MUHAMMAD Vs. KUNHABDULLA

JUDGEMENT

(1.) This Second Appeal arises in a suit for declaration, that the suit property is not attachable in execution of the decree, Ext. B 2 in O. S. 658 of 1950, and for specific performance of an agreement by the first defendant to sell her 1/3 share. The property belonged in jenmom to Kunhipathumma, the mother of defendants 1 & 2, and was outstanding on mortgage with Chandu. Later, Kunhipathumma gave a mortgage, Ext. A 9 with power to redeem the earlier mortgage and after her death, the second defendant gave a puramkadam Ext. A 4, both in favour of the plaintiff who is the appellant. The second defendant then sold his 2/3 share of the property to the plaintiff by Ext. A 5 on the 12th January 1951. On the 5th September, 1951, the first defendant agreed by Ext, A 1 to sell her 1 3 share to the plaintiff. Defendants 1 and 2 sued the 3rd defendant in O. S. 658 of 1950 for alleged trespass on the property and in execution of the decree for costs therein, the 3rd defendant proceeded against the property by attachment and sale. It was then purchased by the 4th defendant, who is the contesting respondent in this appeal. The plaintiff's case so far as the purchase in execution of the first defendant's 1/3 share is concerned is, that the 4th defendant had notice of Ext. A 1 and so acquired no title thereto by his purchase. The 4th defendant had set up various contentions which were negatived concurrently by the two courts; but his plea that he had no notice of Ext. A 1, though rejected by the first court, was accepted by the Subordinate Judge in appeal and survives for decision in second appeal. The decree as it now stands is in favour of the plaintiff for the 2/3 share of the second defendant and for the refund of money received by the first defendant under Ext. A 1.

(2.) In second appeal, the only point urged, was whether the 4th defendant is a transferee with notice of Ext. A 1 or not. Learned counsel for the plaintiff relied on S.40 of the Transfer of Property Act for contending, that Ext. A 1 is enforceable against a transferee with notice of the agreement for sale. In the light of S.2(d) of that Act, the 4th defendant, being a transferee by operation of law in execution of a decree, is no transferee within the meaning of S.40. So the reliance on that provision is misplaced. Learned counsel then relied on S.27 of the Specific Relief Act, the material part of which is in these terms:

(3.) What is the quantum of proof to be expected in the case of a purchaser at an execution sale. In Nur Mahommed Paerbhoy v. Dinshaw Hormasji Motiwalla AIR 1922 PC 393 at 396 Lord Dunedin observed, that "judicial sales would be robbed of all their security, if vague references to antecedent contracts could be held to invalidate the buyer's title." In that case, the statement made by a Kirtikar, a pleader who was acting on behalf of the plaintiff, relied on as evidence of notice of the prior contract was held to be "far short of such unequivocal notice as ought...to have been given in the case of a Court sale." Even in the case of private sales, the decisions which have considered the point as to the quantum of evidence, seem to hold one way. In Kirtarath Bai v. Srinat Rai AIR 1928 Allahabad 307, Sulaiman, J., as he then was, observed thus: