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2003 DIGILAW 1357 (MAD)

Saraswathy v. Meenakshy & Another

2003-08-27

S.SARDAR ZACKRIA HUSSAIN

body2003
Judgment :- The second defendant in O.S.NO.103 of 1987 on the file of the Principal Sub Court, Pondicherry is the appellant herein. The first respondent who is the plaintiff filed a suit for specific performance of contract of sale and for permanent injunction. The parties are described as per their rankings in the suit. 2. Following are the plaint averments: The first defendant is the owner of the suit property and he entered into an agreement of sale on 10.7.1984 with the plaintiff agreeing to convey the suit property for a sum of Rs.15,500/-. The first defendant also received a sum of Rs.12,500/- towards part of sale consideration from the plaintiff at the time of execution of the suit agreement. The plaintiff's mother-in-law viz. Rukmani is the sister of the first defendant. Rukmani and her husband were living in the suit property for the past 20 years. The plaintiff after her marriage had come to reside in the suit property along with her husband and mother-in-law. As per the suit agreement the first defendant has agreed to execute the sale deed in favour of the plaintiff and convey the suit property within three months from the date of the obtaining permission under Urban Land Ceiling Act. At the instance of one Kaliyavaradan, son of Perumal of Veemakoundanpalayam the plaintiff and the first defendant jointly applied for permission for the sale of suit property under the Urban Land Ceiling Act and necessary permission was also granted. When the plaintiff requested the first defendant to execute the sale deed after receiving the balance sale consideration, the first defendant refused to execute the sale and demanded higher price. The first defendant in collusion with the second defendant entered into a subsequent agreement dated 4.10.1984 for the sale of suit property to defeat the rights of the plaintiff. Both the defendants have also obtained a decree for specific performance to the suit property in O.S.NO.41/85 on the file of First Additional Sub-Judge, Pondicherry. The second defendant does not get any right by virtue of said decree. The second defendant is the neighbour of the plaintiff. The first defendant failed to perform his obligation as per the agreement and hence, both the defendants have to jointly execute the sale deed in favour of the plaintiff. The plaintiff caused lawyer's notice on 27.7.1986 and the defendants refused to receive the same. The second defendant is the neighbour of the plaintiff. The first defendant failed to perform his obligation as per the agreement and hence, both the defendants have to jointly execute the sale deed in favour of the plaintiff. The plaintiff caused lawyer's notice on 27.7.1986 and the defendants refused to receive the same. The plaintiff is always ready and willing to perform her part of the contract. The defendants are also interfering with the peaceful possession and enjoyment of the suit property by making untenable claims. Hence, the plaintiff filed a suit seeking the above said reliefs. 3.The first defendant remained ex parte. The suit was resisted by the second defendant by filing a written statement. In the written statement, the second defendant has stated that he had obtained decree in her favour for specific performance in O.S.NO.41/1985 on the file of the First Additional Sub Judge, Pondicherry. This decree was obtained on merits and not on collusion between the defendants 1 and 2 as claimed by the plaintiff. The suit in O.S.NO.41/1985 was contested by the first defendant. The first defendant offered to sell the suit property for a sum of Rs.15,500/- by entering into an agreement. The first defendant also received a sum of Rs.2000/- as advance on 4.10.1984. As per the said agreement, the first defendant agreed to sell the property within one month from the date of permission obtained to effect the sale of the property. The second defendant taken steps to get necessary permission from the Competent Authority after obtaining signature of the first defendant and also handed over the token to the first defendant for further getting the permission. But as against the agreement, the first defendant made a representation to the Competent Authority stating that he was withdrawing the application. The second defendant caused lawyer's notice but the first defendant refused to receive the same. So the second defendant filed O.S.No.41/85 on the file of the First Additional Sub Judge, Pondicherry and obtained decree. After decree the second defendant filed E.P.No.131/87 for execution sale deed in his favour as per the decree. The other averments of the plaint have been denied. Since the plaintiff is closely related to the first defendant, she tried to avoid the bonafide transaction between the second and first defendants by creating some ante-dated instrument. After decree the second defendant filed E.P.No.131/87 for execution sale deed in his favour as per the decree. The other averments of the plaint have been denied. Since the plaintiff is closely related to the first defendant, she tried to avoid the bonafide transaction between the second and first defendants by creating some ante-dated instrument. The first defendant obviously executed an agreement on 5.7.1982 agreeing to sell the property in favour of the second defendant. The period of agreement dated 4.10.84 was over as the plaintiff has no money to buy the suit property and subsequent agreement was entered. It is denied that the plaintiff have been in possession of the suit property along with parents-in-law. The father-in-law of the plaintiff one Vinayagam has executed a lease deed in favour of Mannangatti, son of Ramachandran, brother of the first defendant as on 6.8.1978 and was in occupation of the undivided part of plot owned by the first defendant and his brother Ramachandran. 4. The trial court examined the plaintiff's husband as P.W.1 and two other witnesses as P.Ws. 2 and 3 and marked Exs. A.1 to A.12. On the side of the defendants, the second defendant's husband was examined as D.W.1 and other witness D.W.2 and also marked Exs.B.1 to B.10. The trial court after framing necessary issues and on considering the evidence adduced on either side, both oral and documentary, dismissed the suit in respect of specific performance of contract against the plaintiff and decreed the suit for refund of Rs.12,500/- with interest at 12% per annum from the date of suit agreement dated 10.7.1984 against the first defendant granting six months time for the payment and also dismissed the suit against the second defendant. The plaintiff as against the dismissal of the suit in respect of specific performance of contract of sale preferred an appeal in A.S.NO.113/91 on the file of the II Additional District Judge, Pondicherry. The Appeal was allowed granting decree as prayed for after receiving balance sale consideration. The judgment and decree of the Appellate Court is under challenge in this second appeal. The Appeal was allowed granting decree as prayed for after receiving balance sale consideration. The judgment and decree of the Appellate Court is under challenge in this second appeal. 5.At the time of admission, the following substantial question of law was framed for consideration: "Whether the judgment of the Court of Appeal below is erroneous for the reason that it has not gone into the question of ante-dating of the alleged agreement for sale Ex.A2 and in not taking into account the circumstances fully established by Exs.B2 and B8, the application filed for the exemption of the land in question from the urban ceiling". 6. The learned counsel for the appellant made the following submissions: It is contended that the Appellate Court was erred in assuming that Ex.A.2 is genuine. As the agreement in favour of the second defendant was entered subsequent to Ex.A.2, the finding that the second defendant is not the bonafide purchaser for value without notice is not correct. Since the plaintiff and the first defendant are closely related, to defeat the rights of the second defendant and to nullify the decree obtained by him in O.S.NO.41/85, the plaintiff filed the suit by creating ante dated suit agreement viz., Ex.A.2. The learned counsel further submits that Ex.A.2 dated 10.7.84 did not see the light of the day till long after the suit filed by the second defendant. The stamp paper of Ex.A.2 itself was purchased from an unauthorised stamp vendor i.e., from a grocery shop owner. There is vital discrepancy with regard to the consideration of sale i.e. according to the document Ex.A.2 Rs.15,000.00, according to Ex.B.8 Rs.10,000.00 and according to evidence Rs.20,000.00. The attestor is unable to speak in his evidence with regard to passing of consideration by Ex.A.2 who is the scribe of the document. He further submits that the sale agreement Ex.B.1 entered between the defendants 1 and 2 is a registered document and necessary permission was also obtained from the competent authority. The attestor of the document has also been examined on the side of the second defendant. The parent document was also given to the second defendant by the first defendant. 7. The learned counsel for the appellant brought to the notice of this Court two decisions rendered by this Court. The attestor of the document has also been examined on the side of the second defendant. The parent document was also given to the second defendant by the first defendant. 7. The learned counsel for the appellant brought to the notice of this Court two decisions rendered by this Court. (i) In a decision reported in PALANISAMY SERVAI (DIED) AND OTHERS vs. VEERABADRAN SERVAI (DIED) AND OTHERS (2002 (1) T.L.N.J 32), this Court following the decision of SANTHOSH HAZARI vs. PURU SHOTTAM TIWARI ( 2001(1) SUPREME 642 ), observed at page 34 as follows: "It is not in dispute that in this cae, the lower appellate court has nowhere dealt with as to the correctness of the findings of the trial Court. The lower appellate Court has given independent reasonings for arriving at the conclusion. In view of the decision of the appellate Court stated supra, while reversing the judgment and decree of the trial court, the lower appellate Court ought to have given reasonings as to how the trial Court was wrong. But the lower appellate Court has not given any such finding". (ii) In MOHANDOSS vs. THE REVENUE DIVISIONAL OFFICER, MADURAI ( 2003 (3) CTC 18 ), this Court has observed at page 21 as: "In fact, it is a settled position of law that to reverse a well considered finding given by the trial Court, there should be valid and convincing reason, but unfortunately, no such reason has been given as to why the overwhelming documents have to be ignored. The approach by the lower appellate Court is not proper and correct." 8.The learned counsel for the first respondent/ plaintiff mainly argued that the second defendant has not made out the case that the second defendant is not a bonafide purchaser of value without notice and the agreement entered between the plaintiff and the first defendant viz., Ex.A.2 dated 10.7.1984 is a concocted one. Only to defeat the rights of the plaintiff, the defendants 1 and 2 colluded with each other as if the first defendant entered into sale agreement with the second defendant under Ex.B.2 dated 4.10.1984 and the second defendant filed O.S.No.41/85 for specific performance of contract of sale and pursuant to which suit was decreed. After the decree the first defendant executed the sale deed in favour of the second respondent as per the execution petition filed by the second respondent. 9. After the decree the first defendant executed the sale deed in favour of the second respondent as per the execution petition filed by the second respondent. 9. The learned counsel for the first respondent/ plaintiff brought to the notice of this Court a decision of the Apex Court in R.K.MOHAMMED UBAIDULLAH vs. HAJEE C.ABDUL WAHAB (2000 6 SUPREME COURT CASES 402). The Supreme Court has ruled, "Bonafide purchaser in good faith for value without notice of original contract between person in actual possession and owner of the suit property, unless such purchaser has made appropriate inquiry, he cannot be establish his bonafides. Since subsequent purchaser is deemed to have notice under Explanation II of Section 3 of Transfer of Property Act, of the title of the person in actual possession, such purchaser must make inquiries about the nature of the possession and the title on the basis of which such person is in possession on the date of the subsequent purchase. If such an inquiry is not made, it would mean that the purchaser wilfully refrained from making the inquiry or grossly neglected to do so. Such purchaser cannot establish his bonafides as a purchaser in good faith and cannot restrain sale to person in possession". The Supreme Court further observed, "subsequent purchaser must prove his bonafides, protection under Section 19(b) of bonafide purchaser for value without notice is in the nature of an exception to the general rule. Therefore, the burden of proof of good faith is on the purchaser who pleads that he is an innocent purchaser. Good faith is a question of fact which must be considered and decided on the facts of each case". 10. The plaintiff Meenakshi is the wife of P.W.1. Rukmani is the mother of P.W.1 and sister of the first defendant. The first defendant as the owner of the suit property entered into an agreement of sale with the plaintiff as per Ex.A.2 on 10.7.1984. As per agreement, the first defendant agreed to convey the suit property to the plaintiff for a sum of Rs.15,500/-. As per deed Ex.A.2 he also received a sum of Rs.12,500/- at the time of the agreement. Further it was agreed as per Ex.A.2 that the sale has to be executed within three months after obtaining order from the Government and after receiving balance sale price of Rs.3000/-. As per deed Ex.A.2 he also received a sum of Rs.12,500/- at the time of the agreement. Further it was agreed as per Ex.A.2 that the sale has to be executed within three months after obtaining order from the Government and after receiving balance sale price of Rs.3000/-. The first defendant did not execute the sale deed in favour of the plaintiff but instead the first defendant agreed to sell the same property to the second defendant who is the wife of D.W.1 as per sale agreement Ex.B.1 dated 4.10.1984. As per Ex.B.1 the first defendant agreed to sell the suit property for a sum of Rs.15,500/- and on the same date of the agreement it appears that as per the deed, he also received a sum of Rs.2000/- towards the sale price amount. It has further agreed as per Ex.B.1 that the sale deed has to be executed within one month after obtaining order from the Government. Though such agreement was entered into between the first and second defendants, the first defendant made necessary application for the sale of the property in favour of the second defendant only on 25.1.1985 as seen from Ex.B.8 in which sale price amount is mentioned as Rs.10,000/- and pursuant to such an application, the first defendant was permitted to sell the suit property on 29.4.1985. 11. In the meantime the second defendant filed a suit for specific performance in O.S.NO.41 of 1985 dated 11.1.1985 against the first defendant. Certified copy of plaint is Ex.A.5. The first defendant filed a written statement in the suit on 3.4.85 and the copy is Ex.A.6. The first defendant along with the suit also filed I.A.NO.140/85 seeking permanent injunction from alienating the suit property to any third party in violation of suit contract entered into between the defendants 1 and 2. Copy of the affidavit and petition are Exs.A.7 and A.8. The suit was posted for trial on 28.8.86 and from which date it appears the hearing of the suit was advanced to 31.7.86 as per order in I.A.NO.2457/86. The petition copies are Exs.A.9 and A.10. On 31.7.86 the suit O.S.NO.41 of 1985 filed by the second defendant against the first defendant was decreed since the first defendant though filed written statement submitted to a decree. Copy of the judgment and decree are Exs.A.11 and A.12 and also Ex.B.3. The petition copies are Exs.A.9 and A.10. On 31.7.86 the suit O.S.NO.41 of 1985 filed by the second defendant against the first defendant was decreed since the first defendant though filed written statement submitted to a decree. Copy of the judgment and decree are Exs.A.11 and A.12 and also Ex.B.3. On the same day it appears that the first defendant also received a sum of Rs.3000/- towards balance sale price amount under Ex.B.10. 12.Since the first defendant did not execute the sale deed, the second defendant moved E.P.No.131 of 1987 and when Execution Petition was pending, it appears the first defendant executed the sale deed on 26.4.1988 in favour of the second defendant. Ex.B.4 is the photo copy of original sale deed. The balance sale consideration of Rs.10,500/- was paid in the Court on 3.9.1987. 13. The plaintiff in order to execute the sale deed in her favour pursuant to Ex.A.2, caused lawyer's notice under Ex.A.3 on 27.7.1986 to the defendants 1 and 2. Notice sent to the defendants 1 and 2 were returned under Ex.A.4 on 31.7.1986, on which date it appears the suit in O.S.No.41/85 ended in favour of the second defendant since the first defendant submitted to a decree though he filed written statement in that suit. In the notice Ex.A.3 it is mentioned that despite the sale agreement Ex.A.2, the first defendant also entered into agreement of sale on 4.10.1984 with the second defendant in connection of which, there have been a suit pending between the defendants 1 and 2. The lawyer's notice under Ex.A.3 dated 27.7.86 was returned unserved on 31.7.86, on which date the suit was decreed since the first defendant submitted to a decree. 14. The first defendant has not been examined either by the plaintiff or by the second defendant and the first defendant became ex parte in the suit. As rightly pointed out by the first Appellate Court, out of entire sale price amount of Rs.15,500/- at the time of execution of Ex.A.2, Rs.12,500/- was paid to the first defendant, which is more than 80% of the sale price amount and balance sale price amount was only Rs.3000/-. As rightly pointed out by the first Appellate Court, out of entire sale price amount of Rs.15,500/- at the time of execution of Ex.A.2, Rs.12,500/- was paid to the first defendant, which is more than 80% of the sale price amount and balance sale price amount was only Rs.3000/-. As such the plaintiff was willing for completion of the sale as soon as the permission was obtained from the competent authority and in fact it appears that the plaintiff and the first defendant made a joint application seeking permission to the competent authority and Ex.B.2 dated 13.10.1984 issued could have been only for such joint application made by the plaintiff and the first defendant. The first defendant did not cause any notice to the plaintiff for the completion of sale after paying balance sale price amount of Rs.3000/- or to cancel the agreement since permission was not granted by the competent authority but instead the first defendant entered into agreement under Ex.B.1 on 4.10.84 within three months from Ex.A.2 which is a registered agreement agreeing to sell the property to the second defendant for the same price of Rs.15,500/- and at the time of agreement as per deed Ex.B.1 he also received a sum of Rs.2000/-. This agreement could have been registered to defeat the rights of the plaintiff under Ex.A.2. If really, the agreement entered between the first and second defendants is true and not came into existence in collusion between the defendants 1 and 2, they could have made application to the competent authority for the sale of the property after filing of the suit for specific performance on 11.1.1985. But such permission was sought for by the defendants 1 and 2 under Ex.B.8 on 25.1.1985. For which, it appears that permission was granted on 29.4.1985. There is nothing to indicate as stated by the second defendant/appellant that the application made by the defendants 1 and 2 previously withdrawn by the first defendant as stated in the plaint in O.S.No.41 of 85. Even in the application made under Ex.B.8 the defendants 1 and 2 to the competent authority the sale price amount is mentioned as Rs.10,000/-. If really, the agreement Ex.B.1 is true agreement, the sale price amount could have been correctly set out under Ex.B.8, instead it is only mentioned as Rs.10,000/-. 15. Even in the application made under Ex.B.8 the defendants 1 and 2 to the competent authority the sale price amount is mentioned as Rs.10,000/-. If really, the agreement Ex.B.1 is true agreement, the sale price amount could have been correctly set out under Ex.B.8, instead it is only mentioned as Rs.10,000/-. 15. There is another circumstance that Ex.B.1 was brought out in collusion between the defendants 1 and 2. Though the first defendant filed a written statement in a suit in O.S.No.41/85 on 3.4.1985 as seen from Ex.A.6, ultimately the suit ended in favour of the appellant viz., the second defendant herein since the first defendant submitted to a decree on 31.7.1986 for which purpose, the hearing of the suit was advanced from 28.8.1986 as can be seen from Ex.A.9 to A.12. The suit in O.S.No.41 of 1985 for specific performance filed by the second defendant against the first defendant was decreed on 31.7.1986 since the first defendant submitted to a decree. Pursuant to the said decree, the first defendant did not execute the sale deed in favour of the second defendant and according to the second defendant he filed E.P.No.131 of 1987 and during the pendency of such Execution Petition, the second defendant paid a sum of Rs.10,500/- towards balance sale price amount of Rs.13,500/- under Ex.B5 dated 3.9.1987, pursuant to the challan order dated 2.9.1987. Despite the fact that such execution petition was filed, the first defendant executed the sale deed on 26.4.1988. The photo copy of the original sale deed being Ex.B.4. 16.Though it appears that the plaintiff along with her husband, P.W.1 and his mother Rukmani who is the sister of the first defendant have been residing in the suit house, the evidence for second defendant did not disclose as to what steps were taken to verify the nature of possession of the property at the time when Ex.B.1 agreement was entered into in collusion between the defendants 1 and 2 and to defeat the rights enumerated to the plaintiff under Ex.A.2. As such, the second defendant is not a bona fide purchaser for value without notice of earlier sale agreement under Ex.A.2 dated 10.7.1984 in favour of the plaintiff by the first defendant. As such, the second defendant is not a bona fide purchaser for value without notice of earlier sale agreement under Ex.A.2 dated 10.7.1984 in favour of the plaintiff by the first defendant. No evidence was let in on the side of the second defendant, that he made enquiry before entering into an agreement with the first defendant under Ex.B.1 dated 4.10.1984, over the title of the suit property to the first defendant and as regards the actual possession of the suit property and on what basis the plaintiff and his family continues to reside in the suit property. So, it cannot be said that the second defendant acted in good faith for entering into the sale agreement under Ex.B.1 dated 4.10.1984 when the agreement between the plaintiff and the first defendant under Ex.A.2 dated 10.7.1984 was subsisting. The first Appellate Court has given reasons in setting aside the judgment of the trial court. 17.Further it is mentioned that though the first defendant filed written statement in O.S.No.41/85, in paragraph 2 it is mentioned that prior to agreement Ex.B.1 dated 4.10.1984, the first defendant entered into sale agreement as per Ex.A.2 dated 10.7.1984 with the plaintiff who is closely related to the first defendant and only in the event of failure on the part of the plaintiff to purchase the property, the first defendant will sell the property to the second defendant and which was also agreed by the second defendant/plaintiff in O.S.No.41/85. Despite the statement filed as such in that suit, the second defendant being the plaintiff in O.S.No.41/85, did not take steps to implead the plaintiff herein as the second defendant in that suit for effective adjudication of the dispute between the parties. 18.Therefore, considering all these facts, the first Appellate Court rightly decided in favour of the plaintiff and such judgment is correct in appreciation of facts which does not call for interference and it has to be confirmed. 19. In result, the second appeal fails and the same is dismissed with costs. The judgment and decree in A.S.NO.113 of 1991 on the file of the II Additional District Court, Pondicherry is confirmed.