cases in which specific performance enforceable.---Except as otherwise provided in this Chapter, the specific perfor--mance of any contract nay in the discretion of the Court be enforced---
(a) when the act agreed to be done is In the performance, wholly or partly, of a trust;
(b) when there exists no standard for ascertaining the actual damage caused by non- performance of the act agreed to be done;
(c) when the act agreed to be done is such that precuniary compensation for its non-performance would not afford adequate relief; or
(d) when it is probable that precuniary compensation cannot be got for the non-performance of the act agreed to be done.
4. Explanation.----Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compen--sation in money, and that the breach of a contract to transfer movable property can be thus relieved."
5. Learned counsel for the appellant argued that probably the learned District Judge was relying on clause (iii) when he wrote that section 12 was a bar in the way of the plaintiff but then the learned District Judge perhaps, did not read the explanation which goes with clause (c) of section 12.
6. Clause (c) says that when the act agreed to be done is such that pecuniary compen--sation for its non-performance would not afford adequate relief, only then specific performance can be enforced and consequently where the pecuniary compensation for non-performance affords adequate relief, specific performance should be refused but then the explanation says that unless and until the contrary is proved, the presumption would be that the breach of a contract to transfer immovable property cannot be adequately relieved by com--pensation in money. There is no proof on the file that the non-performance of the act would be adequately compensated by awarding pecuniary compensation, therefore, it should be presumed that the pecuniary compensation in the present case does not afford adequate relief because the agreement for sale was with regard to immovable property.
7. Section 52, Transfer of Property Act is reproduced below:-- "During the pendency in any Court having authority in the State of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifi--cally in question, the property, cannot be transferred or other--wise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
8. Learned counsel for the defendant-respondent argued that the defendants had no knowledge of the institution of the suit and that the transfer made by Faqir Muhammad in favour of Kala Khan mortgagee of the suit land by a registered sale-deed would not be affected by the rule of lis pendens. The know--ledge of the institution of the suit is not material as is quite clear from the explanation attached to section 52. The explanation is reproduced below:- "For the purposes of this section the pendency of a suit or proceeding-shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation pres- -cribed for the execution thereof by any law for the time being in force."
9. The rule of lis pendens would apply to any transfer made after the institution of the plaint. The question of knowledge of the proceeding is quite irrelevant.
10. The learned District Judge wrote on page 4 of his judgment that according to section 49 of the Registration Act until the deed Exh. P. A. Is registered it has no value in the eyes of law and that according to section 50 of the Registration Act, the registered deeds have got preference over the unregistered deeds, therefore, the plaintiff cannot enforce his claim. Section 49 provides that:- "No document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-
(1) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power; unless it has been registered."
11. "An unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a con--tract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882, or as evidence of any col--lateral transaction not required to be effected by registered instrument."
12. 'The present suit was for specific performance, therefore, it was admissible in evidence. The learned District Judge was wrong do saying that it was not admissible in evidence. Section 50, Registration Act provides that:- "Every document of the kinds mentioned in clauses (a), (b). (c) and (d) of section 17, subsection (1), and clauses (a) and (b) of section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not."
13. We do not agree with the view of the learned District Judge that under section 50 registered documents would have prece--dence over unregistered documents because the value of the property exceeds Rs.
100. In case of a document compulsorily registerable, as between two documents affecting such property --one of which is registered and the other unregistered, the registered document shall have precedence over the unregistered document, but this rule would not apply where one document, does not require registration and is not registered while the other requires registration and is registered. Exh. P. A., the agreement for sale or contract for sale to be more exact is not registered but at the same time it does not require registration while Exh. D. A. The sale deed executed by Faqir Muhammad in favour of Kala Khan is a document that is registered and requires registration. If the competition were between unregistered and registered docu-- ment in a case where registration was necessary, the registered document would have precedence over the unregistered document but not in the present case. Learned counsel for the appellant cited AIR 1930 Mad. 683 and AIR 1927 All. 287 in support of the proposition that a contract for sale does not require regist--ration. Even the learned counsel for the defendant- respondent concedes that a contract for sale does not require registration. We are aware of no provision of law which requires a plaintiff to be in possession of the property when bringing a suit for specific performance of the contract for sale.
14. The learned District Judge while rejecting the appeal of the plaintiff wrote that there was no mutuality in the present case by which, of course, he meant, as has been argued by the learned counsel for the defendant-respondent, that the contract for sale was not signed by both the parties. Learned counsel for the appellant argued that now the Jammu & Kashmir Transfer of Property Act is not in force but the Transfer of Property Act as it applies to West Punjab was adapted in January 1959, and that the definitions of contract for sale differed in British India and the Jammu and Kashmir State. Section 54 of the Jammu & Kashmir Transfer of Property Act provided that: "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties, but no such contract shall be valid, unless it is in writing and signed by the parties. It does not, of itself, create any interest in or charge on such property."
15. Section 54 of the Transfer of Property Act, 1882, which now; applies in Azad Kashmir provides that: "A contract for the sale of immovable property is a con--tract that a sale of such property shall take place on terms, settled between the parties. It does not, of itself, create any, interest in or charge on such property."
16. The words "but no such contract shall be valid unless it is in--writing and signed by the parties" which figured in section 54--of the Jammu and Kashmir Transfer of Property Act do not appear in section 54 of the Transfer of Property Act, 1882. Therefore it is not required by law that a contract for sale shall be signed by tho parties. Learned counsel for the defendant---respondent argued that even if the provision of section 54 of the Transfer of Property Act, 1882, is kept in view, it still requires that the contract shall be signed by both the parties since the terms settled between the parties cannot be ascertained unless the document is signed by both the parties The term$ of a sale are given in a sale-deed and the sale-deed is signed by the vendor. It does not require to be signed by the vendee. The terms settled between the parties can be read in the sale-deed in spite of the fact that the sale-deed is not signed by the vendee. We do not agree with the learned counsel's argument that eves if the provision of section 54, Jammu & Kashmir Transfer of Property Act does not apply, the contract for a sale still requires to be signed by the parties and would not be affective if it is not signed by both the parties. Even then the contract for sale is signed by both parties.
17. Learned counsel for the defendant argued that the plaintiff could not succeed because he had not redeemed the mortgage by paying off Kala Khan-mortgagee and had rot obtained po9--session.
18. We are of the view that the plaintiff' could not redeem the mortgage held by Kala Khan unless he obtains a decree for specific performance of the contract for sale. The contract for sale does not transfer any tights in the property in favour of the plaintiff. He could only sue for specific performance of the contract and unless he obtains a decree for specific per--formance, he could not redeem the mortgage and he had no right to redeem the mortgage till then.
19. Regarding issue No. 7, which is "Is the suit not main--tainable when the suit land hail been legally transferred?" the learned District Judge wrote that a detailed discussion and decision on issues Nos. 1 and 6 have decided issue No. 7 and issue No. 7 does not require any further discussion and the suit and was legally transferred by a registered sale-deed in favour of Kala Khan and until and unless the sale-deed Exh. D. A. Was not cancelled and held illegal the present quit in the present shape cannot succeed. The suit land could be said to have been legally transferred in favour of Kala Khan by Faqir Muhammad, if it was not hit by the rule of lis venders. If the plaintiff had not brought a suit for specific performance of the contract for sale, the unregistered contract for sale, and we would say, even a registered contract for sale, would not have availed him as against a registered sale-deed executed by Faqir Muhammad in favour of Kala Khan. The registered sale- deed executed by Faqir Muhammad in favour of Kala Khan would be hit by the rule of Ifs pendens if it was executed after the institution of the plaintiff's suit.
20. As regards issue No. 8 the learned counsel for the plaintiff-appellant stated that costs of improvement have not been awarded in favour of the defendant and that no cross-objections had been filed by hint, therefore, he need not go into the question of the costs of improvements.
21. Towards the close of the arguments, we found out while going through the file that the sale-deed Exh. D. A. Executed by Faqir Muhammad in favour of Kala Khan was drawn up on 16-3-1967 though of course it was registered on 24-3-1967. We called upon the learned counsel for the plaintiff to show how the sale-deed Exh. D. A. Would be hit by the rule of lis pendens, because registration dates back to the date of execution and the date of execution of Exh. D. A. Is 16-3-1967 whereas the suit was instituted on 17-3-11167. A transfer of the suit land, made a day prior to the institution of the suit, would not be hit by the rule of Its pendens. Section 47 of the Registration Act provides that: "A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."
22. Under Acts 1 and 19 of 1843 a registered document operated from the date of registration, and not from the date of its execution. Under the Acts of 1864, 1866, 1871, 1877 and the present Act which is Act VI of 1908, a registered document operates from the date of its execution and not from the date of its registration.
23. Mr. B.A. Farooqi learned Advocate for the appellant argued that the doctrine of lis pendens would apply to the present case even though the sale-deed was executed prior to the institution of the suit because the deed was registered subsequent to the institution of the suit. His contention is that the document would take effect, so far the parties to the deed are concerned,, from the date of execution but as regards a 3rd party, it would take effect from the date of the registration. He cited AIR 1941 Cal. 78 and PLD Dacca 305. These rulings have no bearing on the present case.
24. Mr. T. H. Tariq learned Advocate for the respondent cited AIR 1938 Pat. 134 and AIR 1938 All. 431 in support of his, contention. We can draw some guidance from these rulings though the point involved in the present case is not directly involved in these cases. In AIR 1938 All. 431 it was held that:- "A sale deed is completed when it is executed by the vendor. The registration is no part of the execution, though it is neces--sary under law for making the deed valid. After executing the deed, it is not open to the executant to go back on his agreement and revoke it. The mere fact that the deed has not been registered does not affect the completion of the execution because even if the executant be not willing or agreeable to get the deed registered, the person in whose favour the deed has been executed has a right under the registration law to get the deed forcibly registered.
25. In the case of a gift it is not open to the donor to revoke his gift or prevent the regist--ration of the gift deed en the ground that the gift was not completed until the deed was registered. The same principle applied to the case of a sale-deed."
26. "A deed of baimokasa in respect of certain property was executed which required registration ; but before the deed was registered, the property was attached and the document was subsequently registered: Held that the document prevailed against the attach--ment as the document when registered took effect from the date of execution."
27. We need not discuss the facts of these two cases in detail because direct authorities are available on the point whether section 52 would apply to a document that has been executed before the institution of the suit but had been registered subsequent to the institution of the suit as in the present case. We may cite AIR 1925 Mad. 710 in support of the proposition that the sale-deed executed before but registered after the suit would not be hit by the provisions of section 52 of the Transfer of Property Act and AIR 1922 Mad. 249-41 Mad. L J 399. In AIR 1922 Mad. 249 it was held that a document creating title in immovable property executed before the date of the filing of tire suit but registered afterwards, was not affected by the doctrine of lis pendens. In A 1 It 1925 Mad. 710 a sale--deed was executed before the institution of the suit but registered after the filing of the suit.
28. It was held that:- " Under section 52 of the Transfer of Property Act any transfer or other dealing with the property in a suit or pro--ceeding is affected by the doctrine of lis pendens. Mere regis--tration of the document cannot be said to be a transfer of the property or dealing with the property in suit. Section 52 there- -fore, can have no application to the present case where the sale-deed was executed before the date of the filing of the suit."
29. Hence respectfully agreeing with the above two mentioned authorities we hold that the sale-deed that was executed before the institution of the suit is not affected by the doctrine of Its pendens even though it was registered after the institution of the suit; for the reasons that tae document was complete before the institution of the suit and the right in the property had already vested in the vendee when the suit was instituted.
30. Hence the appeal is dismissed with costs.