K R VENUGOPAL Vs. K R SRINIVASAN

JUDGEMENT

(1.) I. Facts in brief - Basis of plaintiff's claim: Plaintiff in the suit for specific performance is the appellant. The owner of the property, who is the brother of the plaintiff, is arrayed as the 1st defendant. Defendants 2 to 4 are the sons of the 1st defendant. The 5th defendant is the subsequent purchaser. The suit is filed on an agreement of sale alleged to have been executed by the 1st defendant in favour of the plaintiff under Ex.A-1 dated 19.03.1983. The terms of the agreement spell out that the consideration had been fixed as Rs.47,000/- and on the date of the agreement, an advance of Rs.5,100/- was paid and the balance of sale consideration was to be paid within a period of two months. According to the plaintiff, after the execution of the agreement, he learnt that there had been a mortgage, which was still outstanding with Shantha Devi and he paid Rs.20,000/- on 12.05.1983 and obtained a receipt under Ex.A-

(2.) YET another encumbrance was to a person, by name, Mythili and a portion of the debt was discharged by him by payment of Rs.9,790/- Corporation tax had not been paid and arrears to the tune of Rs.4,947.19 was paid by the plaintiff to the account of the 1st defendant. Electricity charges to the tune of Rs.1,667/- has also not been paid by the 1st defendant and the plaintiff had paid the said sum also. According to him, in all, he had paid Rs.41904.19 and the balance of Rs.5,095.81 was the only amount that remained payable and he was always ready and willing to pay the said amount. According to the plaintiff, without executing the sale deed, the 1st defendant had executed a sale in favour of the 5th defendant and the 5th defendant is not a bona fide purchaser and she had known all along that the plaintiff had an agreement in his favour. The contention, therefore, of the plaintiff was that the 5th defendant was bound to join with the 1st defendant in execution of the sale deed.II. The pleas in defence:2. The 1st defendant, who was the original owner of the property, had remained ex parte. Defendants 2 to 4 filed a written statement and participated in the trial and their case has been that the property being ancestral, it had been purported to be sold without valid necessity and hence, not binding on them. The 5th defendant has filed a statement and she is the principal contesting defendant. She has given the details of her purchase and contends that she is a bona fide purchaser for value without notice of the alleged agreement. The plaintiff has examined himself as P.W.1 and the 5th defendant's husband was examined as D.W.1.III. Disposition at the trial court:

(3.) LEARNED counsel for the appellant pointed out that if the amount, which the 5th defendant claimed as having been paid to the 1st defendant, which in turn was paid to Shantha Devi had been true, she would have secured the receipt for having discharged the loan with Shantha Devi, but still she did not take any steps to secure any document for having discharged the mortgage. Perhaps the most weighty argument on the side of the appellant is that the vendor had not been in possession of the entire extent of the property and that he was living at the first floor of the building. The plaintiff himself had been occupying a portion of the property at the ground floor and there were other tenants, as well. Therefore, the contention of the plaintiff is that the subsequent purchaser could never be a bona fide one, as a person who had made no enquiry about the character of possession of persons in possession. He made particular reliance on a decision of the High Court of Madras in the case of Veeramalai Vanniar Vs Thadikara Vanniar reported in AIR 1968 Madras 383. The decision spells out the conditions to be satisfied by the subsequent purchaser, if the protection under Section 19 of the Specific Relief Act is to survive. The decision states that the subsequent purchaser must have paid the full price in good faith without notice of prior agreement and such person must also enquire about the character of possession of person in possession.