' SHAFIUR RAHMAN, J---Leave to appeal was granted to examine whether the High Court had erred in holding that the doctrine of pendente lite recognized by amended section 52 of the Transfer of Property Act, 1882 (IV of 1882) was not applicable to the present case.
2. Mst. Uzma, respondent No,3 was owner of House No,652-A, Block-I, North Nazimabad Karachi. She entered into an agreement on 23-11-1978 to sell it to the appellant for a consideration of Rs,2,00,000 and realized a sum of Rs,50,000 as earnest money. The appellant advertised the purchase with a view to invite, claim, objections and rights, if any, on the property but none was received. The sale deed was finalized on 17-5-1979. Being an employee of Habib Bank (respondent No,4) and having obtained a loan of Rs,60,000 from it, the appellant duly mortgaged the house with it on 14-10-1979.
On receipt of notice from Court in Suit No,462/1976, the appellant learnt that on 6-4-1974 Ghulam Sibtain Naqvi (respondent No,2) as attorney of Mst. Uzma, had already executed an agreement to sell this property to Zair Hussain (respondent No,1) for Rs,90,000 out of which Rs,25,000 had been paid as earnest money. The balance was to be paid after two years at the time of the execution of the deed. The appellant and respondent No,4 were impleaded in that suit and it was contested. The trial Court framed the following issues on the pleadings of the parties:-- "(1) Whether the agreement of sale of house between defendant 1 and the plaintiff is binding upon defendant 2?
(2) To what relief, if, any, the plaintiff is entitled?
Additional Issue: Whether the transfer of suit property by way of sale deed dated 17-5-1979 executed by defendant 2 in favour of defendant 3 is mala fide, illegal and having no legal effect and liable to be cancelled and/or defendant 3, is bound to transfer the suit property to plaintiff having purchased the same during pendency of the suit?"
(3) The controversy between the respondent Habib Bank Limited and the plaintiff was resolved by the following order:-- "When this suit came up for evidence before me on 18-10-1983, the learned counsel for the plaintiff and defendant 1 conceded before me that in so far the claim of defendant 4 (Bank) is concerned the same is not affected by the present suit. The learned counsel also agreed that out of the total sale consideration due and payable to defendant 1 the mortgage money due to defendant 4 may be paid in satisfaction of mortgage. I accordingly by consent directed defendant 4, to submit the exact amount due against the mortgage security. On 15-11-1983 a statement was filed by the learned counsel for defendant 4 in Court which showed that a sum of Rs,51,407.52 was due and payable by the defendant 3 in respect of the suit property up to 31st October.
1983. The correctness of this statement was not disputed by the learned counsel for defendant No,1 and the plaintiff and accordingly with the consent of the learned counsel for parties then present I directed the plaintiff to deposit in Court the entire balance of the sale consideration amounting to Rs,65,000 and further observed that out of this amount a sum of Rs,51,407.54 may be paid to defendant 4 upon execution of a redemption deed and surrender of all original documents of title in his possession to the Nazir of this Court. The sum of Rs,65,000 has since been deposited by the plaintiff in Court. In these circumstances there is no controversy now in the suit between the palintiff and defendant 4."
' The learned Judge trying the suit held that the agreement to sell the property dated 6-4-1974 (Exh.
7/1) was validly executed and was binding on the parties. On the additional issue the finding recorded was as hereunder:-- "It is an admitted position on record that the sale deed in favour of defendant 3 by defendant 2 has been executed on 17-5-1979. The execution of sale deed in favour of defendant 3, therefore, took place during the pendency of the present suit and during subsistence of an injunction order whereby defendant 2 was restrained from transferring the aforesaid property. In these circumstances the burden of showing that defendant 3 is not bound to transfer the suit property in favour of the plaintiff was entirely on him. The defendant 3 has not led any evidence in this regard.
The property having been acquired by defendant 3 during the pendency of the suit and on the face of existence of an Injunction interim order prohibiting defendant 2, from transferring suit property, the sale in favour of defendant 3 is hit by section 52 of the Transfer of Property Act. I, therefore, hold that defendants 1 to 3 are liable to convey the property in suit in favour of the plaintiff under the agreement of sale Exh.7/1)."
' The relief granted was in terms as hereunder:-- "As a result of above discussion I am of the view that the plaintiff is entitled to conveyance of the suit property in his favour. The plaintiff has paid Rs,25,000 to defendant 1 at the time of execution of agreement of sale Exh.7/1 and he deposited the balance of the sale consideration amounting to Rs,65,000 in Court. Out of this amount a sum of Rs,51,407.52 is to be paid to defendant 4 upon execution of a valid redemption deed of property and surrender of all original documents of title relating thereto to the Nazir of this Court. The balance amount of Rs,12,592.98 will be paid to defendant No,1 upon completion of sale in favour of plaintiff. The sale deed will be executed by the defendant in favour of plaintiff within one month from today failing which Nazir of this Court will execute the same in accordance with the law. The plaintiff is also entitled to a decree for possession of the suit property against the defendants. The cost of resumption deed will be borne by defendants 2 and 3 jointly. It is however, clarified that the decree in the present suit will be no bar to any remedy which may be available to defendant 1 against defendants 2 and 3."
4. An Intra-Court Appeal was filed but it was dismissed on 1-12-1987.
5. The learned counsel for the appellant has for his rights relied upon non-observance by the plaintiff of the requirements of the Transfer of Property and the Registration (Sindh Amendment)
Act, 1939 (Sindh Act XIV of 1939). According to him the restraint order passed against the owner cannot adversely affect his interests as he had no notice of it and was a bona fide purchaser for consideration.
6. Section 52 of the Transfer of Property Act and sections 18 and 17 of the Registration Act, after the amendment by Transfer of Property and the Registration (Sindh Amendment) Act, 1939 (Sindh Act No, XIV of 1939), read as hereunder:-- "Section 52 of Transfer of Property Act:
(1) During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specially in question, if a notice of the pendency of such suit or proceeding is registered under section 18 of the Registration Act. 1908,the property after the notice is so registered, cannot be transferred or otherwise 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.
(2) Every notice of pendency of a suit or proceeding referred to in subsection (1) shall contain the following particulars, namely:-
(a) the name and address of the owner of immovable property or other person whose right to the immovable property is in question;
(b) the description of the immoveable property the right to which is in question;
(c) the Court in which the suit or proceeding is pending;
(d) the nature and title of the suit or proceeding: and
(e) the date on which the suit or proceeding was instituted." (The amendments made have been underlined). "Section 18 of the Registration Act: ' Any document not required to be registered under section 17 may also be registered under the Act". In section 17 of the Registration Act the following clause (cc) was inserted:-- "notices of pending suits or proceedings referred to in section 52 of the Transfer of Property Act, 1882."
7. Admittedly no strict compliance with the requirements of the amended provision had taken place in the case. What was done pursuant to the requirmcnt of this section was that a notice was addressed by the lawyer of the plaintiff in Suit No,462 of 1976, dated 20-8-1976 to the Registrar, as hereunder:- "Dear Sir, ' I am counsel of plaintiff in the above-noted suit and the Hon'blc I sigh Court has been pleased to grant an ad interim injunction on 10-8-1976 prohibiting and restraining for the allocation, sale, mortgage or disposition of the property i.e, House No,A-652, Block 'H', North Nazimabad, Karachi.
Photocopy of the Order of High Court is attached.
' You are requested to kindly order the Sub-Registrar, North Nazimabad to obey the orders of the High Court and till the defendants produce order vacating the stay."
Notwithstanding the non-compliance with the amended provisions, the plaintiff can avail of the provisions of Order XXII, Rule 10, C.P.C. Whereby assignment pending litigation would be as much subject to decree against the main defendant assignee as against the owner assignor himself.
8. It is true that the injunction order passed against the assignor owner of the property would not strictly and legally bind the assignee if an alienation is made in breach of it. All the same, the relief under section 52 of the Transfer of Property Act being an equitable relief has to be obtained on the totality of the factors appearing on the record and not on the mere compliance or noncompliance of the amended provisions of the two laws. That is the view taken by the High Court.
9. In the present case, the circumstances clearly show that the plaintiff/respondent had a prior interest in the property. He had gone to the Court earlier. His suit was pending. An injunction had been granted against the owner assignor and in that situation the appellant has stepped in to purchase the property.
10. In the circumstances, we consider that the judgment of the High Court is unexceptionable and no relief can be granted to the appellant. This appeal fails and is dismissed with no order as to costs.