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2015 DIGILAW 2030 (MAD)

M. Bama v. R. Nirupama

2015-04-27

R.MAHADEVAN

body2015
JUDGMENT R. MAHADEVAN, J. 1. This Appeal Suit has been filed by the Plaintiff, who was unsuccessful before the Trial Court, aggrieved against the judgment and decree, dated 30.12.2011, made in OS.No.2488/2011, by the learned Additional District Judge, FTC III, Chennai. For the sake of convenience and for easy reference, in this judgment, the parties are hitherto described as they were arrayed before the Trial Court. 2. The case of the Plaintiff, as set out in the Plaint, is as follows:- a. The 1st Defendant is the owner of the property, viz. Old No.4, New No.5 and 6, Madhavaram High Road, Perambur, Chennai-1. The 1st Defendant had appointed the 2nd Defendant, as her lawfully constituted Power of Attorney Agent to deal with the said property, including the right to sell the same to prospective purchasers. The said Power of Attorney was executed by the 1st Defendant in favour of the 2nd Defendant on 15.7.2002 and the same was also registered on the file of the SRO, Sembiam as Doc.No.1383 of 2002. The 1st Defendant entered into a Joint Venture agreement, on the very same date with the 2nd Defendant under which, it was agreed that the Defendants 1 and 2 would be entitled to 40-60% respectively. The 2nd Defendant, in the capacity of the Power Agent of the 1st Defendant, entered into a sale cum construction agreement on 06.09.2002 with the Plaintiff's husband A. Manoharan, in respect of a flat in the proposed first floor construction. The Plaintiff's husband paid a sum of Rs.15,000/-, as advance, on the date of the agreement and subsequently paid a sum of Rs.1,00,000/- on 04.10.2002 and thereafter, another sum of Rs.2,10,000/- on 27.10.2002. The 2nd Defendant acknowledged receipt of the said amount, by necessary endorsements on the reverse of the agreement dated 06.09.2002. Since the 2nd Defendant was not able to show any progress in the construction and the old building alone had been demolished, the 2nd Defendant offered to transfer his 60% share in the property in favour of the Plaintiff's husband or his nominee. The Plaintiff was nominated as the transferee and a sale agreement was entered into between the Plaintiff and the 2nd Defendant, representing the 1st Defendant, as a duly constituted Power Agent on 15.10.2003 and the same was also duly registered on the file of SRO, Purasawalkam as Doc.No.3991/2003. The Plaintiff was nominated as the transferee and a sale agreement was entered into between the Plaintiff and the 2nd Defendant, representing the 1st Defendant, as a duly constituted Power Agent on 15.10.2003 and the same was also duly registered on the file of SRO, Purasawalkam as Doc.No.3991/2003. b. The sale consideration was fixed at Rs.5,00,000/- and a sum of Rs.3,00,000/-, out of the Rs.3,25,000/- paid by the Plaintiff's husband, was treated as advance and the agreement was that the balance sum of Rs.2,00,000/- would be paid by the Plaintiff, at the time of registration of necessary documents. The Plaintiff wrote a letter to the 2nd Defendant on 09.03.2004, but the 2nd Defendant evaded receipt of the said letter. Again on 05.05.2004 and again on 16.08.2004, the Plaintiff wrote to the 2nd Defendant, expressing her readiness and willingness to pay the balance sale consideration and complete the transaction. There was no positive response from the 2nd Defendant and thereafter, after repeated demands and requests, the 2nd Defendant came forward to receive the balance sale consideration of Rs.2,00,000/- and execute a written receipt for the same on 22.01.2005, on behalf of the 1st Defendant. Even after receipt of the entire sale consideration, the Defendants 1 and 2 did not come forward to register the sale deed in favour of the Plaintiff and hence, the Plaintiff issued a legal notice on 24.02.2006, calling upon them to execute the sale deed, for which, a reply with false allegations was sent by the 1st Defendant on 09.03.2006, to which the Plaintiff sent a rejoinder notice on 22.03.2006. The 2nd Defendant also sent a letter dated 13.03.2006, in reply to the notice stating that he could not register the deed, in view of the 1st Defendant not coming forward to hand over the original documents of title. About a few weeks back, a local broker in the locality came and informed the Plaintiff that the property was sold to a third party and whether the Plaintiff had settled the matter with the Defendants 1 and 2. The Plaintiff immediately applied for encumbrance certificate and came to know that the 3rd Defendant had purchased the suit property on 22.03.2006, including the 60% share, for which the Plaintiff had entered into an agreement and also paid the entire sale consideration. The Plaintiff immediately applied for encumbrance certificate and came to know that the 3rd Defendant had purchased the suit property on 22.03.2006, including the 60% share, for which the Plaintiff had entered into an agreement and also paid the entire sale consideration. The 3rd Defendant is not a bona fide purchaser for value, as the agreement between the Plaintiff and the Defendants 1 and 2 has been registered and the same is reflected in the encumbrance certificate. Knowing fully well that the agreement is subsisting, the 3rd Defendant in collusion with the 1st Defendant has proceeded to buy the property, which is not encumbered. c. The Plaintiff also applied for a certified copy of the document, under which the 3rd Defendant purchased the subject property from the 1st Defendant and the same does not even whisper about the agreement of sale between the Defendants 1 and 2 and the Plaintiff. It is a clear case of collusion between the Defendants 1 and 3, in order to defeat the rights of the Plaintiff. The Plaintiff is not bound by the sale deed as far as it related to 60% of the subject property, which is the property agreed to be sold to her under a registered agreement of sale. As already stated, the 3rd Defendant cannot even plead that he is a bona fide purchaser without notice, in view of the circumstances narrated above. d. The Plaintiff has always been ready and willing and has in fact also paid the entire sale consideration as early as on 22.01.2005 and only because of the internal problems between the Defendants 1 and 2, the sale consideration was pending. The Plaintiff, apart from seeking a relief of specific performance of the agreement of sale, is also advised to seek a declaration with regard to a portion of the sale deed in favour of the 3rd Defendant, in so far as it relates to the agreement of sale dated 15.10.2003. On 11.9.2008, the 3rd Defendant has alienated the land at No.4, New NO.5 and 6, Madhavaram High Road, Perambur, Chennai-11, in favour of the Defendants 4 to 7, when the above suit is pending and the same has been registered as Doc.No.3441/2008 in Book I, in the SRO, Purasawalkam. The 3rd Defendant, with sole intention to defeat the legal rights of the Plaintiff, has purchased the property from the 1st Defendant. The 3rd Defendant, with sole intention to defeat the legal rights of the Plaintiff, has purchased the property from the 1st Defendant. Therefore, the sale by the 3rd Defendant in favour of the Defendants 4 to 7 is illegal and void. In such circumstances, the suit has been filed to pass a judgment and decree:- (i) directing the Defendants 1 and 2 to specifically perform the agreement of sale dated 15.10.2003, (ii) declaring the sale deed dated 22.03.2006 as not binding in so far as it relates to the Plaintiff's 60% right/share in the same under the registered agreement of sale dated 15.10.2003 and more fully set out in the schedule and (iii) awarding costs of the suit. 3. In the Written Statement filed by the 3rd Defendant, which was adopted by the Defendants 4 to 7, it is averred as follows:- a. The 1st Defendant was the owner of the suit property. The 1st Defendant represented to the 3rd Defendant that she entered into a joint venture agreement with the 2nd Defendant, only for the purpose of promoting the site, by constructing flats and thereby the Defendants 1 and 2 agreed to share the profits after constructing the flats in the ratio of 40:60, according to the value fixed by the 1st Defendant. She further represented that since the 2nd Defendant did not take any steps to develop the property, the property is lying vacant and possession is with her and that the 2nd Defendant has not secured any prospective purchaser. The allegations, in paragraph 4 regarding payment of sale consideration, are not known to the 3rd Defendant. The 3rd Defendant filed a memo for inspection of plaint documents. During the inspection, it was found that the alleged agreement, dated 06.09.2002, has not been signed by both the parties to the agreement, but signed only by the 2nd Defendant and further found that the alleged agreement is not in the usual form as it ought to be. The 1st Defendant's signature, acknowledging the receipt of the payment of Rs.1 lakh, is not on the revenue stamp. Further, the date of execution of the agreement has been altered. All these acts only reveal that the said agreement has been prepared for the purpose of the case. The 1st Defendant's signature, acknowledging the receipt of the payment of Rs.1 lakh, is not on the revenue stamp. Further, the date of execution of the agreement has been altered. All these acts only reveal that the said agreement has been prepared for the purpose of the case. b. The allegations that since the 2nd Defendant was not able to show any progress in the construction, after demolishing the whole building, he offered to transfer his 60% share in the property (vacant land) in favour of the Plaintiff's husband's nominee is false and baseless. According to the joint venture agreement, the 2nd Defendant has been given only the right to promote the property and thereby, he is entitled to the profit out of 60% of the constructed area, after promoting the flats. Therefore, he has no right to transfer 60% of the vacant land to any third party. The term “joint venture agreement” is itself self speaking. The said agreement has been entered into, only because the 1st Defendant, by herself, could not promote the property individually and that is the reason why she nominated the 2nd Defendant as her agent, as he happens to be a builder. Therefore, the alleged agreement of sale of 60% of the vacant land is invalid, void, abinitio and will not bind the 1st Defendant. The agreement of sale, dated 15.10.2003 is non-est, in the eye of law and will not bind the 3rd Defendant. c. The allegations in paragraph 6 that the sale consideration was fixed at Rs.5 lakhs and a sum of Rs.3 lakhs was adjusted from the amount paid by the Plaintiff's husband towards advance and the balance of Rs.2 lakhs was agreed to be paid on the date of registration; that on 09.03.2004, the Plaintiff wrote a letter to the 2nd Defendant; that the 2nd Defendant evaded the receipt of the said letter; that again on 03.05.2004 and on 16.08.2004, the Plaintiff wrote letters to the 2nd Defendant, expressing her readiness and willingness to pay the balance of the sale consideration and thereby to complete the transaction; that there is no positive response from the 2nd Defendant; that on repeated demands and at request, the 2nd Defendant came forward to receive the balance of sale consideration of Rs.2 lakhs and executed a written receipt for the same on 22.01.2005 on behalf of the 1st Defendant are all false. The 2nd Defendant did not reply to any one of the letters of the Plaintiff. Even assuming that the Plaintiff has really paid a sum of Rs.3,25,000/- under the agreement of sale dated 06.09.2002, she would have definitely adjusted the entire sum of Rs.3,25,000/- paid by her husband towards the alleged agreement of sale and thus would have paid the 2nd Defendant only Rs.1,75,000/-. On the other hand, the Plaintiff states that she paid a sum of Rs.2 lakhs towards the balance of sale consideration and thus, has not accounted for Rs.25,000/-. So one can understand that it is only a cock and bull story built up about the alleged payments and the same has been averred for the purpose of the case. However, it is doubtful as to whether the Plaintiff would have really parted with the money at all viz. a sum of Rs.2 lakhs to the 2nd Defendant, when admittedly according to her, the 2nd Defendant has not been ready to register the document. Further, when the alleged construction agreement dated 06.9.2002 insists the prospective purchaser to pay the sale price of the flat only by different stages, whether it can be believed that even before the commencement of the construction of the flat including foundation, the Plaintiff's husband would have paid Rs.3.25 lakhs. Therefore, all these alleged payments only reveal the collusion between the Plaintiff and the 2nd Defendant. Further, it is not known as to how the Plaintiff got custodian of the plaint documents 1 and 2 viz. the joint venture agreement and the deed of power of attorney dated 15.07.2002, when the 2nd Defendant has not accounted for his alleged transactions with the Plaintiff to the 1st Defendant. d. The allegation in paragraph 7 that even after the receipt of the entire sale consideration, the Defendants 1 and 2 did not come forward to register the sale deed in favour of the Plaintiff for the reasons best known to them is also baseless. In paragraph 6, the Plaintiff has contended that in spite of repeated demands and requests, only the 2nd Defendant came forward to receive the balance of sale consideration. When according to the Plaintiff, she has paid the alleged payments only to the 2nd Defendant, which was not authorized by the 1st Defendant, it is not proper for the Plaintiff in expecting the 1st Defendant to register the document. When according to the Plaintiff, she has paid the alleged payments only to the 2nd Defendant, which was not authorized by the 1st Defendant, it is not proper for the Plaintiff in expecting the 1st Defendant to register the document. Further, if the 1st Defendant wanted to sell the vacant land, she would not have entered into the joint venture agreement at all, with the 2nd Defendant and simultaneously executed the deed of Power of Attorney. She would have straight away dealt with the property on her own, as she has sold it out now to the 3rd Defendant. The Plaintiff was a tenant under the 1st Defendant in the suit premises before demolition. At the time of vacating the premises, she knew very well that the 1st Defendant has engaged the 2nd Defendant only for promoting the site and thus, entered into a joint venture agreement with the 2nd Defendant and also appointed him as her agent to convey the flats to the prospective purchasers. The Plaintiff, as one of the tenants, knows the exact rental income, out of the suit premises collected by the 1st Defendant. Knowing fully well about the situation, she is estopped from entering into an agreement of sale with the 2nd Defendant. If she faced any problem with the 2nd Defendant as an old tenant and since she has acquaintance with the 1st Defendant, she could have straight away approached the 1st Defendant herself for settling any issue. e. The allegation that since the Defendants 1 and 2 failed to register the sale deed in her favour, she was constrained to issue a legal notice dated 24.2.2006, calling upon them to execute the sale deed in her favour is also unwarranted. The reply notice issued by the 1st Defendant is self explanatory. The reply issued by the 2nd Defendant, alleging that he could not register the sale deed as the 1st Defendant did not come forward to handover the original documents of title, only reveals the collusion between the Plaintiff and the 2nd Defendant. If the 1st Defendant wanted to sell the vacant land, she would have authorized the 2nd Defendant for that purpose alone, by executing a deed of Power of Attorney. She need not have entered into the joint venture agreement with the 2nd Defendant. If the 1st Defendant wanted to sell the vacant land, she would have authorized the 2nd Defendant for that purpose alone, by executing a deed of Power of Attorney. She need not have entered into the joint venture agreement with the 2nd Defendant. This only shows that there was no occasion for the Plaintiff to inspect the original documents of title before entering into an agreement of sale with the 2nd Defendant and parting with the alleged major portion of the sale consideration. It is the common ground that no man of ordinary prudence will blindly offer to purchase any property and agree to pay a major portion of the sale consideration, without scrutinizing the title deeds and possession assured. If she wanted to sell the vacant site, she need not have fixed the ratio, between them, at 60% and 40%. On the other hand, she would have authorized the 2nd Defendant to deal with the entire property by executing the power. The Plaintiff has taken a calculated risk in offering to purchase the property without proper verification of the records, ownership, possession and other attachment features and therefore, the present suit cannot lie as against the 3rd Defendant. The allegation in paragraph 8 that a few weeks back a local broker in the locality informed the Plaintiff that the property was sold to a third party and he further enquired her as to whether she had settled the matter with the Defendants 1 and 2; that the Plaintiff, thereafter, immediately applied for an encumbrance certificate and that she came to know about the purchase of the suit property by the 3rd Defendant on 22.03.2006 including 60%, for which the Plaintiff had entered into an agreement of sale, are denied by this Defendant as false and incorrect and the same have been averred for the purpose of the case. f. At the time of purchase, the 3rd Defendant measured the property and the Plaintiff, being a nearby resident, was present and is aware of this Defendant's purchase and subsequent to his purchase, the Revenue Authorities also measured the property and issued patta to this Defendant with a survey plan. The Plaintiff used the time gap available after this Defendant's purchase to prepare the plaint documents in order to support her alleged agreement of sale. The Plaintiff used the time gap available after this Defendant's purchase to prepare the plaint documents in order to support her alleged agreement of sale. The alleged agreement of sale recites some urgent necessity of the 1st Defendant, which is nothing but a fraudulent recital and it does not recite about the joint venture agreement. If that is the case, the 2nd Defendant ought to have handed over the money to the 1st Defendant and settled the account immediately and thus, put the 1st Defendant into knowledge about the agreement of sale. However, in the alleged agreement of sale, 3 months time was stipulated for execution of the sale deed. In the alleged agreement of sale, specific boundaries are not mentioned in the B-Schedule and the right to use the passage is also not known, as how the Plaintiff can use for 60% of her alleged undivided share. Had the Plaintiff really parted with the entire sale consideration to the 2nd Defendant to the tune of rupees five lakhs even before the registration, she need not have waited till this day for filing the suit for specific performance. According to her, the last payment was made by her on 22.01.2005. There is no corresponding default clause in the agreement of sale in favour of the principal, which only shows that the alleged agreement of sale is a manipulated one and has been prepared for the purpose of the case. g. The allegations in paragraph 8 that the 3rd Defendant is not a bona fide purchaser for value, in view of the alleged agreement of sale between the Plaintiff and the Defendants 1 and 2, which is also reflected in the encumbrance certificate; that knowing fully well about the agreement of sale which is in force, this Defendant in collusion with the 1st Defendant has proceeded to buy the property, are denied as false. The 3rd Defendant was satisfied, when the 1st Defendant handed over him the vacant possession of the land with the original documents of title along with the parent documents. This Defendant, bona fidely, believed the 1st Defendant and purchased the property for valid sale consideration. The Plaintiff is not entitled to 60% of the subject property, as the 1st Defendant never ratified it. This Defendant, bona fidely, believed the 1st Defendant and purchased the property for valid sale consideration. The Plaintiff is not entitled to 60% of the subject property, as the 1st Defendant never ratified it. This Defendant was convinced with the 1st Defendant's representation that the 2nd Defendant did not take possession of the property and act in terms of the joint venture agreement and that because of which she cancelled the power and when she handed over him all the documents of title along with possession. The allegations in paragraph 11 that the Plaintiff was always ready and willing and in fact has paid the entire sale consideration on 22.1.2005 and only because of the internal problems of the Defendants 1 and 2, the sale transaction was pending, are hereby denied by this Defendant as false and incorrect. There is no cause of action to file the above suit against this Defendant. In such circumstances, the suit is liable to be dismissed. 4. The Trial Court, after framing necessary issues on the above pleadings, on the side of the Plaintiff, examined PW.1 and marked Ex.A1 to A21 and on the side of the Defendant, examined DW.1. On consideration of the oral and documentary evidence, the Trial Court dismissed the suit. Hence, this Appeal Suit has been filed. 5. Heard both sides. 6. The learned Senior Counsel for the appellant has submitted that the court below has failed to consider the very vital aspect that as per Ex.A.2, the first respondent executed a registered Power of Attorney in favour of the second respondent to sell the property in favour of the prospective buyers and therefore, the finding the court below that Ex.A2 does not confer any power on the second respondent to sell the vacant land is contrary to the contents of the document. 7. Further, the learned Senior Counsel has submitted that the Court below has also failed to consider the Clause 8 of Ex.A2 which gives absolute power to the second respondent to sell the suit property either as a whole or as an undivided share or as divided share. 8. 7. Further, the learned Senior Counsel has submitted that the Court below has also failed to consider the Clause 8 of Ex.A2 which gives absolute power to the second respondent to sell the suit property either as a whole or as an undivided share or as divided share. 8. The learned Senior Counsel has vehemently contended that as the respondents 1 and 2 have no case as against the appellant herein, they have not chosen to appear and contest the suit and remained ex parte and when the respondents 1 and 2 , who are the authors of Exs.A1 and A2 had not chosen to contest the suit and remained ex parte, the Court below ought to have decreed the suit as prayed for. 9. The learned Senior Counsel has added that when the respondents 1 and 2 have not chosen to contest the suit, the other respondents have no locus to contest the suit. Further, the third respondent cannot claim to be a bona fide purchaser as the registered sale agreement Ex.A4 is reflected in the encumbrance certificate issued by the Sub Registrar Office, which was also marked as Ex.A10. 10. The learned Senior Counsel has pointed out that the court below erred in not considering the fact that the entire sale consideration was paid by the appellant to the second respondent, who is the power agent of the first respondent and therefore, the question of selling the suit property to the respondents 3 to 7 does not arise and even if it is sold, it would not bind the appellant. 11. Further, the learned Senior Counsel has argued that when the sale agreement Ex.A4 is in force, the so-called purchase of the suit property by the third respondent and the so-called sale of the same to the respondents 4 to 7 could not have bearing on the appellant and it would not bind her. 12. In support of his contentions, the learned Senior Counsel has relied on the following decisions:- (a) Goutham Surana and Sons Represented by its Karta Gouthamchand Surana, Madras. vs. K. Kesavakrishnan and Others, 1998 (3) L.W. 809 . (b) S.V. Doraisamy vs. T. Dayalan and Others, 2002 (2) CTC 462 . (c) Ramanatha Chettiar vs. R. Ranganayaki and Others, 2008 (2) CTC 265. 13. vs. K. Kesavakrishnan and Others, 1998 (3) L.W. 809 . (b) S.V. Doraisamy vs. T. Dayalan and Others, 2002 (2) CTC 462 . (c) Ramanatha Chettiar vs. R. Ranganayaki and Others, 2008 (2) CTC 265. 13. Per contra, the learned Senior Counsel appearing for the respondents 3 to 7 has submitted that as per Ex.A1 the second respondent does not have power to sell the vacant land to the appellant and therefore, the sale agreement would itself become void. 14. The main and only contention of the learned Senior Counsel is that as per Ex.A1 Joint Venture Agreement, the second respondent has been given only right to promote the property and he is entitled to the profit out of 60% of the constructed area after promoting the flats in the suit property and he has no right to transfer 60% of the vacant land to any third party. 15. Further, the learned Senior Counsel has argued that the alleged sale agreement, dated 15.10.2003 is non-est and it is against Ex.A1 executed between the first and second respondents. The learned Senior Counsel has also argued that the so-called payments as advance towards sale consideration are false and the receipts are fabricated for the purpose of grabbing the suit property in collusion with the second respondent. 16. In support of his contentions, the learned Senior Counsel has relied on the following decisions:- (a) Lourdu Mary (died) and Others vs. B. Arokiya Mary and Another, 2014 (4) L.W. 247. (b) P. Jaswant Kumar vs. M. Rajashekar, (2013) 7 MLJ 688 . (c) Thomson Press (India) Ltd. vs. Nanak Builders & Investors Pvt. Ltd. and Others, 2013 (2) L.W. 748. (d) Azhar Sultana vs. B. Rajamani and Others, 2009 (3) L.W. 911. 17. I have considered the aforesaid submissions and perused the materials available on record. 18. Now the question to be decided is, whether the sale agreement, dated 15.10.2003 executed by the second respondent, who is the power agent of the first respondent, in favour of the appellant is valid or the sale deed executed by the first respondent, dated 22.3.2006, in favour of the third respondent, when the power of attorney of the second respondent and the sale agreement executed by him in favour of the appellant are in force, is valid. 19. 19. The case of the appellant is that the first respondent has appointed the second respondent as her power agent on 15.7.2002. The second respondent as the power agent of the first respondent had entered into sale-cum-construction agreement, on 6.9.2002 with the appellant's husband Mr.A. Manoharan, in respect of a flat in the proposed first floor construction. The said Manoharan has totally paid a sum of Rs.3,25,000/- as advance and obtained receipts for the same from the second respondent. 20. As there was no progress in the construction, the second respondent has offered to transfer his 60% share in the property in favour of the appellant or her nominee. Thereafter, a registered sale agreement was entered into between the appellant and the second respondent on 15.10.2003. Though the entire sale consideration of Rs.500000/- was paid, the second respondent has not come forward to execute the sale deed. 21. It is not in dispute that the first respondent has executed the Joint Venture Agreement Ex.A1 and Power of Attorney Ex.A.2 in favour of the second respondent. The former is the unregistered one, whereas the latter is the registered one. 22. In Ex.A2 Power of Attorney, the second respondent was empowered to sell the property either partially or wholly to the purchasers. 23. At this juncture, it is pertinent to see the Clause 8 of Ex.A2, which reads as under:- “To find out the purchaser or purchasers and to sell the schedule mentioned property or any portions thereof either as whole or as undivided share or as divided share.” 24. It is also true that the first respondent has executed a joint venture agreement Ex.A1 with the second respondent, however, it is not a registered one as that of Ex.A2. 25. Based on the power of attorney, the second respondent has executed a sale-cum-construction agreement in favour of the appellant on receipt of Rs.3,00,000/-. Because of his inability in executing the agreement, he voluntarily offered to transfer his share of 60% in the property and to that effect a registered sale agreement was entered into between the plaintiff and the second respondent. 26. In the sale agreement Ex.A2, it is stated as under:- “Tamil” 27. Because of his inability in executing the agreement, he voluntarily offered to transfer his share of 60% in the property and to that effect a registered sale agreement was entered into between the plaintiff and the second respondent. 26. In the sale agreement Ex.A2, it is stated as under:- “Tamil” 27. Thereafter, since the second respondent has not come forward to execute the sale deed in favour of the appellant by receiving a sum of Rs.2,00,000/- despite several requests, the appellant had sent letters 5.5.2004 and 16.8.2004 expressing her readiness and willingness for the execution of the sale deed by paying the balance amount of Rs.2,00,000/-. The said letters were received by the second respondent. 28. Further, on 22.1.2005, the appellant paid the balance amount of Rs.200000/- and in turn the second respondent has executed a deed for receiving the balance amount of Rs.200000/- and expressed his willingness and readiness to execute the sale deed, when the appellant is calling for the same. 29. From the above, it is clear that the appellant in pursuant to the sale agreement, has completed her part of contract for the execution of the sale deed in respect of the suit property. 30. On 13.3.2006, the second respondent has also sent a reply notice stating that though he had received the entire amount of Rs.500000/- towards sale consideration, he is not in a position to execute the sale deed as the original deeds are with the first respondent. However, he is not going to cheat the appellant. Even now, he is ready to execute the sale deed and shortly, he would execute the sale deed. 31. From the above letter, it is clear that the second respondent is always ready and willing to execute the sale deed in favour of the appellant in respect of the suit property. 32. In the meanwhile, the first respondent has executed the sale deed in favour of the third respondent on 22.3.2006 and in turn, the third respondent has executed sale deeds in favour of the respondents 4 to 7. 33. The first and second respondents have not chosen to appear and contest the case before the trial court and therefore, they were set ex parte. 33. The first and second respondents have not chosen to appear and contest the case before the trial court and therefore, they were set ex parte. Unfortunately, as rightly argued by the learned Senior Counsel for the appellant, when the respondents 1 and 2, who are the authors of Ex.A1 and A2 have not chosen to contest the suit as there is no case on their side, the suit ought to have been decreed as prayed for. When the respondents 1 and 2 have not contested the suit, the subsequent purchasers should not canvass the case of the first and second respondents, however, at the most they could contend that they are the bona fide purchasers. 34. In A. Ramanathan Chettiar vs. R. Ranganayaki and Others, 2008 (2) CTC 265, the learned Single Judge of this Court has held that the perusal of the aforesaid extract and more so, the entire judgment, would highlight the fact that the subsequent purchaser of the suit property cannot be heard to contend the facts relating to the transaction which emerged between the parties to the agreement to sell and at the most the subsequent purchaser could contend that he is a bona fide purchaser for value without notice of any dispute between the parties to the agreement to sell. Accordingly, if viewed, ex facie and prima facie, it is clear that the third defendant who remained ex parte before the Trial Court and had not filed the written statement, is having no right to canvass the case of the first defendant and pick holes in the case of the plaintiff. 35. Even in the instant case on hand, the respondents 3 to 7 cannot take a stand that they are the bona fide purchasers of the suit property for the reason that Ex.A10, dated 18.2.2005 and Ex.A.16, dated 10.8.2006 Encumbrance certificates reflect the name of the appellant and reveals the fact that the appellant had entered into sale agreement with the second respondent, who is the power agent of the first respondent and therefore, the respondents 3 to 7 cannot take such a stand that they are the bona fide purchasers. 36. 36. In Azhar Sultana vs. B. Rajamani and Others, 2009 (3) L.W. 911, which is relied on by the learned Senior Counsel for the respondents, the Hon'ble Apex Court has held that it may also be correct to contend that only because the plaintiff, who is a Muslim lady, did not examine herself and got examined on her behalf, her husband, the same by itself would lead to a conclusion that she was not ready and willing to perform her part of contract. 37. If the same principle is applied to the case on hand, since the first and second respondents had not chosen to appear and did not get examine themselves, it would clearly lead to the conclusion that they absolutely do not have any case as against the plaintiff and that the suit ought to have been decreed as prayed for as rightly argued by the learned Senior Counsel for the appellant and therefore, the above cited decision would lend support only to the case of the appellant. 38. Eventually, the appellant has proved by oral and documentary evidence her readiness and willingness in respect of her part of contract and also fulfilled her part of contract, whereas, the second respondent, who is also ready and willing to perform his part of contract, is not in a position to perform his part of contract as the original deeds are with the first respondent. 39. In this regard, the learned Senior Counsel for the respondents has relied upon the decision in P. Jaswant Kumar vs. M. Rajashekar, (2013) 7 MLJ 688 , wherein, the learned Single of this Court has held as under:- "In view of the above said discussion, this Court is of the considered view that the plaintiff could not get the relief of specific performance which is equitable relief. Even though he paid the full sale price, he failed to establish that he was ready and willing to get the sale deed executed from first defendant. In such view of the matter, the Original Suit is liable to be dismissed. The Judgments of the Courts below are also liable to be set aside and they are accordingly set aside. The second appeal deserves to be allowed.” 40. In such view of the matter, the Original Suit is liable to be dismissed. The Judgments of the Courts below are also liable to be set aside and they are accordingly set aside. The second appeal deserves to be allowed.” 40. Here, it is not the case that the plaintiff, after paying the entire sale consideration, has failed to establish that she was ready and willing to get the sale deed executed from the second respondent. As already narrated above, though the plaintiff was urging the second respondent, the second respondent is evading from executing the sale deed on the ground that the original documents are with the first respondent. Hence, the above decision is not applicable to the case on hand. 41. The decision in Lourdhu Mary (died) and Others vs. B. Arokiya Mary and Another, 2014 (1) L.W. 247 , is also not applicable as there was a delay of 22 months in filing the suit for specific performance, whereas in the case on hand, neither the plaintiff had filed the suit with the delay of 22 months nor it was the case of the defendants. 42. Further, when the power of attorney is executed in favour of the second respondent by the first respondent and in pursuant to that, he executed a sale agreement in favour of the appellant, the first respondent has no power at all to execute the sale deed in respect of the third respondent. Unless and until, cancelling the power of attorney of the second respondent or issuing notice cancelling the power of attorney to the second respondent, the first respondent has no right to alienate the suit property. Further, unless and until giving quietus, one way or the other, to the sale agreement entered into by the second respondent with the appellant, though it is right or wrong, the principal has no right to proceed with the suit property for making any kind of transaction. Otherwise, it is nothing but a fraud on the bona fide purchasers or innocent purchasers by the principal as well as by the power agent. In view of the above, the sale deed executed by the first respondent with the third respondent is held invalid and the sale deeds executed by the third respondent with the other respondents are also held to be invalid. 43. In view of the above, the sale deed executed by the first respondent with the third respondent is held invalid and the sale deeds executed by the third respondent with the other respondents are also held to be invalid. 43. Further, a perusal of the judgment of the trial court reveals that there is no iota of reason for dismissing the suit and the judgment of the trial court suffers from infirmity and it is not sustainable in law and on facts. For the aforesaid reasons, this Appeal Suit is allowed setting aside the judgment and decree of the trial Court and the suit is decreed as prayed for. However, there will be no order as to costs. Consequently, the connected MP is closed.