Shahjahan Begum v. Virendra Kumar — 1986 DIGILAW 732 (ALL)

Judgment R.R. Misra, J. 1. THIS Second Appeal filed by the plaintiff is directed against the judgment and decree dated 30-10-1976 passed by the III Addl. District Judge Kanpur, whereunder he allowed the appeal of the defendant-respondents and set aside the decree for specific performance and possession and instead granted a decree to the plaintiff-appellant for recovery of Rs. 2140.00 only from Virendra Kumar and the estate of Surendra Kumar. 2. THE facts relevant to the present appeal are as under :- THE plaintiff-appellant had filed a suit for specific performance of a contract dated 3rd April 1969 for sale of House No. 89/321 situate in Gwebat Ullah Park, Bansmandi. Kanpur. Shamsher Ah, husband of the defendant respondent Smt. Sayeeda Khatoon are admittedly tenants of different portions of this house. It is not disputed that one Mathura Prasad was owner of the house in dispute. His death took place on 3-6-1956 before the Hindu Succession Act 1956 came into force. His wife Smt. Rani Kunwar, however, on 23rd July 1960 transferred one-third share of the property in dispute to one Brij Behari Dixit who was the daughter's son of Mathura Prasad deceased. Virendra Kumar and Surendra Kumar defendants claimed interest in the disputed house under a will said to have been executed by the Late Mathura Prasad in the year 1948. THE agreement of sale executed on 3rd April 1969 between the plaintiff and Virendra Kumar and Surendra Kumar was for a consideration of sale of Rs. 8000/-. THE earnest money paid at the time of the agreement was Rs. 2000/-. THE Agreement (Ex. 1) itself mentions that on the date of the agreement Virendra Kumar and Surendra Kumar, the executants of the agreement, have delivered possession of the house in question immediately after the said agreement to sell was executed. THE plaintiff, therefore, came in possession of the house in question immediately after the agreement on 3rd April 1969. It was further stipulated in the aforesaid agreement that the sale-deed was to be executed by the aforesaid Virendra Kumar and Surendra Kumar defendants in favour of the plaintiff within a period of six months. Subsequent to the aforesaid agreement of sale dated 3rd April 1969, Virendra Kumar and Surendra Kumar defendants, however, executed another sale- deed dated 22nd July 1969 in favour of Smt. Sayeeda Khatoon wife of Akbar Khan defendant no. 3 for a sum of Rs. 9000/-. Subsequent to the aforesaid agreement of sale dated 3rd April 1969, Virendra Kumar and Surendra Kumar defendants, however, executed another sale- deed dated 22nd July 1969 in favour of Smt. Sayeeda Khatoon wife of Akbar Khan defendant no. 3 for a sum of Rs. 9000/-. Since the aforesaid Virendra Kumar and Surendra Kumar failed to execute the sale-deed within a period of six months, the plaintiff, therefore, brought a suit on 22nd October 1969 for specific performance of the aforesaid contract of sale dated 3rd April 1969 against Virendra Kumar and Surendra Kumar and also impleaded Smt. Sayeeda Khatoon, Akhtar Khan and Mohammad Sabir Khan. THE plaint also contained a relief, in the alternative, for a decree for recovery of Rs. 2140/- along with pendentelite and future interest against Virendra Kumar and Surendra Kumar. Virendra Kumar, defendant no. 1, did not file any written statement. Surendra Kumar, defendant no. 2, however, in his written statement admitted the execution of the agreement of sale dated 3rd April 1969 and also receipt of earnest money of Rs. 2000/- aforesaid. The real contest in the case was between the plaintiff and Smt. Sayeeda Khatoon and Akhtar Khan defendants. They, in their defence, not only denied the execution of the agreement of sale in favour of the plaintiff and the payment of earnest money but also pleaded non-impleadment of Brij Behari Dixit and also rested their defence on the ground that they are bona-fide purchasers for value without notice. 3. THE trial court framed a number of issues including one as to whether the defendants Smt. Sayeeda Khatoon, Akhtar Khan and Mohammad Sabir Khan are bona-fide purchasers for value without notice of the agreement to sell and, if so, its effect. Another issue framed in the case was as to whether the suit was bad for non-joinder of Brij Behari Dixit. THE trial court, on a consideration of the evidence, led by the parties, held that the defendants Virendra Kumar and Surendra Kumar had, in fact, agreed to sell the house to the plaintiff and had executed the agreement of sale on 3rd April 1969 and had also received the earnest money in question. It was further held that the plaintiff was ready and willing to get the sale-deed executed and Virendra Kumar and Surendra Kumar had committed breach of agreement. It was further held that the plaintiff was ready and willing to get the sale-deed executed and Virendra Kumar and Surendra Kumar had committed breach of agreement. THE trial court further held that Smt. Sayeeda Khatoon and her sons and husband are not purchasers in good faith without notice. According to the trial court Brij Behari Dixit had no interest in the house and was not a necessary party. With these findings, the trial court decreed the suit of the plaintiff for specific performance of the contract dated 3rd April 1969. 4. THE defendants thereupon filed a first appeal which was ultimately decided by the III Additional District Judge, Kanpur by the impugned judgment dated 30th October, 1976. THE lower appellate court allowed the appeal of the defendants and set aside the decree for specific performance as aforesaid. Aggrieved against the aforesaid decision of the lower appellate court, the plaintiff Smt. Shahjahah Begum has preferred the present second appeal in this Court. 5. A perusal of the impugned judgment of the lower appellate court shows that on the question of burden of proof regarding notice it had relied solely on the case reported in Durga Prasad v. Smt. Lilawati, 1972 ALJ 945 wherein in paragraph 11 of the said judgment, a learned single Judge of this Court had observed as under :- "It was urged by the learned counsel for the respondent that the burden was on the appellants, who are the vendees to prove that they were pruchasers in good faith for value and without notice. It is true that the initial burden is always on the vendee to show that he had no knowledge of the agreement. But, the vendee has only to discharge this burden by leading a negative evidence. The negative evidence can only consist of his own statement denying the fact that he had knowledge of the same. It is true that the initial burden is always on the vendee to show that he had no knowledge of the agreement. But, the vendee has only to discharge this burden by leading a negative evidence. The negative evidence can only consist of his own statement denying the fact that he had knowledge of the same. As soon as the vendee denies knowledge of the notice, the burden is discharged and then the burden shifts on the vendor to prove that the vendee had the notice of the earlier agreement." Since the view of the lower appellate court was that the defendants had by their mere denial discharged the burden that lay on them and the plaintiff did not prove positively that the said defendants had notice of the aforesaid agreement of sale dated 3rd April 1969, the plaintiff has been non-suited by the lower appellate court. 6. IT is admittedly not the case of Smt. Sayeeda Khatoon and others vendee defendants-respondents that at the material time of execution of the sale- deed in their favour, they had made any enquiries from the plaintiff regarding her possession or title to the property Learned counsel appearing on behalf of the appellant has contended firstly that the view taken by the lower appellate court on the question of burden of proof is erroneous in law. According to him mere denial by the defendants is insufficient and something more is required to be done on behalf of the defendants in the nature of an enquiry and if the same has not been done, it cannot be held under the law that the defendants have discharged their burden of proof. The second argument advanced on behalf of the plaintiff-appellant is that on the question of notice of agreement to sell to the defendant-vendee the lower appellate court has ignored to consider material evidence in the case. The second argument advanced on behalf of the plaintiff-appellant is that on the question of notice of agreement to sell to the defendant-vendee the lower appellate court has ignored to consider material evidence in the case. It was pointed out that admittedly in the said house the plaintiff and Smt. Sayeeda Khatoon and her family were living and that on the date of the agreement that is to say on 3rd April 1969 possession of the property in suit was delivered by Virendra Kumar and Surendra Kumar defendants to the plaintiff and that the plaintiff was realising rent on that basis from the tenants of the house in suit and that Smt. Sayeeda Khatoon along with her husband and son was admittedly living on the first floor of the said house. It was further submitted that the plaintiff has in her statement on oath before the trial court stated that on the date of the agreement she had informed Smt. Sayeeda Khatoon about the agreement entered in her favour. The lower appellate court, according to the learned counsel for the appellant, has erred in not taking into consideration these pieces of material evidence and because of ignoring the same, the judgment given by the lower appellate court is vitiated in law. The third submission made by the learned counsel for the appellant is that the entire approach to the case made by the lower appellate court is erroneous in law as well, as on facts thereby introducing a substantial error or defect in procedure. Therefore, the said judgment of the lower appellate court is liable to be set aside in second appeal and the judgment of the trial court is liable to be restored. 7. MR. M. A. Qadeer, learned counsel appearing for the defendant- respondents, however, urged that the suit of the plaintiff is bad for non-joinder of Brij Behari Dixit who was owner of one-third share in the house in suit and the finding recorded by the trial court on Issue No. 4 which was framed in the case to the effect that the suit is not bad for non-joinder of Brij Behari Dixit, is erroneous in law. The second submission made by the learned counsel for the respondents is that the defendants had pruchased the property in question bona-fide without notice of the earlier agreement in favour of the plaintiff and the view taken by the lower appellate court in this regard is right in law. The next submission made on behalf of the respondents is that the findings of the lower appellate court are based on appraisal of the evidence and need not be disturbed. The last argument advanced on behalf of the defendant-respondents is that, at any rate, a reading of the agreement of sale (hereinafter referred to as the Agreement) will show that it was a case of contingent contract only and, therefore, the same cannot be specifically enforced. 8. I have heard learned counsel for the parties. In my opinion the arguments advanced on behalf of the appellant have force and deserves to be accepted. On the question of notice of Agreement to the vendee (whether actual or constructive) the lower appellate court failed in taking into consideration the various relevant materials and valuable evidence and also totally ignored to consider regarding possession of the plaintiff-appellant with effect from the date of Agreement itself and the circumstance that both the plaintiff and the defendants were residing in the same house and that the plaintiff was realising rent from the tenants of the house from the date of the Agreement. This failure on the part of the lower appellate court, in my judgment, amounted to a defect of procedure contemplated by Section 100 of the Code of Civil Procedure as held by their Lordships of the Supreme Court in the case of V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302 The findings recorded by the lower appellate court are vitiated in law and, therefore, liable to be interfered with in second appeal on the principles laid down by the Supreme Court in Smt. Sonawati v. Sri Ram, AIR 1968 SC 466 and the same are liable to be set aside. 9. THIS necessitates me to consider as to whether the case be remanded back to the lower appellate court for recording fresh findings or I should proceed to consider and record the findings of fact on the basis of materials already on record as contemplated by Section 103 of the Code of Civil Procedure. 9. THIS necessitates me to consider as to whether the case be remanded back to the lower appellate court for recording fresh findings or I should proceed to consider and record the findings of fact on the basis of materials already on record as contemplated by Section 103 of the Code of Civil Procedure. Now this suit was filed in the year 1969 and if it is remanded back, I think it will take another at least 14 years to have the matter decided again in second appeal by the High Court. The remand of the case is, therefore, not in the interest of the parties to the suit. I consider that in this case ends of justice will be better served if the later option is exercised. Hence I proceed to do the same accordingly. 10. THE Specific Relief Act is a special enactment prescribing rules as to the party against whom the remedy is available and the conditions subject to which it may be enforced against third parties who may claim an interest in same property. Section 19 (b) of the Specific Relief Act 1963 in so far as it is relevant for the purposes of the present case reads as under :- "19. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- (a) ......... (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract." Under the provisions of Section 19 (b) of the Specific Relief Act, the intention of the legislature is clear so as to adopt the equitable doctrine of notice in suits for specific performance to protect bona-fide purchasers for value and to treat at the same time the purchasers with notice as persons purchasing subject to the vendor's pre-existing contractual obligation or with notice of a trust in favour of the party entitled to specific performance. The bone of contention between the parties is as to whether the defendant no. 3 to 5 Smt. Sayeeda Khatoon and others had on the date of the execution of sale-deed in their favour any notice of the Agreement dated 3rd April 1969. This question regarding notice to the defendant falls to be considered into two parts. The bone of contention between the parties is as to whether the defendant no. 3 to 5 Smt. Sayeeda Khatoon and others had on the date of the execution of sale-deed in their favour any notice of the Agreement dated 3rd April 1969. This question regarding notice to the defendant falls to be considered into two parts. The first is whether, in fact, the defendants had notice of the Agreement in question. To consider this question of actual notice, direct and circumstantial evidence led by the parties in the case has to be examined. 11. WITH regard to direct evidence led by the parties upon scrutiny of the record, I find that the defendants had, in fact, notice of the Agreement. The plaintiff examined herself and stated on oath that she had told Smt. Sayeeda Khatoon, the defendant-respondent, about the Agreement on the same date when the same was executed. The trial court has examined this matter and after relying on the evidence of the parties, has also taken into consideration the fact that the statement of the plaintiff stood corroborated by the strong circumstance that the plaintiff and Smt. Sayeeda Khatoon, the defendant, along with her husband lived in different portions of the same house. This position is admitted to the parties. Therefore, it was natural for the plaintiff to have told about the fact of Agreement to Smt Sayeeda Khatoon and her family members. The trial court, therefore, believed this part of the evidence of the plaintiff and held that Smt. Sayeeda Khatoon and other defendants had actual notice of the aforesaid Agreement. On this aspect of the matter, the lower appellate court only said that since Smt. Shahjahan Begum stated about the notice only in her cross-examination, therefore the same is an afterthought testimony and reversed the finding of the trial court. I have gone through the evidence on record. In my opinion, this part of the finding recorded by the lower appellate court is not warranted by law. In my opinion, the finding recorded by the trial court appears to be correct and the same cannot be reversed merely on the ground that this fact was stated in the gross-examination because any fact which is stated in the cross-examination will not, therefore, automatically become an afterthought testimony. In my opinion, the finding recorded by the trial court appears to be correct and the same cannot be reversed merely on the ground that this fact was stated in the gross-examination because any fact which is stated in the cross-examination will not, therefore, automatically become an afterthought testimony. Under the circumstances, I am of the opinion that the plaintiff had by direct evidence proved actual notice in the case to Smt. Sayeeda Khatoon and her family members who are defendant-respondents. 12. THE above conclusion is warranted by circumstantial evidence as well. Proceeding on the lines indicated by the Supreme Court in the case of Dr. Govinddas v. Smt. Shantibai, AIR 1972 SC 1520 one has to see as to whether Smt. Sayeeda Khatoon had any knowledge of the earlier Agreement. In para 14 of the judgment, their Lordships have considered this question as under :- "THE learned counsel for the appellants contended that the onus of proof was very light on the appellants and they bad discharged it by entering the witness box and stating that they had no knowledge. We are unable to agree with him that in the circumstances of this case the onus was light on the appellants. THE circumstances that tell heavily against the version of the appellants are these. First, all the parties are residents or have shops in the same vicinity and in places like this it is not probable that the appellants would not come to know of the execution of the agreement (Souda Chitthii) of the plaintiff. Secondly, the haste with which the sale deed in favour of the appellants was executed was unusual. It is more usual for an agreement to be executed in such cases rather than arrive at an oral agreement on one day and have the sale deed executed the next day and registered the following day." This case of the Supreme Court has not been referred to by the lower appellate court in its judgment although its judgment is dated 30th October 1976. At the time of hearing of this appeal, learned counsel for the plaintiff-appellant relied heavily on this judgment of the Supreme Court. At the time of hearing of this appeal, learned counsel for the plaintiff-appellant relied heavily on this judgment of the Supreme Court. Therefore, the record of the case was examined and the admitted position that emerges from the same is as under :- The plaintiff Smt. Shahjahan Begum had not only examined herself as PW 1 but had also produced one Khuda Bux as PW 3 who had proved realisation of rent from the tenants after the plaintiff was put in possession of the property in pursuance of the Agreement. Not only that, the plaintiff as well as Smt. Sayeeda Khatoon, the defendant, were admittedly residing in the same house and it is natural, as held by the trial court, that the plaintiff must have told the defendants about the Agreement. The conclusion, therefore, on the basis of material on record is established by circumstantial evidence also that Smt. Sayeeda Khatoon, the vendee, had actual notice of the Agreement in question on the date of sale deed executed in her favour. 13. AFTER the above findings relating to notice of Agreement, one has to come to second part and see whether Smt. Sayeeda Khatoon can be imputed knowledge of the Agreement on the doctrine of constructive notice. It is worthy to note that Explanation II to Section 3 of the Transfer of Property Act takes care of this doctrine. The said Explanation reads as under :- "Explanation II-Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. " (emphasis supplied) 14. BEFORE I proceed to consider the import of the above Explanation, let me make it clear that the word " notice of the title " used in the above Explanation does not mean only a complete title in accordance with law but includes an equitable interest which a transferee may acquire in any property by virtue of and under a contract of transfer. Authority for this proposition is to be found in the case of Mahadeo Keshav Lingarkar v. Sharao Balwant Kesarkar, AIR 1972 Bombay 100. Authority for this proposition is to be found in the case of Mahadeo Keshav Lingarkar v. Sharao Balwant Kesarkar, AIR 1972 Bombay 100. This decision has been relied on in a recent decision of this Court in the case of Mam Chand v. Smt. Chandrawati, Second Appeal No. 2095 of 1971 decided an 8-5-1979, Before I explain the doctrine of constructive notice, I may mention that the above mentioned Explanation II was introduced into the Transfer of Property Act by the Amending Act 21 of 1929. Even prior to this amendment, the law, as declared in the decided cases, was that, when a person purchased property from the owner knowing that it is in the possession of another, he is under a duty to inquire into the nature of that possession, and, in the absence of such inquiry, knowledge of title under which possession is held, should be attributed to the purchaser. The leading case on the subject is that of. Daniels v. Davison, (1809) 16 Ves Jun 249 wherein the Lord Chancellor held that :- " Where there is a tenant in possession under a lease, or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession........that a tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity repelling the claim of a subsequent purchaser who made no enquiry as to the nature of his possession. " This decision was lateron relied upon in a number of Indian Cases and was cited with approval and followed in the following cases :- (1) Mancharji Sorabji Chulla v. Kongseoo, 6 Bombay HCROC 59 (2) Kondiba v. Nana, 27 Bombay 408 (3) Faki Ibrahim v. Faki Gulam Mohidin, AIR 1921 Bombay 459 (4) Baburam Bag v. Madhab Chandra Pollay, ILR 40 Calcutta 565 (5) National Bank of Australia v. Paul Hamilton Joseph, AIR 1920 PC 274 (6) Mohd. Aslam Khan v. Feroze Shah, AIR 1932 Privy Council 228 (7) Magoo Brahma v. Balkrishna Das, (1914) 18 Calcutta Weekly Notes 657 (8) Trilok Chand v. J. B. Bettie and Co., AIR 1926 Calcutta 204 (9) Parthasaradhi Iyer v. Subbaraya Gramani, AIR 1924 Madras 67 (10) Ibrahim v. Yusuf, AIR 1938 Lahore 39 (11) Harendra Chandra Das v. Nanda Lai Roy, AIR 1933 Calcutta 98 (12) Parvathathammal v. Sivasankara Bhattar, AIR 1952 Madras 265 (13) Ram Krishna v. Mahadei, AIR 1965 Patna 467 and (14) Mahadeo Kesheo Lingarkar v. Shamrao Balwant Kesarkar, AIR 1972 Bombay 100. 15. THE latest law on the point has been enunciated in three recent decisions of the Madras, Orissa and Travancore Cochin High Courts. In Veeramlai Vanniar v. Thadikara Vanniar, AIR 1968 Madras 383 the learned Judges have after referring to the leading decision in the case of Daniels v. Davison (supra) taken the view that in such cases the burden of proof is upon the subsequent purchaser to establish that he had no notice of the prior contract and it is only thereafter that his rights may prevail over the prior agreement of sale. This is founded on the principle that no person can convey a better title than what he has except where the statute provide exception to the rule like that contained in Section 19 (b) of the Specific Relief Act 1963. If the vendor has made any agreement of sale and subsequently in defiance thereof he makes a sale of the property to another person such subsequent transferee is conveyed the same title as the vendor had. All that the statute has stepped in to provide by way of exception to this rule is that the subsequent transferee should have notice of the prior agreement of sale. All that the statute has stepped in to provide by way of exception to this rule is that the subsequent transferee should have notice of the prior agreement of sale. In Dinesh Chandra Guha v Sacchidananda Mukherji, AIR 1972 Orissa 235 the question regarding the burden of proof in such cases has been stated thus :- "There can be no dispute that under Section 27 (b) (now section 19 (b)) of Specific Relief Act 1877, the circumstances which are required to be established by the subsequent transferee to successfully resist the claim of specific performance of a prior contract are firstly, the transfer is for value ; secondly, the money has been paid ; thirdly, the purchase was bona fide and lastly, the purchase including payment of money was without notice of the prior contract. THE first two elements are positive while the last two are negative and inferential". A Full Bench of the Travancore Cochin High Court in the case of Sastha Kumaraswamy v. Joseph Alasius, AIR 1950 Travancore Cochin 61 has also taken the view that where the vendor is not in possession of the property agreed to be sold, as admittedly in the present case i.e. the purchaser is bound to inquire into the nature of interest held by the person in possession and if he wilfully abstains from making inquiry, he cannot be said to be a transferee for value in good faith and without notice of the rights of the person in possession. 16. THEREFORE, the view uniformly taken in all the cases even before and after the addition of Explanation II by the Amending Act 21 of 1929 is that it is the duty of the subsequent purchaser to enquire from the person in possession as to the precise character in which he was in possession at the time when the subsequent sale transaction was entered into. In other words, the principle that emerges is that if a person purchases and takes conveyance of an estate which he knows to be in the occupation of a person other than the vendor, he is bound by all the equities which the person in such occupation may have in the land because his possession is prima facie seisin and the purchaser has, therefore, actual notice of a fact by which the property is affected and he is bound to ascertain the truth. The question that, therefore, arises is as to how the burden of proof contemplated under Clause (b) of Section 19 of the Specific Relief Act read with Explanation II to Section 3 of the Transfer of Property Act has been discharged in the present case. For the above, the lower appellate court in its judgment has relied solely on the case reported in Durga Prasad v. Smt. Lilawati (supra) and had held as under :- "So far as the question of notice is concerned as held in the case of Durga Prasad v. Smt. Lilawati, 1972 ALJ 945 initial burden lies on the subsequent transferees to prove that they are purchasers without notice. But once the vendee denies knowledge of the notice, the burden is discharged and then the burden shifts on the other side to prove that the vendee had the notice of the earlier agreement." 17. THIS view of the lower appellate court that the vendee stands to discharge his burden by mere denial of knowledge of Agreement, is, in view of the settled law stated above, patently erroneous in law and is liable to be set aside. As stated earlier, the case of the parties in the courts below has proceeded on the basis that before the execution of the sale-deed in question in favour of Smt. Sayeeda Khatoon, defendant transferee she had not made any enquiries from the plaintiff. Rather the case of Smt. Sayeeda Khatoon, defendant transferee had been that she was not on speaking terms with the plaintiff. Hence there was no occasion for the courts below to record any finding on this aspect of constructive notice to the defendant vendee. An examination of the record makes it quite clear that the record is silent on the point. Therefore, the presumption contemplated by the deeming clause under Explanation II to Section 3 of the Transfer of Property Act is attracted to the case and Smt. Sayeeda Khatoon, the vendee, shall be deemed to have notice of the earlier Agreement in favour of the plaintiff. 18. LEARNED counsel for the defendant-respondents has during the course of arguments invited my attention to the following cases. The first case relied upon by him is S. Parthasarathy Aiyer v. M. Subharaya Gramany, AIR 1924 Madras 67. 18. LEARNED counsel for the defendant-respondents has during the course of arguments invited my attention to the following cases. The first case relied upon by him is S. Parthasarathy Aiyer v. M. Subharaya Gramany, AIR 1924 Madras 67. In this case their Lordships of the Madras High Court have held that to suggest that it is the duty of the proposed mortgagee or purchaser to attend on these premises and examine narrowly every one of those persons would be casting upon him an intolerable burden regarding constructive notice. The said decision also states that there is indeed strong authority to the contrary and refers to the cases Hunt v. Luck, (1901) 1 Ch. 428, Hunter v. Walters, (1871) 7 Ch. 75 and Manji Karim Bhai v. Hoorbai, (1911) 35 Bombay 342. Nothing has been indicated in the said ruling as to how the view taken in the contrary authorities referred to in the cases is erroneous in law and if so on what principle. In view of the leading case on the principle of notice in Daniels v. Davison (supra) and the subsequent various authorities of the various High Courts and the Privy Council which followed the said principle, I am unable to agree with the view taken by the Madras High Court in this case. The next case cited on behalf of the respondents is Hemraj v. Rustomji, AIR 1953 SC 503 . It is regarding the applicability of the doctrine underlying the provisions of Section 53-A of the Transfer of Property Act. The said case is distinguishable inasmuch as the person claiming under the transferor, referred to in Section 53-A of the Transfer of Property Act, is a person who claims under a title derived subsequently to the date of transfer and not anterior to the said date. Where, therefore, the plaintiff claimed possession of the property under a good and genuine contract of sale earlier in date to the defendant's contract and the defendant was not a transferee for value who had paid money in good faith, it was held in that case that Section 53-A of the Transfer of Property Act had no application. Moreover, as held in Chimna Thevar v. Ghanaprakesi Ammal, AIR 1979 Madras 47, Section 53-A of the Transfer of Property Act does not confer any right on the transferee. Under the said section no title passed to the transferee. Moreover, as held in Chimna Thevar v. Ghanaprakesi Ammal, AIR 1979 Madras 47, Section 53-A of the Transfer of Property Act does not confer any right on the transferee. Under the said section no title passed to the transferee. This section is available only as a defence and to serve as a bar against enforcement of rights by an owner of property and cannot be invoked for enforcing rights. In the present case it is the plaintiff only who can claim the benefit of Section 53-A of the Transfer of Property Act against the vendor-defendants. The said authority of the Supreme Court in Hemraj v. Rustomji (supra) therefore, has no relevance to the controversy raised in the present case. 19. THE third and fourth cases relied upon by the learned counsel for the respondents are of Bapu Ji v. Kuklaji, AIR 1954 Madhya Bharat 128 and of Murlidhar Marwari v. Lalit Mohan Sahu, AIR 1962 Orissa 86. These are again cases relating to the provisions of Section 53-A of the Transfer of Property Act and have no relevance to the controversy involved in this case. 20. THEREFORE, to sum up on this aspect of the case, I hold that Smt. Sayeeda Khatoon and her family members who are defendants-respondents nos. 3 to 5 had actual as well as constructive notice of the Agreement dated 3rd April 1969 much before the date of the sale-deed executed in their favour by Virendra Kumar and Surendra Kumar, vendors-defendants and that the aforesaid Smt. Sayeeda Khatoon and her family members are held to be not bona-fide transferees for value in good faith and without notice of the original contract of agreement to sell in favour of the plaintiff. Coming now to the remaining contentions urged on behalf of the defendants-respondents, the first is that the suit is bad for non-joinder of Brij Behari Dixit. No doubt the trial court had framed Issue no. 4 on the same but the finding recorded by the trial court was to the effect that the suit is not bad for non-joinder of Brij Behari Dixit because Smt. Rani Kunwar had no right to transfer the property as such. I, however, find that this plea which also involves investigation of facts, was not taken any where before the lower appellate court and the same cannot be allowed to be raised now. 21. I, however, find that this plea which also involves investigation of facts, was not taken any where before the lower appellate court and the same cannot be allowed to be raised now. 21. THE next contention is that the findings of the lower appellate court are based on appraisal of the evidence and need not be disturbed. This contention is not tenable in view of my earlier part of the judgment holding that the findings of the lower appellate court in the present case are vitiated in law and liable to be set aside, 22. THE other submission made, in the alternative, by the learned counsel for the respondents is that, at any rate, the Agreement in question was in its nature a contingent contract and the same cannot be specifically enforced. I, however, find that the same was neither pleaded by the defendants in their written-statements nor any issue was framed on the same. Such a new plea cannot be allowed to be raised for the first time in second appeal before the High Court as held by the Supreme Court in the case of Govind Prasad Chaturvedi v. Hari Dutt Shastri, AIR 1977 SC 1005 . The last submission made by the learned counsel for the respondents in the case may now be noticed. The argument of the learned counsel is that since the plaintiff-appellant has not sought any relief in the plaint for cancellation of the sale deed in favour of the defendants-respondents a suit for specific performance cannot be decreed I, however, find that this plea is not sustainable in law. The proper decree to be passed in a suit for specific performance is to direct subsequent purchaser, if any, to execute a conveyance to the plaintiff-see Subbiah Pillai v. Vellappa Naicker, 22 Madras Law Journal 124, Gaurishankar v. Ibrahim Ali, AIR 1929 Nagpur 298 and Mathai Thommen v. Thomas Mathew, AIR 1952 Travancore Cochin 199. The reason of rule is that in such a case the subsequent vendee only stands in the shoes of the vendor on whom it was obligatory to execute a conveyance on payment of money in pursuance of the agreement to sell. The reason of rule is that in such a case the subsequent vendee only stands in the shoes of the vendor on whom it was obligatory to execute a conveyance on payment of money in pursuance of the agreement to sell. A perusal of the decree passed by the trial court in the case will show that a decree for specific performance of contract of sale was passed on the lines as indicated in the Travancore Cochin case directing the defendants who included the vendors as well as the vendees to execute the sale-deed of the house in favour of the plaintiff in pursuance of the aforesaid Agreement. This contention, therefore, in my opinion, has no force. Moreover, the same was not advanced before the court below nor does it find place in the grounds of appeal before the lower appellate court. 23. IN the result, the appeal succeeds and is allowed. The judgment and decree passed by the lower appellate court is set aside and the decree of the trial court is restored with costs throughout. The defendants-respondents are directed to execute the sale deed of the house in suit in favour of the plaintiff within three months from today on depositing an amount of Rs. 6000/- (rupees Six Thousand) if not already deposited. It is further directed that expenses of registration and stamps etc. shall be paid by the defendants-respondents within one month from today. IN case the defendants fail to execute the sale deed within the aforesaid specified time, the same shall be executed by the court in favour of the plaintiff-appellant. Appeal allowed.