N. C. VENKATA REDDY v. R. RAJAGOPAL NAIDU — 1998 DIGILAW 795 (MAD)

Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) THE third defendant since deceased is the first appellant in this second appeal and the appellants 2 to 6 are his legal representatives. The plaintiff is the first respondent and the other respondents are the defendants 2, 4 and 5 respectively. ( 2 ) THE suit is one for specific performance of an agreement dated 16. 6. 1974. ( 3 ) , The case of the plaintiff is as follows: the suit property absolutely belonged to one doraisami Ammal, the first defendant, by virtue of a settlement deed executed by her uncle Dharma Reddy. The second defendant janakiraman is the son of the first defendant. The third defendant is the brother of the first defendant The plaintiff is a neighbouring land owner. The first defendant contracted to sell the suit property by an agreement dated 16. 6. 1974 for a sum of Rs. 14,500/ -. Out of this amount being sale consideration, Rs. 1,000/- was paid as advance. The balance amount was agreed to be paid within three months before the date of registration of the sale deed Within 10 days from the date of this agreement, the third defendant who is the brother of the first defendant abducted the first defendant and took her to Madras and got the sale, deed executed by the first defendant in favour of the third defendant and registered. The third defendant, in spite of the knowledge of the earlier agreement between the plaintiff and the first defendant, fraudulently got the sale deed registered. Therefore, the third defendant could not derive any title in the property. Hence, the suit for specific performance, delivery of possession, mesne profits and for costs ( 4 ) THE suit was contested by the defendants on the grounds that the agreement dated 16. 6. 1974 was not executed by the first defendant and therefore, it is not valid, that the sale deed was executed by the first defendant in favour of the third defendant on 27. 6. 1974 on receipt of the sale consideration, on the basis of the agreement for sale which was entered into as early as 12. 3. 6. 1974 was not executed by the first defendant and therefore, it is not valid, that the sale deed was executed by the first defendant in favour of the third defendant on 27. 6. 1974 on receipt of the sale consideration, on the basis of the agreement for sale which was entered into as early as 12. 3. 1974 between the first defendant and the third defendant and that thereafter the possession of the property was handed over to him and thus, the suit is to be dismissed as the agreement on the basis of which the relief was sought for by the plaintiff is a fabricated document. ( 5 ) ON the basis of the above pleadings, the trial court framed the following issues1. Whether the agreement to sell is true? 2. Whether the payment of Rs 1,000/- as advance is true? 3. Whether the plaintiff was always ready and willing to perform his part of the contract? 4. Whether the plaintiff is entitled to any profits and if so from which date and how much? 5. Whether defendant 3 is a bona fide purchaser for value without notice of prior agreement to sell7 6. To what relief is the plaintiff entitled? ( 6 ) ON the side of the plaintiff, P. Ws. 1 to 6 were examined and Exs. A1 to All were marked. On the side of the defendants, D. Ws. 1 to 5 were examined and Exs B1 and B2 were marked The trial court, on consideration of the materials placed before it, decreed the suit for the relief of specific performance and possession with costs and dismissed as far as mesne profits is concerned without costs. The unsuccessful third defendant filed an appeal in AS No 221 of 1981 on the file of subordinate Judges Court, Vellore. The lower appellate court as well ‘on consideration of the materials placed before it decided the point for determination in favour of the plaintiff/ respondent by confirming the judgment and decree passed by the trial court. Hence, the present second appeal by the third defendant. ( 7 ) I have heard the submissions of Mr t. P. Sankaran, the counsel for the appellants and Mr. S. Ramaswamy, the counsel for the respondent. Hence, the present second appeal by the third defendant. ( 7 ) I have heard the submissions of Mr t. P. Sankaran, the counsel for the appellants and Mr. S. Ramaswamy, the counsel for the respondent. ( 8 ) THE counsel for the appellants, in elaboration of the substantial question of law formulated by this court at the time of admission, would contend that the first appellant/ third defendant is a bona fide purchaser for the value without knowledge of the alleged agreement dated 16. 6 1974 that the plaintiff had never established that the third defendant got the sale deed dated 27. 6. 1974 executed in his favour having knowledge about the earlier agreement between the plaintiff and the first defendant dated 16. 6. 1974 and that while the said knowledge was denied by the reply notice issued by the third defendant and in the written statement, both the courts below ought to have held that the plaintiff had failed to prove that the first appellant/third defendant had any knowledge or notice of the alleged agreement dated 16. 6. 1974. He would also contend that the courts below erred in decreeing the suit in favour of the plaintiff for specific performance and possession without setting aside the sale deed dated 27. 6. 1974. It is further submitted that both the courts below have miserably failed to consider the question whether the third defendant is a bona fide purchaser of the property for value without notice, in the proper perspective. ( 9 ) ACCORDING to the counsel for the appellants, there is no evidence to show that the first and third defendants made any attempt before the District Registrar, Vellore, who registered the sale deed, to register the sale deed and there is no material to show that what sort of objection was raised by the plaintiff before the District Registrar, Vellore it is further submitted that there is a proper explanation given by the third defendant as to why the sale deed was registered at Madras instead of before the Registrar, Vellore ( 10 ) IT is strenuously argued by the counsel for the appellants that the burden of proof lies only on the plaintiff and that from the evidence adduced in this case, it is clear that the same has not been discharged on the side of the plaintiff. ( 11 ) ARGUING contra, Mr. ( 11 ) ARGUING contra, Mr. Ramasamy, by reading out the relevant portions of the judgments of the courts below, would contend in support and justification of the said judgments that all these points have been dealt with by the courts below in detail and findings have been given on meticulous consideration of the same It is further contended by the counsel for the first respondent/plaintiff that in the absence of any substantial question of law, the second appeal does not warrant any interference of this court, since there cannot be any reappraisal of evidence to arrive at a different conclusion, than the one concurrently arrived at by the Courts below, as contemplated under section 100 of CPC. ( 12 ) THE question that arises for consideration in this appeal is whether the conclusions arrived at by the courts below would suffer from any illegality which warrants interference of this court ( 13 ) AS laid down in Rarnchandra Ayyar v Ramalinga Chettiar, the lower appellate court is the final court of fact and even if there is any grievous error committed by the lower-appellate court,-it is not open to this court to interfere with the finding of fact arrived at by the lower appellate court. ( 14 ) NO doubt it is true that the burden of proof lies on the plaintiff to establish his case. But the question of the said burden loses its importance after both the parties have chosen to adduce evidence before the court. In Rebti devi v. Ram Dutt2 the Supreme Court holds thus:-"when both sides had adduced evidence, the question of burden of proof pales into significance. " ( 15 ) BEARING these principles in my mind, let me now go into the various points urged on behalf of the appellants. 15 (a) It is the case of the plaintiff that the first defendant executed an agreement in his favour on 16. 6. 1974 agreeing to sell the suit property to him for a sum of Rs. 14,500/-and that she received a sum of Rs. 1,000/-as advance ( 16 ) HOWEVER, it is the case of the first defendant, who was alive when the suit was filed, in her written statement that she had never executed such agreement. It is contended by the plaintiff that the second defendant, who is the son of the first defendant, has also signed, in the said agreement. 1,000/-as advance ( 16 ) HOWEVER, it is the case of the first defendant, who was alive when the suit was filed, in her written statement that she had never executed such agreement. It is contended by the plaintiff that the second defendant, who is the son of the first defendant, has also signed, in the said agreement. The second defendant did not file any written statement. ( 17 ) P. WS. 2 to 4 are the attestors to the said agreement Ex Al, P. W. 6 is the scribe, the document writer, who has written the said document. P. W. 5 was present when the said agreement was executed by the first defendant in favour of the plaintiff. All these witnesses despite the searching cross-examination would uniformly speak that the said agreement was executed by the first defendant on 16. 6 1974 in the house of her daughter and in the said agreement, the second defendant who did not contest the suit, also signed. ( 18 ) THE case of the first appellant/third defendant is that he did not know about the earlier document dated 16. 6. 1974 and as such, he is the bona fide purchaser by virtue of the sale deed executed in his favour on 27 6 1974 by the first defendant. Alternatively, it is his case in support of the first defendant that the said document dated 16 6. 1974 was never signed by the first defendant and as such, it was a fabricated document. ( 19 ) AS correctly pointed out by the counsel for the appellants, both in the reply notice sent by the third defendant and in his written statement, the third defendant would deny the knowledge of the existence of the earlier document. According to the counsel for the appellants, mere denial of the knowledge by the third defendant would suffice and as such, the burden of proof on the side of the third defendant had been discharged and hence, the same shifts on the plaintiff to prove that the third defendant had knowledge about the earlier agreement and that he was not a bona fide purchaser ( 20 ) IN the light of the citation referred to above it is well settled that while the evidence has been adduced by both the plaintiff and the defendants, the burden of proof loses its importance and pales into insignificance. ( 21 ) HOWEVER, it must be pointed out that the plaintiff, as correctly held by the courts below, had established by making appropriate averment in the plaint as well as through the oral and documentary evidence, with reference to the execution of the document on 16. 6. 1974 ( 22 ) IT is pertinent to note that the parent document Ex. A2 which is a settlement deed executed by Dharma Reddy, the uncle of the first defendant in favour of the first defendant on 1 9. 1947 was produced by the plaintiff before the court It is the case of the plaintiff that at the time of execution of sale agreement dated 16. 6 1974, Ex. A2 was handed over by the first defendant. This part of the evidence is spoken to by all the other witnesses examined on behalf of the plaintiff. On the other hand, there is no explanation whatsoever from the defendants either in the written statement or in the deposition given by the witnesses produced by the defendants as to how the plaintiff came into possession of Ex A2 which was executed in favour of the first defendant. ( 23 ) IN the light of these materials, the courts below have correctly come to the conclusion that the agreement "for sale Ex, Al dated 16. 6. 1974 was executed in favour of the plaintiff, by the first defendant on the said date on receipt of Rs. 1,000/-as advance out of the sale consideration of Rs. 14. 500/- ( 24 ) THE counsel for the appellants would vehemently contend that while it is the case of the defendants that the first defendant did not sign in Ex A1, the trial court ought to have sent the document for comparison and obtained the opinion of the expert in order to verify whether the plaintiffs case is true or not. ( 25 ) INCIDENTALLY, the counsel for the appellants would request this court to compare the admitted signature of the first defendant in the written statement with the signature in ex. Al The comparison process has been done by the trial court itself. On comparison, the trial court observed that they are identical. As requested by the counsel for the appellants, this court also compared those signatures and found that the finding of the trial court with reference to comparison, is perfectly correct. Al The comparison process has been done by the trial court itself. On comparison, the trial court observed that they are identical. As requested by the counsel for the appellants, this court also compared those signatures and found that the finding of the trial court with reference to comparison, is perfectly correct. ( 26 ) ONE other obvious fallacy that I could see from the submission made by the counsel for the appellants is that neither the third defendant nor the first defendant did not choose to file any application requesting the court to send the documents for comparison by expert The third defendant ought to have taken some steps to establish the same, more particularly when the first defendant made a specific plea in her written statement that she did not execute any agreement in favour of the plaintiff. In order to support the version of defendants, the second defendant also would have been examined as a witness to prove their plea But unfortunately the second defendant, the son of the first defendant, who is one of the signatories in the agreement did not choose to contest the suit ( 27 ) YET another feature that could be seen in this case is that though the finding has been given against the first defendant by the trial court, the legal representative of the first defendant after her death, did not choose to file any appeal either before the lower appellate court or before this court ( 28 ) THEREFORE there is no difficulty in coming to the conclusion that the finding with reference to the genuineness of the agreement dated 16 6 1974 given by the courts below, is valid and correct ( 29 ) AS indicated earlier, the plea made by the third defendant is two-fold (1) He was not aware of the existence of the earlier agreement, (2) The said agreement was a fabricated-document belatedly created in order to file this suit ( 30 ) AS referred to supra, there were no steps taken to establish that the said document was a forged one As regards the first plea, no material whatsoever placed by the third defendant for show that he was not aware of the said document ( 31 ) THE strenuous plea made by the counsel for the appellants is that mere denial of the knowledge could be sufficient In order to support his contention, he has cited the following authorities (1) Lekh Singh v Dwarka Math (2) Sancfa Theuar v Thanukodi ammal" (3) Sampat Ram v Baboo Lal (4) Banwan Lai v Syecf Muqtida khan (5) Ramchander Singh v Bibi asghari (6) Dhadidalaiv Basudeb Satpathy (7) Durga Prasad v Lilawati (8) Ram Lakhan v Ram Gownd (9) Rameshwar Singh v Han narayan Singh ( 32 ) THE principles settled with reference to the said aspect in the above decisions are as follows in a suit for specific performance of a contract if the plaintiff proves his pnor contract, the burden of proving a subsequent bona fide transfer for value without notice lies on the party alleging it In certain circumstances a mere denial, regarding want of knowledge of the plaintiffs contract would discharge this onus and shift the onus upon the plaintiff it is the true that the initial burden is always on the vendee to show that he had no knowledge of the earlier agreement But the vendee has to only discharge his burden by leading a negative evidence as soon as the plaintiff establishes the prior contract, the onus of proof that a third party has subsequently purchased the property bona fide, and without notice, is on the party who claims to be such purchaser section 27 (b) of Specific Relief Act does not in terms prescribe any enquiry on the part of the transferee, ‘good faith as defined by the General clauses Act means a thing done honestly, whether it is done negligently or not Honesty of intention is the essence of the expression "good faith". Thus, the onus of proving that the subsequent purchaser had no notice of a prior claim lies on such purchaser The onus of such a negative issue is ordinarily discharged by denial and by negative evidence " ( 33 ) ON the strength of these observations, the counsel for the appellants would urge that since there is a denial about the knowledge by the third defendant, it must be construed that the burden of proof was discharged by the third defendant by stating that ne had no prior knowledge of the earlier agreement. ( 34 ) ALL these decisions referred supra, in my view, would not help the appellants, since the case oh hand stands on a different footing with peculiar facts and circumstances of the case As stated earlier, alternative plea has been made by the third defendant Even according to the third defendant, the registration had to be done in the Registrars Office, vellore. In the instant case, the sale deed was registered at Madras ( 35 ) THE case of the plaintiff on the strength of a document Ex. A3 dated 27. 6 1974, the receipt for the payment of fees for objection petition issued by the registrars Office, Vellore, is that when the third defendant came for registration in the vellore Registrars Office, P. W. 1 came to the office and objected to the said registration on the ground that there is an earlier agreement dated 16. 6. 1974 by the first defendant in favour of the plaintiff Ex. A4 is the endorsement made by the Vellore Registrar. ( 36 ) THERE is no challenge with reference to this evidence and the documents Exs. A3 and A4 On the contrary, the third defendant who examined himself as D W. 1 would state that he went to the Registrars Office, Vellore on 27. 6. A4 is the endorsement made by the Vellore Registrar. ( 36 ) THERE is no challenge with reference to this evidence and the documents Exs. A3 and A4 On the contrary, the third defendant who examined himself as D W. 1 would state that he went to the Registrars Office, Vellore on 27. 6. 1974 for registration and that since the second defendant, the son of the first defendant came to the Registrars Office and created some trouble, they went to Madras and got it registered without the knowledge of the second defendant Curiously, this statement made in the deposition does not find a place in the written statement filed by the defendants 1 and 3 ( 37 ) FURTHERMORE, as admitted by the third defendant, on the said date the second defendant, the son of the first defendant gave a complaint to the Police stating that his mother, first defendant had been abducted by the third defendant These things would clearly reveal that the third defendant must be aware of the earlier agreement by 1st defendant with the plaintiff and that in order to avoid the execution of the sale deed in his favour, he got the sale deed registered in Madras without allowing the plaintiff and the second defendant from putting any hurdle in the process of his getting the sale deed registered. ( 38 ) THERE is yet another aspect of the matter, as pointed out by the courts below, that the court has to see that not only the transferee had no notice, but also to verify whether the sale consideration had been passed before the transferee had notice of previous agreement. ( 39 ) IN the instant case, on perusal of the evidence of the witnesses examined on behalf of the defendants, it is clear that no such sale consideration was given to the first defendant by the third defendant, though there is a recital in Ex. B2 that sale consideration was passed. As admitted by the third defendant in his evidence, he was not in a position to state that how and from whom he got the amount to give the balance sale consideration to the first defendant. ( 40 ) IN the written statement it is stated that the entire sale consideration was paid to the first defendant before she executed Ex. B2. ( 40 ) IN the written statement it is stated that the entire sale consideration was paid to the first defendant before she executed Ex. B2. But, in the evidence, D. W. 1 would state that he did not pay the sale consideration on 27. 6. 1974 The evidence of D. Ws. 1 to 5 with reference to the payment of consideration would show that these witnesses would give prerogative version over this aspect ( 41 ) IN such circumstances, the courts below are correct in concluding that there is no acceptable proof to show that the balance of sale consideration was given to the vendor. ( 42 ) UNDER Section 27 (b) of Specific Relief Act, four things are required to be established; (1) that the transfer is for value, (2) that the money has been paid, (3) that the purchase was done in good faith; (4) that the purchase including payment of money was without the notice of the original contract. ( 43 ) THE first two elements are positive and the last two elements are negative in character Taking into consideration of the materials placed by the respective sides, I am unable to conclude that the first appellant/ third defendant is a bona fide purchaser, as the things referred to above have not been established ( 44 ) AS held in Ram Das Alias Ram suraj v. Smt. Gandiabai and Ors, K. Chandra purkait v. Santosh Purkait and Ors. and motilat Daulatram Bora and Ors. v. Murlidhar ramchandra Bhutabe, this court would not embark upon a re-appreciation of the evidence to come to its own conclusion in a second appeal. ( 45 ) I would only add to say that I find that there has been proper and meticulous assessment of materials in the proper perspective by the courts below while recording the factual findings in favour of the plaintiff. In other words, findings concurrently recorded by both the courts below are not shown to be vitiated on account of total want of evidence or due to perversity of approach. Consequently, there is no scope of interfering with such a finding of fact in this second appeal ( 46 ) ACCORDING to K. Chandra Purkait v. Santosh Purkait and Ors. In other words, findings concurrently recorded by both the courts below are not shown to be vitiated on account of total want of evidence or due to perversity of approach. Consequently, there is no scope of interfering with such a finding of fact in this second appeal ( 46 ) ACCORDING to K. Chandra Purkait v. Santosh Purkait and Ors. (supra) the Apex court would hold that the parameters within which a new legal plea could be permitted to be raised in the second appeal are specifically stated in sub-section (5) of Section 100 CPC under the proviso, the court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law". But, in the instant case, I do not find any such question of law much less, the substantial question of law nor any perversity in the finding arrived at by the courts below. ( 47 ) IN view of the above, the second appeal fails and shall stand dismissed. No costs second appeal dismissed.