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2005 DIGILAW 380 (MAD)

S. Mustaffa v. Aabeeza Beebi alias & Others

2005-03-01

PRABHA SRIDEVAN

body2005
Judgment :- (Second Appeal under Section 100 of Civil Procedure Code against the judgment and decree, dated 30.06.1993, made in A.S.No.8 of 1990 on the file of District Judge, Pudukkottai.) The plaintiff, who has filed the suit for specific performance, is the appellant. He filed the above suit against respondents 1, 2 (Defendants 1 and 3) and one M.Subramaniam (Died), defendant No.2 in the suit. Respondents 3 to 6 are the legal representatives of the deceased Defendant No.2. The trial court decreed the suit. The first appellate court reversed it and restricted the decree to a part of the suit property holding that the remaining parts being two shops had been purchased by respondents 2 and husband of Respondent No.3 on the ground that they are bonafide purchasers for value without notice. This second appeal has been admitted on the following substantial question of law. "Whether the Lower Appellate Court had erred in placing onus of proof on the plaintiff to establish that the defendants 2 and 3 are not bonafide purchasers for value without notice of the suit agreement". 2. The learned counsel for the appellant submitted that Ex.A-1 sale agreement, which is sought to be enforced, was found to be genuine by both the courts below. The case of the first respondent was that the appellant had fraudulently obtained an agreement from her in respect of the entire property, whereas what she intended to convey to him was only one shop, namely, the shop in respect of which the appellant was in possession. At this juncture, it must be stated that the suit property consists of three shops. The appellant, respondent 2 and the husband of respondent No.3 were all tenants under the first respondent and each in possession of one shop. The learned counsel for the appellant submitted that inspite of this defence taken by the first respondent in the written statement, both the courts have found that the document was genuine. Therefore, what is follow is that there was an agreement between the parties to sell all the three shops to the appellant. Once that finding has become final, there would be no justification to restrict the decree to one shop. The learned counsel submitted that the respondents had not proved that they were bonafide purchasers for value without notice. 3. Therefore, what is follow is that there was an agreement between the parties to sell all the three shops to the appellant. Once that finding has become final, there would be no justification to restrict the decree to one shop. The learned counsel submitted that the respondents had not proved that they were bonafide purchasers for value without notice. 3. The learned counsel for the respondents submitted that the appellate court had correctly found that the appellant had deliberately obtained this sale agreement Ex.A-1 secretly and without knowledge of respondent No.2 and the husband of respondent No.3 in respect of all the three shops, whereas that was never the intention of the first respondent. The learned counsel submitted that the pleadings and the evidence would clearly show that the second respondent and the husband of third respondent are bonafide purchasers. 4. Ex.A-1 sale agreement is dated 20.06.1983. On 11.09.1983, the appellant issued a notice calling upon the first respondent to execute the sale deed, since she was postponing the execution of registration of the sale deed. There was no reply and, therefore, the appellant sent a telegram on 15.09.1983 expressing his willingness and readiness and requesting the first respondent to execute and register the sale deed on the very same day. The first respondent refused to receive the telegram. In paragraph 4 of the plaint it is stated that respondent No.2 and the husband of respondent No.3 were aware of the sale agreement and in fact, the appellant had objected to their purchasing the suit property when he came to purchase the suit property. According to the pleadings, respondent 2 and the husband of the third respondent are not bonafide purchasers. The first respondent, after filing written statement, remained ex-parte. According to her, the agreement between the parties was to sell that portion to the person in occupation. Therefore, what was intended to be sold was the three shops to three persons, namely, the appellant, respondent No. 2 and the husband of respondent No.3. 5. According to the written statement filed by the first respondent, there was an oral agreement between the first respondent and respondent No. 2 and the husband of third respondent and since she trusted them, no agreement was entered into. 5. According to the written statement filed by the first respondent, there was an oral agreement between the first respondent and respondent No. 2 and the husband of third respondent and since she trusted them, no agreement was entered into. Then the second respondent and third respondent's husband promised to make ready necessary funds and get the sale deeds registered on the same date and accordingly, on 12.09.1983, they paid the sale consideration and got the sale deeds registered in their favour. These sale deeds are Exs.B-1 and B-2. According to the first respondent, the appellant entered into an agreement on 20.06.1983 (Ex.A-1) only for the shop that was in his possession. The first respondent believed the appellant and signed the agreement. The recitals were read out to the first respondent's sister's husband, but however, with a view to defraud her and the second respondent and the husband of the third respondent, the appellant had prepared an agreement contrary to what was agreed to between the parties and had also obtained the first respondent's signature. The first respondent denied that the appellant had ever approached her with necessary funds for the execution of the sale deed. According to her, it is only when the suit notice was received by her. she knew about the appellant's intention. According to the first respondent, the second respondent and the third respondent's husband had obtained the sale deeds for consideration of Rs.3000/- and Rs.5000/- respectively in respect of the shops in their occupation. 6. The second respondent and the third respondent's husband filed a written statement together. They pleaded that all of them jointly approached the first respondent for negotiating the sale of the shops in their occupation and the first respondent agreed to do so and the sale consideration for the second respondent shop and the third respondent's husband shop was fixed. They promised to have the sale deed registered after making arrangement for the funds. However, the appellant, after stating that he would prepare an agreement for the shop in his occupation, produced an agreement which had been previously filled-up by him and got the signature of the first respondent. According to their written statement, this fact came to their knowledge only after the suit was filed. They have filed an additional written statement claiming that they were bonafide purchasers for value without notice. 7. According to their written statement, this fact came to their knowledge only after the suit was filed. They have filed an additional written statement claiming that they were bonafide purchasers for value without notice. 7. The question whether the appellant was ready and willing and whether the sale agreement Ex.A-1 is true is now beyond controversy. The finding regarding the same have become final. The only question is with regard to the entitlement of respondent No.2 and the legal representatives of the deceased defendant No.2, namely, respondents 3 to 6. 8. In chief examination, the appellant has stated that when respondent No. 2 and the husband of the third respondent told him that they are going to obtain sale deeds in their names, he raised an objection. According to him, Exs.B-1 and B-2 have been brought about only to defraud him. The appellant had denied that he had prepared Ex.A-1 and obtained the first respondent's signature by falsely representing to her that Ex.A-1 is only in respect of the shop in his possession. In cross examination, it has been elicited from the appellant (P.W.1) that he informed respondent No. 2 and the husband of the third respondent that he is going to purchase all the three shops and that there after they should pay the rent to him and if necessary vacate the two shops and that they agreed. He has specifically stated that 15 or 20 days prior to Ex.A-1, he informed them to this effect. 9. P.W.2, is the witness in Ex.A-1. He has stated in his evidence that respondent No. 2 and the husband of respondent No.3 knew about Ex.A-1 about three days after the agreement. P.W.3 is the scribe of Ex.A-1. He has denied that Ex.A-1 was read out to indicate that what was intended to be sold is only the shop in the occupation of the appellant. P.W.4 has also attested in Ex.A-1 and he has also denied that the first respondent had signed the Ex.A-1 without knowledge of its contents. 10. D.W.1 is the second defendant, the husband of the third respondent. P.W.4 has also attested in Ex.A-1 and he has also denied that the first respondent had signed the Ex.A-1 without knowledge of its contents. 10. D.W.1 is the second defendant, the husband of the third respondent. He has stated in his evidence that when the suit summons was received by him, he went and asked the first respondent and he was informed by her that the agreement was to sell the respective shops to three persons and that the appellant has lodged a false case and that the first respondent said that the agreement was only for one shop. He has further stated that since the first respondent indicated urgency, he sold his wife's jewels and got Ex.B-1 sale deed registered and that both he and the second respondent made ready the necessary funds hurriedly. Extraction of his evidence is relevant. "....vdf;F gpuhJ nehl;O][; te;jgpwF 1k; gpujpthjpia fz;L nfl;nld;. mtuth;fs; ,lj;Jf;Fjhd; fpiuak; brhd;ndd;. mth;fs; bgha; tHf;F nghLtjw;fhf ,g;go bra;jpUf;fpwhh;fs; vd;W brhd;dhh;fs;. ehd; 1 filf;Fjhd; mf;hpbkz;l; bfhLj;njd; vd;W brhd;dhh;fs;. 1Mk; gpujpthjp mtrug;gLj;jpajhy; tPl;oy; kidtp eiffis tpw;W vf;];gpl; gp.1 gj;jpuj;ij Koj;njd;. ehDk; 3k; gpujpthjpa[k; mturkhf gzk; gpul;o fpiuak; Koj;njhk;...." 11. According to the learned counsel for the respondents, the words 'gpuhJ nehl;OR' refers to the suit summons. That cannot be so, since the sale deed in favour of the respondents is dated 12.09.1983, whereas the suit was filed on 21.09.1983. The learned counsel submitted that 'gpuhJ nehl;OR' cannot refer to Ex.A-2 suit notice, since that was not sent to them. But, this would indicate that after receipt of notice and after making enquiries with the first respondent, the husband of the third respondent had hurriedly purchased the property. No doubt, it stated by the witness that the first respondent informed him that the case was false, but, in any event, the fact that he had enquired the first respondent shows that a doubt was raised in his mind, in which case, the burden is heavier on him to prove that he is a bonafide purchaser. A suggestion has been put to the witness to the effect that Ex.B-1 was executed without actual passing of consideration and that suggestion has been denied. Subsequently he has denied all the suggestion that he knew about the agreement in favour of the appellant. He has specifically stated that when there was an oral agreement with the first respondent he did not have money. Subsequently he has denied all the suggestion that he knew about the agreement in favour of the appellant. He has specifically stated that when there was an oral agreement with the first respondent he did not have money. He has denied the suggestion that the appellant has told him about Ex.A-1 on several times. The extract of his evidence is as follows. "... v-1I bghWj;J thjp vd;dplk; rfrd;dpakhf gy jlit brhy;ypapUf;fpwhh; vd;Wk; mnj nghy; o-2 tplKk; brhy;ypapUf;fyhk; vd;Wk; mjdhy; v-1 vq;fSf;F bjhpa[k; vd;W brhd;dhy; rhpay;y. ehd; 3k; gpujpthjpaplk; v-1I bjhpe;Jbfhz;L thjpia nkhro bra;a bgha;ahf fpiua gj;jpuk; jahh; bra;J bfhz;nld; vd;W brhy;tJ rhpay;y...." 12. D.W.2 is the second respondent. He has stated that when the first respondent proposed to sell the shops, they asked for time and one week thereafter when the first respondent came, he and the husband of the third respondent had the money ready. He has also stated that one week before the sale deed, there was an oral agreement and at that time, the appellant had entered into an agreement for Rs.3500/-, but that he did not tell the appellant about his oral agreement. He has also admitted that he was aware of the notice Ex.A-2. 13. The trial court came to the conclusion that it is difficult to believe the second respondent and the husband of the third respondent that they did not know about the agreement Ex.A-1. The appellate court has decided against the appellant on the ground that though in the chief examination the appellant had stated that respondent No. 2 and the husband of the third respondent knew about Ex.A-1, he has not specifically stated how they knew about Ex.A-1. This finding is contrary to the pleadings and evidence. In the pleadings he has stated that he objected to the sale and in the evidence he has stated that he informed them that he is going to purchase and that thereafter they should attorn the tenancy to him. The appellate court has not taken note of this fact. In cross examination the appellant had stated that he sent Ex.A-2 notice 15 days after the second and the husband of the third respondent told him about their intention to purchase, but, however, Ex.A-2 has been given one day before Exs.B-1 and B-2. From this, the appellate court came to the conclusion that it would show that the appellant had secretly purchased the property. 14. From this, the appellate court came to the conclusion that it would show that the appellant had secretly purchased the property. 14. The conclusion of the appellate court is not based on evidence and clearly the appellate court has misconstrued the documentary evidence before it. Ex.B-1 and B-2 are to the effect that the first respondent had received Rs.2000/- earlier as advance and Rs.1000/- in front of the Registrar as regards Ex.B-1 and as regards Ex.B-2, two thousand rupees had been received in advance and three thousand was received at the time of registration. The extracts from the documents are as follows. "....;ehd; jq;fsplk; Vw;fdnt ml;thd;rhf bgj;Jf;bfhz;lJ U:.2000/- ,e;j gj;jpuk; gjpt[ lak; hp$p];l;luhh; mth;fs; Kd;bgj;Jf;bfhs;tJ U:.1000/- Mf tif ,uz;oy; nkw;go fpiuaj; bjhif g{uht[k; vd; gj;jkhfptpl;lgoahYk;..." (Ex.B-1) "...(1)njjp Kd; ml;thd;];]hf ehd; bgj;Jf;bfhz;lJ U:/2000/- (2) ,e;jg; gj;jpuk; gjpt[ lak; hp$p];l;uhh; mth;fs; Kd; bgj;Jf;bfhs;tJ U:/3000/- Mf tif ,uz;oy; nkw;go fpiuaj; bjhif g{uht[k; vd; gj;jhfp tpl;lgoahYk;....." (Ex.B-2) This is totally contrary to the evidence of D.W.1 and D.W.2 who have clearly stated that on the date of the oral agreement, they did not have the money and subsequently, hurriedly they made ready the money by selling their wives' jewels and paid the sale consideration and on the very same day got the sale deeds registered. 15. The court granting specific performance is a court of equity and one has to balance the equity on both sides. In this case, from the above, it is clear that the recitals in Exs.B-1 and B-2 relating to payment of advance prior to the date of Exs.B-1 and B-2 are false as demonstrated by the evidence of D.W.1 and D.W.2, namely, the husband of the third respondent and respondent No.2. The conclusion of the appellate court that the appellant has not stated exactly how respondent No.2 and the husband of third respondent knew about Ex.A-1 is clearly incorrect, since it is his case that he himself informed them. It is evident from D.W.1's testimony that after the knowledge of the notice he had gone hurriedly to the first respondent and obtained the sale deed. None of these factors indicate that he is a bonafide purchaser for value without notice. 16. It is evident from D.W.1's testimony that after the knowledge of the notice he had gone hurriedly to the first respondent and obtained the sale deed. None of these factors indicate that he is a bonafide purchaser for value without notice. 16. In 2003 (1) CTC 539 -(M.Manoharadhas vs. C.Arumughaperumal Pillai and another), it was held as follows: "Specific Relief Act, 1963, Section 19-Bonafide purchaser-Person who purchases property when there exists an agreement whereby vendor has agreed to sell same property to another person has to prove that he is bonafide purchaser-Burden of proof is on such purchaser-appellant/purchaser failed to discharge his burden-appellant not bonafide purchaser." In AIR 2000 SC 2921 -(Ram Niwas v. Bano), it was held as follows: "18..... If the purchasers have relied upon the assertion of the vendor or on their own knowledge and abstained from making enquiry into the real nature of the possession of the tenant, they cannot escape from the consequences of the deemed notice under Explanation II to S.3 of the Transfer of Property Act. On this point, in the light of the above discussion, we hold that the purchasers will be deemed to have notice of Ext.1 should it be found to be true and valid." In (2005) 1 SCC 162-(Sargunam (died) by LR. vs. Chidambaram and another), it has been held as follows: "Specific Relief Act, 1963-Ss.20 and 19(b)-Suit for specific performance of agreement to sell property in question-Sale of suit property by vendor to D subsequent to its agreement with plaintiff-Relief-Entitlement to-D's contention that sale in her favour was in pursuance of her agreement with the vendor which was entered into prior to that of the plaintiff-Considering the evidence, held, it could not be said that D's sale deed (Ext.P-17) was executed pursuant to her alleged agreement (Ext.D-4)-Ext.D-4 was a concocted document-D had notice of plaintiff's agreement when she entered into conveyance-Sale to D was intended to defeat the claim of the plaintiff." In 2000 SAR (Civil) 738-(R.K.Mohamed Ubaidullah & Ors. vs. Hajee C.Abdul Wahab), it was held as follows: "Specific Relief Act, 1963, Sec.19 (b)-Plea of bona fide purchase in good faith-Onus of proof of-Lies on the person who takes the plea that he is an innocent purchaser..... vs. Hajee C.Abdul Wahab), it was held as follows: "Specific Relief Act, 1963, Sec.19 (b)-Plea of bona fide purchase in good faith-Onus of proof of-Lies on the person who takes the plea that he is an innocent purchaser..... Transfer of Property Act, 1882, Sec.3-Notice-Definition-Such notice maybe actual where the party has actual knowledge of the fact or constructive--"A person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search he ought to have made, or gross negligence, he would have known it. In the decision in 2001 (1) CTC 5 (Guruswamy Nadar vs. P.Lakshmi Ammal (Died) and thirteen others), it was held that Section 19(1)(b) Specific Relief Act protects purchaser if purchase is made bona fide in good faith and without notice of original agreement". 17. The first respondent was content with filing written statement stating that what she meant to convey to the appellant was only the shop that he was in possession of and nothing more and that the appellant included the recitals in Ex.A-1 fraudulently but, the first respondent did not get into the box to prove her case and, therefore, we would be justified in drawing a presumption that the case set up by her is not true. It has been held by the Supreme Court in VIDHYADHAR vs. MANIKRAO AND ANOTHER- ( (1999) 3 SCC 573 ) as follows: "16.It was Defendant 1 who contended that the sale deed executed by Defendant 2 in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only Rs.500 were paid as sale consideration to Defendant 2. He further claimed that payment of Rs.4500 to Defendant 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by Defendant 1 as he did not enter the witness-box. He did not state the facts pleaded in the written statement on oath in the trial court and avoided the witness-box so that he may not be cross-examined. This, by itself, is enough to reject the claim that the transaction of sale between Defendant 2 and the plaintiff was a bogus transaction. 17. He did not state the facts pleaded in the written statement on oath in the trial court and avoided the witness-box so that he may not be cross-examined. This, by itself, is enough to reject the claim that the transaction of sale between Defendant 2 and the plaintiff was a bogus transaction. 17. Where a party to the suit does not appear in the witness-box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh-(AIR 1927 PC 230). This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh-(AIR 1930 Lah.1) and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh (AIR 1931 Bom.97). The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawar ( AIR 1970 MP 225 ) also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath (AIR 1971 All.29) held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand ( AIR 1974 P&H 7 ) drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box." 18.From the above discussion, it is clear that respondent No.2 and the husband of the third respondent are not bonafide purchasers for value. There are materials to indicate that the respondents had not made the purchases in good faith. The lower appellate court had failed to see that it is the purchasers who have to prove they are bonafide purchasers without notice and has totally misconstrued the evidence. The second appeal is therefore allowed and the judgment and decree of the lower appellate court are set aside and that of the trial court are restored. However, there is no order as to costs.