BALAKRISHNAN Vs. KUNJIKRISHNAN

JUDGEMENT

(1.) THIS appeal is by the plaintiff in a suit for specific performance of an agreement to sell immovable property. The plaint schedule item 1 property is an extent of 50 cents in Sy. No. 1662b,' 1662c, 1662d, 1663, 1664 and 1666 of West Kallada village. Plaint item 2 are huts standing on plaint item 1. Plaint item 1 belonged to the first defendant. He agreed to sell this to the plaintiff at the rate of Rs. 275 per cent. An unregistered agreement for sale was executed on 19-2-1975. The date within which the sale was to be taken was agreed as 30-5-1975. An amount of Rs. 2250/-was paid as advance. According to the plaintiff the title deed was also handed over to him along with the agreement. The suit is filed on the allegation that the plaintiff was ready and willing to take the sale and though he issued a notice on 30-4-1975 demanding execution of the sale deed and surrender of possession he found, on enquiries later, that the first defendant had executed a sale deed in favour of the second defendant for the property inclusive of the plaint item 1. According to him the second defendant had taken the sale with the full knowledge of the agreement for sale is favour of the plaintiff, it was not binding on the plaint property and was not taken bona fide for value Conveyance in his favour is sought in the plaint on deposit of the balance purchase money. It is also alleged in the plaint that defendants 5 to 7 were known to have some interest in the property and for that reason they are made parties. The suit was contested by the defendants other than the 4th defendant. Though first defendant filed a written statement he does not seem to have made any -serious contest in the suit. He did not offer himself for examination. According to him defendants 2 and 3 were lessees of the property even on the date of agreement of sale, they having taken a lease of the property from the prior owners. They were said to have been carrying on coir spinning in item 2 shed put up for that purpose. The first defendant took the sale deed for plaint property on 30-3-1972 and according to him thereafter he was receiving rent from defendants 2 and 3. He would allege that he entered into an agreement for sale with the plaintiff under the impression that defendants 2 and 3 would surrender possession but since they were found to be not ready to surrender possession the plaintiff resiled from the agreement to sell to plaintiff. It is said that therefore the property was sold to the second defendant. Defendants 2 and 3 filed a joint written statement contending that the plaint property, 50 cents, is a portion of 1. 12 acres in their possession as lessees for the last 20 years, that they constructed two sheds for conducting coir business, that the 3rd defendant is having residence in one of them, that they were ignorant of the agreement for sale in favour of the plaintiff till the date of the suit and that the first defendant who purported to have entered into the agreement with the plaintiff had only nominal right in the property which right he could not have contracted to convey. According to them it was the second defendant who wanted to purchase the property from the previous owner, the second defendant needed funds for such purchase, the 1st defendant who was approached agreed to provide such funds, to serve as security for such advance by him the sale deed was agreed to be taken in his name, it was so taken in his name, and when a sum of Rs. 1000/- was paid to the first defendant be executed a sale deed for 10 cents of property in favour of the 3rd defendant who is the wife of the second defendant. It is further contended that he was bound to convey the balance 80 cents on receiving a consideration of Rs. 7000/-and if that be so he was not competent to enter into a contract with the plaintiff. When there was some attempt on the part of the 1st defendant to ignore his obligation to convey property to defendants 2 and 3 a suit for injunction was filed as O. S 115 of 1975, an interim injunction was obtained and thereafter at the instance of mediators the first defendant conveyed 80 cents inclusive of the plaint item 1 to the second defendant. Thus it is said that defendants 2 and 3 together are owners of 90 cents inclusive of plaint item and are in possession thereof. They also plead that at the time the sale deed was taken by them they were not aware of the agreement of sale in favour of the plaintiff and hence they were bonafide transferees for consideration. Defendants 5 to 7also are said to be bonafide purchasers for value. These defendants also have entered appearance and they claim to be such bonafide purchasers for value in regard to 40 cents of property. The 4th defendant is conducting a tea shop in a shed in the southern portion of the plaint item.

(2.) THE learned Subordinate Judge who tried the suit found that the first defendant committed breach of contract in not complying with the terms of Ext. Al karar, that defendants 2, 3 and 5 to 7 are found to be bonafide purchasers for value and therefore entitled to protection under S. 19 (b) of the Specific Relief Act and that therefore the plaintiff would hot be entitled to specific performance of the agreement. THE result was the court decreed the suit only to the extent of allowing recovery of Rs. 2250/- with interest. THE plaintiff has thereupon come to this court by way of appeal.

(3.) NOW we come to the question whether defendants 2 and 3 are bonafide purchasers without notice and for value. It is very difficult to accept the case of defendants 2 and 3 that they took it without notice of the agreement of sale. The plea that is set up by them in this case which we have found against would indicate that they have been desiring to get at the properties by some means or other. Ext A7 plaint is soon after the karar in favour of the plaintiff and there is mention therein of an attempt by the first defendant to sell the property and a case of surrender of the property 5 years earlier. All that would indicate that there was an attempt to defeat Ext Al and it is also seen that they were obliged by the first defendant executing a sale deed at a price much lesser than what is agreed upon under Ext. Al. The first defendant would have obtained Rs. 275/-per cent under the sale to the plaintiff, but under the sale to defendants 2 and 3 he obtained a much lesser price Rs. 90/-only per cent. The burden of showing that the purchase was bonafide and without notice of the existing agreement for sale with regard to a property is on the subsequent purchaser. No doubt such burden, in a normal case, would be discharged even by the party swearing in the witness box that he was not aware of any subsisting agreement for sale as observed in Lekh Singh v. Dwarka Nath (AIR. 1929 Lahore 249) and in Venkataravanappa v. Basappa (AIR. 1955 Mysore 3 ). But it would be a question of fact in each case as noticed by the Mysore decision. Without anything more it may be sufficient that the party refutes knowledge of the previous agreement. He could not be expected to do anything more by way of proving that he took the sale without notice. But in a case where there are other circumstances which reflect upon the case of bona fides of the subsequent purchaser mere denial may not be sufficient. The court would be obliged to assess the overall weight of the evidence in the case. That is how the case set up by defendants land 3 in this ease becomes relevant. The conduct of defendants 2 and 3 in filing the earlier suit on averments which are seen to be entirely different from and inconsistent with what are stated in the written statement here becomes relevant. Even the quantum of consideration said to have been paid under the sale Ext. B8 becomes relevant. In these circumstances we cannot agree with the court below that second defendant obtained Ext. B8 sale without notice of Ext. Al. The circumstances indicate that he was aware of the agreement Ext. Al and the sale deed B8 was taken with such notice. We are not really concerned with the sale of 10 cents, for, it is said that the plaint 50 cents is comprised in the property covered by Ext. B8 sale.