Madras High Court
Sundaram Ammal vs Gowriammal And Anr. on 7 August, 2002
ORDER K. Govindarajan, J.
1. The first defendant, having aggrieved by the reversing judgment of the lower appellate court, has filed the above Second Appeals.
2. The respondent/plaintiff filed a suit in O.S. No. 61 of 1986 on the file of Sub Court, Tenkasi for declaration and recovery of possession from the appellant/first defendant, on the basis that she purchased the property under Ex.A.2 dated 14.3.1986 from the second defendant. The appellant who is the first defendant in O.S. No. 61 of 1986, contested the suit contending inter alia that she was in possession of the property as a tenant and subsequently mortgage deeds were created under Exs.A.10 and A.11 over the suit property in her favour and the parties agreed to adjust the interest in payment of rent. Subsequently, the second defendant agreed to sell the property to the first defendant/appellant and entered into an agreement under Ex.B.3 dated 20.11.1985. According to the appellant/first defendant, the possession from 20.11.1985 was on the basis of the agreement and not as a tenant. On that basis, she has come forward with a plea that she is entitled to protection under Section 53A of the Transfer of Property Act. The appellant also came forward with a plea that the agreement under Ex.A.1 and the sale agreement under Ex.A.2 in favour of the plaintiff were only to defraud the first defendant/appellant.
3. The trial court found that the plaintiff is not a bona fide purchaser for value without notice of the agreement under Ex.B.3 in favour if the appellant and the first defendant is entitled to protection under Section 53A of the Transfer of Property Act. On the basis of the said finding, dismissed the suit filed by the plaintiff,
4. The plaintiff also filed another suit in O.S. No. 90 of 1988 for redemption of mortgage on the basis that the sale under Ex.A.2 was subject to the mortgage deeds under Exs.A. 10 and A. 11. The appellant contested the said suit on the basis that the amount payable under the mortgage had been adjusted toward sale consideration as mentioned in Ex.B.3 dated 20.11.1985 and so the said suit is not sustainable. Accepting that, the trial court also dismissed the said suit. Hence, the plaintiff filed appeals in A.S. No. 135 and 136 of 1990.
5. The lower appellate Court found that Ex.B.3 is a valid agreement. It also found that the plaintiff is a bona fide purchaser for value under Ex.A.2. The lower appellate court rejected the case of the appellant stating that she cannot claim any protection under Section 53A of the Transfer of Property Act. On the basis of the said findings, the lower appellate court has allowed the appeals and consequently, decreed the suit. Hence, the first defendant has filed the above second appeals.
6. The substantial questions of law which were framed for consideration in these second appeals are as follows:
"1. Is the second defendant entitled to the benefits of Section 53-A of the Transfer of Property Act?
2. Is not the learned I Addl. District Judge wrong in holding that the plaintiff is a bona fide purchaser of the suit property when he had knowledged of the prior agreement of sale of the suit property between the second defendant and the first defendant?
3. When the case of the plaintiff is that the second defendant is a tenant in the suit property, is the learned I Addl. District Judge right in decreeing the suit for recovery of possession of the suit property from the second defendant?
4. Is the learned I Addl. District Judge right in holding that the plaintiff is entitled to redeem the suit property when there is no mortgage in substance?
7. There is no dispute that the plaintiff purchased the suit property under Ex.A.2 dated 14.3.1986. It is also not in dispute that there was an agreement in favour of the appellant under Ex.B.3 dated 20.11.1985. In view of the fact that both court's concurrently found that the agreement marked as Ex.B.3 in favour of the appellant/first defendant is a valid agreement, we have to decide the case on the basis of the said finding.
8. The main dispute in this case is whether the plaintiff/first respondent is a bona fide purchaser for value of the suit property without notice of the agreement marked as Ex B.3 in favour of the appellant?
9. According to the plaintiff, she had no knowledge about the agreement marked as Ex.B.3 dated 20.11.1985 and she deposed that she was represented by the owner that the defendant is in possession of the property only as a tenant. On that basis, she entered into an agreement.
10. Learned Counsel appearing for the appellant relied on the judgment in R.K. Mohammed Ubaidullah and Ors. v. Hajee C. Abdul Wahab (D) by L.Rs and Ors., in support of his submission that in the absence of evidence that the plaintiff has not enquired about the nature of possession of the property and the title on the basis of which the appellant is in possession on the date of his purchase, the plaintiff is not entitled for any relief as he cannot be construed as a bona fide purchaser for value. In the present case, both the trial court and the first appellate court have not decided the case on the basis that the plaintiff had not enquired about the nature of possession and about the entitlement of the first defendant/appellant. The trial court had proceeded only on the basis that the plaintiff had not enquired about the mortgage. As stated already, P.W.1 had deposed that the appellant/first defendant has been in possession only as a tenant. Even under Ex.A.9, the reply notice sent by the plaintiff to the first defendant/appellant, it has been specifically stated that the vendor informed the plaintiff that the appellant, who was in possession of the suit property on the said date has been in possession only as a tenant and Vendor's children also informed the plaintiff only to that extent. The above said reply and the evidence of the plaintiff establishes hat she was informed about the nature of possession of the first defendant and she was informed that such a possession referable only to the tenancy. It is not in dispute that the first defendant/appellant entered into possession of the suit property only as a tenant and he continued to be a tenant in spite of the mortgage Exs. A. 10 and A. 11. It is the case of the appellant that the character of possession has been changed only after Ex.B.3. To disbelieve the above said evidence of the plaintiff no other evidence is available on record. There is no cross examination by the first defendant to P.W.1 to the effect that the plaintiff did not make any enquiry about the nature of possession of the first defendant. But, on the other hand, in the cross examination, a suggestion was made that the plaintiff knew about the character of possession of the appellant was on the basis of the agreement, which was denied by the plaintiff. In the absence of any contra evidence, the trial court was wrong in holding that the plaintiff was not a bona fide purchaser without notice of the agreement under Ex.B.3. Even in the notice Ex.A.8, it was not suited that the plaintiff purchased he property after knowing the agreement Ex.B.3.
11. The trial court had given much importance to the fact that the plaintiff did not verify as to whether any mortgage was created. As P.W.1, the plaintiff had deposed that it was the second defendant, as the owner of the property has not revealed anything about the mortgage. Even otherwise, she has filed the suit to redeem the suit mortgage. From the above discussion, it is clear that the plaintiff has made an enquiry about the properties including the character of possession, and so, the submission of the learned counsel appearing for the appellant that the plaintiff did not enquire about the character of possession of the appellant, cannot be accepted, in the absence of any evidence on the side of the defendant that the plaintiff purchased the suit property knowing the agreement entered into with the second respondent under Ex.B.3, the appellate court is correct in holding that the plaintiff is a bona fide purchaser of the property for value.
12. In view of the said conclusion, the appellant cannot claim any protection under Section 53A of the Transfer of Property Act. Section 53A of the said Act specifically provides that" Section shall not affect the right of transferee for consideration who has no notice of the contract or of the part performance thereof. But, even with respect to the character of possession of the first defendant, it was not established that she has been in possession as the owner after the execution of Ex.B.3. Ex.B.3 does not speak about the change in character with respect to possession after the execution of Ex.B.3. Admittedly, the appellant was in possession as a tenant before the execution of Ex.B.3. To say that the character was changed and the possession from 20.11.1985 was only pursuant to the agreement, there is independent evidence except the oral evidence of P.W.1. Though under Ex.A.8, it was stated that the the firs defendant/appellant has been in possession after Ex.B.3 as owner of the property pursuant to the agreement, that has been denied in Ex.A.9 the reply given by the plaintiff. In Ex.A.9, it was stated that the appellant's possession is only as a tenant. Even as P.W.1, the plaintiff had deposed that the appellants' possession was only as a tenant and not on the basis of the agreement. Among the evidence of P.W.1 and D.W.1, the lower appellate Court has accepted the evidence of P.W.1 and so, I am not inclined to interfere with the said finding of the lower appellate court. More over, the said fact that the character of possession of the appellant has been changed pursuant to Ex.B.3, has to be established by the first defendant/appellant, as she has claimed the right on that basis to protect her possession as per Section 53A of the Transfer of Property Act. To claim such protection, the defendant has not discharged her burden by adducing any independent evidence. The lower Appellate Court is also correct in holding that since the appellant is not entitled for protection under Section 53A of the Transfer of Property Act and the plaintiff is entitled to redeem the mortgage, I am not included to interfere with the the common judgment of the lower appellate Court.
13. In the result, both the Second Appeals are dismissed. No Costs.