Madras High Court
Vimala Ammal vs C. Suseela And Ors. on 2 May, 1990
Equivalent citations: (1990)2MLJ127, AIR 1991 MADRAS 209, (1990) 2 MADLJ127, (1991) CIVILCOURTC 632, (1991) 2 LJR 633
ORDER Abdul Hadi, J.
1. This Civil Misc. Appeal is against the dismissal order dated 12.1.1990 in E.A.No.4250 of 1986 in E.P.No.523 of 1986 in O.S.No.3244 of 1983 on the file of the X Assistant Judge, City Civil Court, Madras. In the said suit in O.S.No.3244 of 1983 the first respondent obtained ex parte decree on 23.3.1984 for specific performance of Ex.A.58 sale agreement dated 25.10. 1982 executed in favour of the first respondent for a sale consideration of Rs.48,125/-. The said Ex.A.58 was by the second respondent, the mother, and her children, the respondents 3 to 8.
2. Subsequent to the decree, through E.P. No. 2297 1984 she got the sale deed in her favour and in the abovesaid E.A. No. 523 of 1986 got possession on 7.11.1985 of the property sold, through the Court-bailiff. But the appellant has filed the above said E.A. No. 4250 of 1985 under Order 21 Rule 99 of the Code of Civil Procedure for re-delivery of the suit property to her on the ground that she had purchased the said property from the second respondent for Rs.45,000/- under the sale deed, Ex.A.12 dated 10.3.1983 itself; even prior to filing of the above said suit on 27.4.1983, that the above said decree could not be executed against her, that the above said decree was not valid and that he could not be dispossessed pursuant to the said decree. The appellant's further plea is that after purchasing the said property under Ex.A.12 he had put up superstructures on the site of the property and was carrying on iron business under the name and style of "S.V. Ramalinga Nadar and Company."
3. The court below has dismissed the said E.A.No.4250 of 1986 on the ground inter alia that the abovesaid sale agreement Ex.A.58 dated 25.10.1982 in favour of the first respondent-decree holder, was prior to Ex.A.12 sale deed dated 10.3.1983 executed in favour of the appellant and that it could not be held that possession was taken in the said E.P. proceedings from the appellant and consequently a petition under Order 21 Rule 99 of the Code of Civil Procedure would not lie.
4. But the Court below has failed to advert to one important aspect. The main issue is whether despite the abovesaid prior sale agreement Ex.A. 58 in favour of the first respondent, the appellant would get valid title to the property in question pursuant to the later sale deed Ex.A. 12 in his favour. A decision of a Division Bench of this Court in Veeramalai v. Thadikara (1958) I MLJ 437 : AIR 1958 Madras 383 held as follows:
If a person, as the owner of the property, has entered into an agreement to sell the property, he cannot thereafter convey the same property to any other person, as after the prior agreement of sale, he cannot be said to be a free owner of the property. If he subsequently alienates the property he can alienate it only subject to the rights created under the prior agreement of sale.
Section 19(b) of the Specific Relief Act, 1963 corresponding to Section 27(b) of the Specific Relief Act, 1877, also provides that specific performance of a contract may be enforced against any person claiming under any party to the contract by a title arising subsequent to the contract, except a transferee for sale who has paid his money in good faith and without notice of the original contract. After referring to this provision, the abovesaid decision of the Division Bench of this Court, points out that the plain language of the said-section (b) shows that the subsequent transferee can obtain the benefit of his transfer by purchase which, prima facie, he had no right to get, only after satisfying two conditions concurrently viz., (1) he must have paid the full value for which he purchased the property and (2) he must have paid it in good faith and Without notice of the prior contract. Further, it was also observed therein that the burden of proof was upon the subsequent purchaser to establish these conditions in order that his rights might prevail over the prior agreement of sale. So the Court below should have taken note of the abovesaid legal position and should have seen the facts of the present case in that light Evidently, on reading the order of the Court below, I find that the Court below has not done so.
5. So, now it is for me to see the facts of the case in the light of the said legal position. In other words I have to see whether the appellant is a bona fide transferee for value i.e. whether the appellant has satisfied the abovesaid two conditions mentioned in the abovesaid decision of the Division Bench of this Court viz., whether she has paid the full value for which she purchased the property and whether she has paid it in good faith and without notice of the prior contract. Respondents 2 to 8 remained expaite. Learned Counsel for the first respondent points out that necessary plea in this regard has not been set up at all by the appellant. I also find from the affidavit filed by the appellant in support of E.A.4250 of 1985 that the only plea is as follows:
As stated above I purchased the property for valuable consideration and the said property with the building and the business have now been damaged and lost and I have been put to irreparable loss, hardship and suffering. I respectfully submit that the first respondent has no manner of right, title or interest in the aforesaid property as the property has been sold to me by the second respondent under the registered sale deed aforesaid and therefore second respondent ceased to have any interest in the property when the first respondent sought to dispossess me.
This plea thus only states that she purchased the property for valuable consideration. She neither plead that she paid the full value for which she purchased the property nor that she paid it in good faith and without notice of the prior contract. So without the necessary plea the appellant cannot succeed in this regard. Even assuming there is some evidence regarding the same she cannot succeed since the settled law is that no amount of evidence can be looked into on a plea which was never put forward.
6. Learned Counsel for the first respondent also points out that actually there is no evidence too in this regard. If the appellant was die bona fide purchaser for value without notice of the prior sale agreement she would have made necessary verifications, particularly she would have verified the original title deeds. It is admitted by P.W.I, the husband of the appellant that the original title deeds were not given to the appellant. The appellant has also not examined her vendor, though P.W.I admitted that there was no animosity with the said vendor and that the appellant could examine the vendor. Further, no doubt, P.W.I deposed that it was not correct to say that they got the sale deed by force even though they were fold that the original title deeds had been given away to the first respondent pursuant to the earlier sale agreement in favour of the first respondent. Yet, it is significant that in the next sentence of the deposition he deposed as follows:
That is, whether the sale deed was got by force despite being told that the original title deeds were with the first respondent pursuant to the earlier agreement in favour of the first respondent; could be ascertained "from them", that is, the above said vendor. Vendor's son and the attestor to the document and those persons could have been examined by the appellant. But the appellant has not examined any one of them. In this connection learned Counsel for the respondent relied on a decision in Hiralal v. Baduklal AIR I953SC 225 to emphasise that the best evidence being that of the vendor she or her son must have been examined by the appellant and that the appellant having failed to do so, no conclusion could be reached in this regard in her favour. On the other hand, the counsel for first respondent contend that the first respondent could not have examined the said vendor or her son because of the animosity pursuant to the legal proceeding initiated. Learned Counsel also pointed out that P.W.I admitted specifically that he did not investigate whether there was any earlier sale agreement. He also pointed out that P.W.I admitted that after his dispossession through the court bailiff, he did not meet the vendor Utzarathi the second respondent or her son Selvam the fifth respondent. Normally if he is illegally dispossessed pursuant to the execution of a decree obtained by another party, the appellant or her husband P.W.I would have immediately gone to the vendor and complained the matter. All these show that the appellant was not a bona fide purchaser. Even regarding payment of full value for which the appellant purchased the property under Ex.A. 12, learned Counsel for the first respondent pointed out that even Ex.A. 12 does not give the dates on which the several alleged payments were made towards the total sale consideration of Rs.45,000/- The said sum is stated to have been paid in four instalments including the last instalment paid on the date of execution of the said sale deed. But, for the earlier 3 instalments of Rs.10,000/- Rs.15,000/, and Rs.10,000/- the sale deed does not give the dates of payment. Further though P.W.I admitted that receipts were given for the abovesaid earlier three instalments and that the said receipts were with him at the time of execution of Ex.A.12, he could not explain why dates of payments were not mentioned in the sale deed. Further those receipts were not filed into Court. But P.W.I only deposed that those receipts had been taken back by the vendor. Normally, this cannot be believed. Further as stated above not only the original title deed was not at, all seen by the appellant before the execution of the sale deed, but even the registration copy was obtained only on 15.3.1983 while the sale deed is executed on 10.3.1983. The lower Court also observes that the original title deeds were not filed by the appellant but only by the first respondent. Taking all these into consideration, the appellant cannot be taken to have satisfied the above said two conditions laid down in Veeramalai v. Thadikara Vanniar and others AIR 1958 Mad 383.
7. On the other hand, learned Counsel for the appellant distinguished the said decision rendered in AIR 1958 Madras 383, on the footing that, in the said case, the subsequent purchaser was a party in the specific performance suit. In the present case the appellant-subsequent purchaser was not a party m the abovesaid specific performance suit in O.S. 3244 of 1983. learned Counsel also relied on the decision in Chinna Vannan v. Alamelu which held that a subsequent purchaser with the knowledge of prior agreement to sell to another, was a necessary patty in the suit by the latter for specific performance pd that the decree should direct both the owner and the subsequent purchaser to execute conveyance in favour of the agreement holder. The following observations in the said decision are significant:
But if the purchase by the third party was with the knowledge of the agreement to sell, he will hold the property subject to the obligation under Section 91 of the Indian Trust Act, 1892. This Section provides that where a person acquires property with notice that another person has entered into an existing contract affecting that property of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract. Thus the obligation of holding as a trustee, is only to the extent necessary to give effect to the contract. It does not affect the passing of the title. In other words even where Section 91 of the Act applicable the transaction of sale is not made void, but the subsequent purchaser is under an obligation to convey the property to the agreement holder and as and when he establishes his rights.... The agreement holder can acquire title to the property only if a proper conveyance is executed by the subsequent purchaser as well.... These principles clearly show that the subsequent purchaser is a necessary party in a suit for specific performance and the decree should direct both the owner and the subsequent purchaser to execute the Conveyance in favour of the agreement holder (underlines are mine) This court in the above said Chinnavannan v. Alamelu relied on Durga Prasad v. Deepchand and Appa Rao v. Veerama In Rarnesh Chandra v. Chunilal and Dwarka Prasad v. Harihant Prasad AIR 1973 Supreme Court 535 also, it was held that in the above situation, the title resided in THE SUBSEQUENT PURCHASER and he had also to necessarily join in the conveyance. So where the appellant/subsequent purchaser is a necessary party, unless he is impleaded and a decree is got as indicated earlier in the abovesaid decision, the title remained with the subsequent purchaser. Therefore, E.A. No. 4250 of 1985 should have been allowed as prayed for.
8. No doubt the learned Counsel for the first respondent contends that the execution court cannot go beyond the decree. But this contention has no merit. First of all, the appellant was not a party to the suit at all. That apart, the decree is a nullity since the necessary party was not impleaded. Necessary parties are parties who "ought to have been joined" under Order 1, Rule 10(2) C.P.C. that is, parties necessary to the constitution of the suit without whom no decree at all can be passed. Vide - Kishan Prasad and others v. V. Harnarain Singh and others (1911) 33 Allahabad, 272, Privy Council. It is settled law that a decree which is a nullity can be challenged even at the execution stage.
9. One other argument of the first respondent is that the said E.A.4250 of 1986 is not maintainable under Order 21, Rule 99 C.P.C. which runs as follows:
Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
The first respondent's counsel's contention is that since the appellant was not "dispossessed" within the meaning of that expression in Order 21 Rule 99 C.P.C. in view of the fact that possession was got. only from the judgment-debtor and not from the appellant. But this contention is not tenable since R.W. 1 the husband of the first respondent decree-holder himself admits that when possession was given, appellant and her husband were there but did not protest. Further some small discrepancies in the description of property as found in Ex.A. 10 patta obtained by the appellant and Ex.A. 12 sale deed in favour of the appellant was also pointed out. But this cannot be put very much against the appellant. P.W. 2 the attestor also deposes that pursuant to Ex.A. 12, the property was measured and possession thereof was given to the appellant by the vendor's son Selvarn. Further, the court below has held that the appellant was not a 'person other than the judgment-debtor' since he has purchased the property from the judgment-debtor. But it has also been held in Purna Chandra Kundu and Ors. v. Manobhai Devi AIR 1927 Calcutta page 156 and Kurnud nath Das v. Government Pleader AIR 1938 Calcutta 349 that a purchaser from judgment-debtor is entitled to apply under Order 21 Rule 99 C.P.C. Further, Order 21 Rule 102 C.P.C. also will not apply since the sale under Ex.A. 12 dated 10.3.1983 in favour of appellant was prior to the institution of the suit for specific performance on 27.4.1983. So, Order 21 Rule 99 C.P.C. is applicable.
10. One other argument of the appellant is that the sale agreement and the subsequent decree was as a result of collusion between the first respondent and the other respondents (judgment-debtors). But there is no plea by the appellant to that effect. The Supreme Court has even observed in Varnasaya Sanskrit Vishna and Anr. v. Dr. Rajkishore Tripatji and Anr. Vidyalaya and AIR 1977 SC 615 that collusion implies fraud and so particulars of the plea must be given as per Order 5, Rule 4 C.P.C. But there is no plea even in the present case.
11. Therefore, the order of the court below is set aside and the Civil Miscellaneous Appeal is allowed. No costs.
Abdul Hadi, J.
Re-delivery to be given within two months. Till re-delivery is given, the first respondent is restrained from putting up any construction over the suit property.