ARUNACHALA THEVAN Vs. MADAPPA THEVAR

JUDGEMENT

(1.) This second appeal arises out of a suit for specific performance of an agreement for sale of certain properties entered into by defendant 1 with the plaintiff on 20 November 1927. Defendants 2 to 5 denied the agreement but both the Courts have found in favour of its genuineness. On 29 November 1927 defendant 1. executed a sale deed in respect of the same properties in favour of defendants 2 to 5. Hence this suit for specific performance. Defendants 2 to 5 contended that they were bona fide purchasers for value without notice of the plaitiffs's agreement, and this point was raised by issues 2 and 3. The trial Court found against defendants 2 to 5 on both points and decreed the plaintiff's suit. The lower appellate Court has reversed that decision and dismissed the plaintiff's suit. Hence this appeal.

(2.) Though at the end of para. 8 of its judgment, the lower appellate Court winds up with the words: Defendants 2 to 5 have discharged the onus of proving that they were bona fide purchasers for value without notice of the agreement, I cannot help thinking that the lower Court has not realized that the defendants must establish both parts of the plea, viz., absence of notice and payment of consideration without notice. On the question of notice, I am not disposed to interfere with the finding of the lower appellate Court, that even at the time of the registration of the sale deed in their favour it has not been shown that defendants 2 to 5 had notice of the agreement in plaintiff's favour.

(3.) In setting out the points for determination, in para. 5 of its judgment, the lower appellate Court curiously enough refers only to the absence of knowledge of the prior agreement and forgets the other ingredient of payment of consideration before notice. Section 27, Clause (b), Specific Relief Act, will disentitle the plaintiff to specific performance only if defendants 2 to 5 are found to be transferees for value who have paid their money in good faith and without notice of the original con-tract. By a misapplication of certain cases where no question of specific performance arose the learned Subordinate Judge starts the discussion of the question of payment with the following three sentences: The consideration for Ex. C is quite foreign to the scope of this suit. Even if no consideration passed for that document, that is a matter purely between defendants 2 to 5 on the one hand and defendant 1 on the other. After the registration of the document, title clearly passed to defendants 2 to 5 and if no consideration passed, it is the look out of defendant 1 himself.