Munna Lal v. Krishna Kumari — 1982 DIGILAW 827 (ALL)

JUDGMENT :- This is a plaintiffs second appeal. A suit was filed by Munna Lal for specific performance of an agreement dated 15-2-1969 on the allegations that (Shrimati) Krishna Kumari, his sister, was a co-sharer to the extent of 1/7th share in the disputed house. She was residing with her mother and needed money for her marriage. Consequently she entered into an agreement with Munna Lal, her brother, on 15-2-1969, to sell her 1/7th share of the house in question, for a consideration of Rs. 800. The entire sum was paid in advance. It was agreed that within two years of her marriage, Shrimati Krishna Kumari defendant No. 1, shall execute a sale deed in favour of the plaintiff. In the event of default he will be entitled to get the same executed through court. It was further alleged that after the marriage of defendant No. 1 she was asked several times to execute the sale deed but she avoided the same. On 8-2-1971, Shrimati Krishna Kumari executed a sale deed in favour of Shrimati Raj Kumari defendant No. 2 with respect to the same property for a consideration of Rs. 1,000. This sale deed was duly registered. It is also alleged that at the time of the execution of the sale deed defendant No. 2 knew very well about the agreement of the sale which existed between the plaintiff and defendant No. 1. The plaintiff thus prayed for a decree of specific performance of the contract. In the alternative, a prayer was made for a decree for Rs. 800. with interest. 2. The defendants contested the suit. Defendant No. 1 admitted the allegations in the plaint with regard to the agreement but alleged that she was always willing to execute the sale deed but the plaintiff committed default. As such she subsequently transferred the same in favour of defendant No. 2. Defendant No. 2 contested the suit on the grounds inter alia that at the time of the execution of the agreement between defendant No. 1 and the plaintiff, defendant No. 1 was a minor and as such the agreement was void. It was also pleaded that no consideration of Rs. 800 had passed between the parties. Defendant No. 2 further pleaded that she is a bona fide purchaser for value and as such the plaintiff was not entitled to any decree against her. 3. It was also pleaded that no consideration of Rs. 800 had passed between the parties. Defendant No. 2 further pleaded that she is a bona fide purchaser for value and as such the plaintiff was not entitled to any decree against her. 3. The Trial Court decreed the suit of the plaintiff. His findings were that the defendant No. 1 was not a minor at the time of the agreement entered into between her and the plaintiff on 15-2-1969. He also held that defendant No. 2 was not a bona fide purchaser because she did not make any enquiries from the members of the family of the plaintiff, before effecting the purchase. Aggrieved thereby an appeal was filed before the Additional District Judge, Etah, which has been allowed by him on 22nd Aug., 1974. The suit of the plaintiff for specific performance of contract had been dismissed and instead he had been granted a decree for Rs. 800 against defendant No. 1 with costs throughout. In these circumstances, the instant second appeal has been filed. 4. I have heard learned counsel for the parties and have also perused the impugned orders. I have also waded through the oral evidence on the record. This was necessary because the submission made by the appellants counsel was that the defendant No. 2 was not a bona fide purchaser for value. His submission was that due enquiries had not been made by the defendant No. 2 with respect to the house in dispute before making the purchase. He alleged that purchase had not been effected in good faith and if she had taken due care and made proper enquiries, she would have come to know the correct factual position. 5. The contention on behalf of the respondents counsel is that the considerations which apply to purchasers of property in cases where the same is transferred by ostensible owner under S.41 Transfer of Property Act are different from S.19 (b) Specific Relief Act. I have been referred to a number of cases by the counsel for the parties. 6. Counsel for the appellant has cited some of cases of Privy Counsel viz., AIR 1932 PC 228, AIR 1934 PC 68 and AIR 1946 PC 97. I have been referred to a number of cases by the counsel for the parties. 6. Counsel for the appellant has cited some of cases of Privy Counsel viz., AIR 1932 PC 228, AIR 1934 PC 68 and AIR 1946 PC 97. The ratio which can be derived after a perusal of these cases is that the initial burden of proving that the subsequent transferee is a purchaser in good faith and without notice, lies upon the transferee and not upon the transferor. It is the transferee who has to establish the circumstances which will entitle him to the benefit of this section. There can be no quarrel with this proposition of law. The question, however, is whether this burden has been successfully discharged or not? 7. From a perusal of the statement of defendant No. 2 the transferee Shrimati Raj Kumari and her husband Mathura Prasad D.W. 1, it is clear that negotiations for the sale of the property in question had taken place between the defendant No. 1 and Mathura Prasad acting for defendant No. 2. During the course of these negotiations enquiries were made by Mathura Prasad from defendant No. 1 whether there were any encumbrances etc. on the property in question and whether she had a good title thereto. Mathura Prasad, husband of defendant No. 2 also went to the registration office and made enquiries in order to verify whether any earlier transaction with respect to the same property in question had taken place or not. The enquiry revealed that no transaction had taken place. It is thus clear that the enquiries were made by the transferee and her relatives from the transferor as well as from the Registration Department and after she was satisfied on these enquiries that the property was free from encumbrances, she paid the amount of Rs. 1000/- which was the consideration settled between the parties. The appellate court has also recorded a finding that this consideration was bona fide paid. I find no reason to doubt this finding. 8. Counsel for the appellant has argued that it was necessary for the transferee to have made enquiries from the members of the family of the transferor, because the latter possessed a right of only 1/7th share in the home. I find no reason to doubt this finding. 8. Counsel for the appellant has argued that it was necessary for the transferee to have made enquiries from the members of the family of the transferor, because the latter possessed a right of only 1/7th share in the home. Because she failed to make such enquiries, therefore, it should be held that the transaction of sale which was entered subsequently between defendant No. 1 and defendant No. 2 was not entered in good faith. The question of good faith is always a question of fact, which depends upon the facts and circumstances of each case. No hard and fast rule can be laid down as to the quantum of evidence that should be produced to convince a court, that the party has acted in good faith. Therefore, no single circumstance by itself can have the effect of dislodging the Court from holding that a transaction has in fact been entered into in good faith. Other facts and circumstances may be good enough to satisfy the Court. In the instant case, as I have mentioned above, due enquiries were made by the transferee and her husband from the transferor and her husband. These enquiries were further backed by further investigations at the Registration office, to find out whether there had been any earlier transaction of sale with respect to the property in question. In my opinion, these circumstances are sufficient to attribute good faith to the transferee. On this basis it can also be safely held that the transferee had no notice of the earlier agreement which had been entered into between the plaintiff and transferor. As such, I am of the opinion trial the instant case would be fully covered by Section 19 (b) of the Specific Relief Act and as such the plaintiff would not be entitled to a decree for specific performance. In passing a reference may be made to a single Judge decision of this Court reported in AIR 1977 All 328 which has been cited by the learned counsel for the respondent, in which a view similar to the one which I have expressed above has been taken. 9. In the end, appellants Counsel has argued that he should be awarded interest on the amount of Rs. 800/- for which the suit has been decreed by the lower appellate court. 9. In the end, appellants Counsel has argued that he should be awarded interest on the amount of Rs. 800/- for which the suit has been decreed by the lower appellate court. While considering this question it cannot be forgotten that the plaintiff and defendant are brother and sister and Rs. 800/- had been paid by the brother to his sister for her marriage. However, the conduct of defendant No. 1 had not been overboard. She first entered into an agreement with her brother and subsequently effected a transfer in favour of defendant No. 2. It may serve the cause of justice in these circumstance to award interest at the rate of three per cent (3%) per annum on the sum of Rs. 800/- which was the consideration for agreement, from the date of agreement till the date of realization. The plaintiffs suit, therefore, for the recovery of Rs. 800/with interest at the rate of 3 per cent per annum as mentioned above, is decreed throughout, payable by defendant No. 1. 10. The second appeal is hereby dismissed as against defendant respondent No. 2 with costs of this Court. Order accordingly.