S MUSTAFFA Vs. AABEEZA BEEBI ALIAS

JUDGEMENT

(1.) THE plaintiff, who has filed the suit for specific performance, is the appellant. He filed the above suit against respondents 1, 2 (Defendants 1 and 3) and one M. Subramaniam (Died), defendant No. 2 in the suit. Respondents 3 to 6 are the legal representatives of the deceased Defendant no. 2. THE trial court decreed the suit. THE first appellate court reversed it and restricted the decree to a part of the suit property holding that the remaining parts being two shops had been purchased by respondents 2 and husband of Respondent No. 3 on the ground that they are bonafide purchasers for value without notice. This second appeal has been admitted on the following substantial question of law. "whether the Lower Appellate Court had erred in placing onus of proof on the plaintiff to establish that the defendants 2 and 3 are not bonafide purchasers for value without notice of the suit agreement".

(2.) THE learned counsel for the appellant submitted that ex. A-1 sale agreement, which is sought to be enforced, was found to be genuine by both the courts below. THE case of the first respondent was that the appellant had fraudulently obtained an agreement from her in respect of the entire property, whereas what she intended to convey to him was only one shop, namely, the shop in respect of which the appellant was in possession. At this juncture, it must be stated that the suit property consists of three shops. THE appellant, respondent 2 and the husband of respondent No. 3 were all tenants under the first respondent and each in possession of one shop. THE learned counsel for the appellant submitted that inspite of this defence taken by the first respondent in the written statement, both the courts have found that the document was genuine. THErefore, what is follow is that there was an agreement between the parties to sell all the three shops to the appellant. Once that finding has become final, there would be no justification to restrict the decree to one shop. THE learned counsel submitted that the respondents had not proved that they were bonafide purchasers for value without notice.

(3.) THE question whether the appellant was ready and willing and whether the sale agreement Ex. A-1 is true is now beyond controversy. THE finding regarding the same have become final. THE only question is with regard to the entitlement of respondent No. 2 and the legal representatives of the deceased defendant No. 2, namely, respondents 3 to 6.