B KUTPUDDIN Vs. ZULEIKA BIBI

JUDGEMENT

(1.) THE 7th defendant in O. S. No. 82 of 1977, on the file of the Court of Subordinate Judge, Tiruchirappalli, is the appellant in the above second appeal. THE 1st respondent/plaintiff filed the suit for recovery of Rs. 7 ,332 being the principal and interest due as damages for the amount paid by the plaintiff to safeguard her title in respect of the B schedule property and in default of such payment, for a direction for the sale of the A schedule property for the payment of the said amount.

(2.) THE case of the plaintiff before the Courts below was that one Muthukaruppan Chettiar and his brother Saminathan Chettiar sold a building to the plaintiff described in the B schedule, on 25. 6. 1960 under sale deed, the original of which is marked as Ex :b.4 and a registration copy of the same is marked as Ex. Al , for valuable consideration of Rs. 6,000 claiming themselves to be the full and exclusive owners of the building. THE 1st defendant is said to be the son of Muthukaruppan Chettiar , one of the vendors, and defendants 2 to 5 are said to be the heirs of Saminathan Chettiar , the other vendor, of the plaintiff. Though the vendors assured the plaintiff about their full and exclusive title to the property sold, subsequently, the mother of the vendors , filed O. S. No. 70 of 1963 on the file of Sub Court, Thiruchirapalli , claiming partition of the properties by impleading the present plaintiff, as the 9th defendant. THE said suit ended in an appeal before this Court in A. S. No. 976 of 1996, wherein, it was confirmed that the plaintiffs vendors had title only to 98/120 shares in all the properties. THE said judgment was considered to operate as res judicata and when steps were taken to pass a final decree, the plaintiff was compelled to negotiate with the successful plaintiffs in the other suit and ultimately, she had to pay Rs. 7 ,000 for the said share of 22/120 to have the property purchased by her exonerated from the defect in its title. Defendants 6 and 7 are said to be the subsequent purchasers of portions of A schedule property, shown as security to safeguard the full and effective title of the vendor. It was in such circumstances the suit came to be filed for the relief, as noticed supra.

(3.) ON the above claims and counter claims, oral and documentary evidence came to be adduced on both sides and the learned trial judge by judgment and decree dated 2. 2. 1980, decreed the suit as prayed for by passing a preliminary decree on the view that the plaintiff has proved her claim that she had paid Rs. 7,000 as per the receipt, marked as Ex:a12, in order to protect the title by compromise effected with the plaintiff in the earlier suit and that the defendants are liable to reimburse the plaintiff of the same and in default of which, it is open to the plaintiff to proceed against the A schedule property. The learned trial judge also held that the 7th defendant is a subsequent purchaser of the A schedule property, and he should have verified the encumbrance in respect of the property before purchase and had he taken such minimum and reasonable care, he would not have courted such a trouble and therefore, he cannot claim to be a bona fide purchaser for value without notice.