PARVATHATHAMMAL Vs. SIVASANKARA BHATTAR

JUDGEMENT

(1.) The third defendant, a woman is the appellant. The property in suit at one time belonged to the first defendant. On October 1926 he executed a usufructuary mortgage over it in favour of the plaintiff for a sum of Rs. 1,250. Some sixteen years later, that a to say on 29th September 1942, the first detenaant purported to sen me property to his daughter, the second defendant, lor a sum of Rs. 1,500. On 29th Septemoer 1943, defendants 1 and 2 entered into an oral agreement to sell the properly to the plaintiff for a sum of Rs. 2,050, out of which Rs. 1,250 was to be adjusted towards the usufructuary mortgage which the plaintiff held. There were certain execution proceedings in connection with this property which are not of present interest. On am May 1945, the first defendant sold the property to the third defendant for a sum of Rs. 2,000. The very next day the plaintiffs advocate sent a telegram to the third defendant informing her that she had made her purchase with notice of the contract of sale in favour of the plaintiff and intimating that a suit would be filed. Four days later, the plaintiff brought the suit out of which the present second appeal arises for specific performance of the agreement of sale.

(2.) Both the Courts below have found that the oral agreement set up by the plaintiff is true. On the question whether the appellant had notice of the agreement in favour of the plaintiff the trial Court recorded a finding in the affirmative. The lower appellate Court did not record a clear finding on that point but concluded that the appellant must be deemed to have had notice and in this view dismissed the third defendant's appeal. She has now come to this Court.

(3.) Mr. Bamachanara Aiyar, the learned Advocate for the appellant based his principle argument on Section 3 of the Transfer of Property Act: "'a person is saia to have notice or a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it." Three explanations follow, the second of which reads thus: