Madras High Court
M. Manoharadhas vs C. Arumughaperumal Pillai And Anr. on 29 November, 2002
Equivalent citations: 2003(1)CTC539
ORDER P. Shanmugam, J.
1. Second defendant is the appellant. The first respondent/plaintiff filed the suit in O.S.No.67 of 1986 on the file of the Sub Court, Nagercoil, for a direction to the first defendant to execute a sale deed in favour of the plaintiff after directing the plaintiff to pay the balance sale consideration of Rs. 9,400 and directing the defendant to hand over possession of plaint property to the plaintiff. The trial court granted a decree directing the first defendant to execute a sale deed. On appeal filed by the appellant/first defendant, the District Judge, Kanyakumari District at Nagercoil granted a decree against defendants 1 and 2 to execute a sale deed and hand over possession of the suit property, against which, this second appeal is preferred.
2. The necessary facts for the purpose of this Second Appeal are as follows :-
The first defendant is the owner of the suit property. On 14.5.1983, the first defendant entered into an agreement with the plaintiff for the sale of the suit property for a consideration of Rs. 29,400, agreeing to execute a sale deed after getting possession in O.S.No.77 of 1978 or within four months whichever is later. He received a sum of Rs. 3,500 on that date. The time was further extended on 1.9.1983, 1.11.1983, 1.3.1984 and 12.5.1984 in the meantime, a further sums of Rs. 3,000, Rs. 3,500 and Rs. 10,000 were received by the first defendant under the said agreement. In total, the first defendant has received a sum of Rs. 20,000 from the plaintiff. The first defendant got possession of the suit property as per the decree in O.S.No.77 of 1978 on 28.4.1984. In the meanwhile, one Jeevarathinam filed a suit in O.S.No.831 of 1984 before the court of the Principal District Munsif, Nagercoil alleging a lease and claiming to be in enjoyment of the property as lessee and seeking an injunction against the plaintiff and the first defendant from entering into the suit property. The plaintiff had been making repeated requests to the first defendant to execute the sale deed after receiving the balance consideration and he was ready and willing to perform his part of the contract. The plaintiff would further state that he understood that the first defendant had executed a sale deed in respect of the plaint property in favour of the second defendant collusively and fraudulently and hence, he filed the suit for a direction to the first defendant to execute the sale deed and hand over possession of the plaint schedule property. The trial court granted a decree for a direction and the appellate court modified the decree directing both the defendants to execute the sale deed and to hand over possession of the suit property. This second appeal is now filed by the second defendant, namely, the subsequent purchaser.
3. Mr. T.R. Rajagopalan, Senior Counsel appearing on behalf of the appellant/second defendant submits that the suit is a collusive suit between the plaintiff and the appellant's vendor and no relief had been sought against the appellant/second defendant from the lower appellate court to modify the decree granted by the Trial Court and therefore the decree ought not been passed in the facts and circumstances of the case. In any event, according to him, the appellant/second defendant is the bona fide purchaser for the value without notice of the agreement. According to him, the court cannot, without a relief for setting aside the sale, hold the sale to the appellant invalid. According to him, the learned District Judge erred in granting a decree for specific performance as against the second defendant without a prayer in the plaint. The sale deed cannot be invalid simply because a security in reference to the property situate in Kerala was shown in the sale deed. In any event no reliance can be placed on Ex.A.6, Tahsildhar's Certificate.
4. Mr. R. Alagar, Senior Counsel, appearing on behalf of the first respondent/plaintiff submits that the sale under Ex.B.1 Sale Deed is a void sale and is a fraud on the law of registration. The appellant/second defendant has not discharged the burden of proving that he is a bona fide purchaser without notice of the earlier agreement. According to the learned Senior Counsel, there are various circumstances to show that the appellant/second defendant had notice of the prior agreement. He ultimately submits that the appellate court has ample power of jurisdiction to modify the decree in the interest of justice and therefore, seeks for confirmation of the judgment and decree of the lower Appellate Court.
5. I have heard the counsel for both the appellant and the first respondent and considered the matter carefully. The admitted facts are that the first defendant had entered into an agreement for sale, Ex.A.1 dated 14.5.1983, that of the total sale consideration, he has received Rs. 20,000 on various dates, that though the first defendant had got possession of the property on 28.4.1984, he, instead of executing the sale in favour of the plaintiff, had sold the property under Ex.B-1 sale deed dated 26.6.1985 in the Sub Registrar's office, Parasalai in Kerala.
6. The main questions that arise for consideration are (i) whether the first defendant is bound to give effect to Ex.A-1 sale agreement? (ii) whether the subsequent sale executed by the first defendant in favour of the second defendant by Ex.B-1 sale deed is valid? (iii) whether the purchase by the second defendant is bona fide without notice of the Ex.A-1 agreement? and whether the subsequent sale executed by the first defendant in favour of the second defendant is valid?
7. The first defendant, the vendor of the second defendant has remained ex parte and therefore, it can be taken that the first defendant after having entering into an agreement for sale on 14.5.1983, having received a substantial amount of Rs. 20,000 to the total sale consideration of Rs. 29,400 is bound to execute the sale. In the meanwhile, the second defendant had purchased the property by sale deed dated 26.6.1985. The case of the appellant/second defendant is that he was not aware of the existence of the sale agreement and therefore, the sale in his favour cannot be declared to be invalid.
8. The suit property is situate in Kanyakumari District and in the jurisdiction Sub-Registrar of Nagercoil. However, the first defendant had executed the sale deed Ex.B-1 dated 26.6.1985 at Parasalai of Kerala State. To enable such a sale, the property at S.No.80/1, Parasalai Village in Neyyartin Karai Taluk, is shown as a security. The first respondent/plaintiff has produced Ex.A.6 Certificate from the Tahsildar stating that Sri Rajavel (D1) has no possession or ownership of the property in S.No.80/1, which was shown as security for the Ex.B-1 sale. If there is no such property in existence, it follows that Ex.B-1 sale deed cannot be a valid sale.
9. In Venkatarama Rao v. Appa Rao, A.I.R. 1936 PC 91, where a case dealing with a property sought to be transferred by a deed is situated in one district but a small strip of land situated in another district is included in the deed, without any intention on the part of the parties that it should pass under the deed but solely with a view to obtain registration in the latter district, it was held that it amounts to fraud on the law of registration.
10. In Mohd. Kassim v. Rajaram, 1988 (I) M.L.J. 447, a Division Bench of this court has held that when a sale deed having not been registered before the Registrar having jurisdiction and on the other hand having been registered in Kerala including a fictitious property is void.
11. In P.C. Purushothama v. S. Perumal, , it was held that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence and that report made by public servant in discharge of his official duty is a relevant fact.
12. Ex. A-6 Certificate issued by the Tahsildar holding that the first defendant has no possession or ownership of the land in S. No. 80/1, is, therefore, rightly accepted by the Courts below and consequently, it follows that the registration of the sale is illegal and void.
13. In Bhup Narain v. Gokul Chand, AIR 1934 PC 68, it was held that under Section 27 of the Specific Relief Act, it is for the transferee to establish the circumstances which will allow him to retain the benefit of a transfer which prima facie had no right to get.
14. In S.M Mundage v. New Mofussil Co. Ltd., A.I.R. 1946 P.C 97, that the burden of prov.ing good faith and lack of notice lay upon the defendants. It was held that where after entering into a contract for the sale of certain property with the plaintiff the vendor subsequently contracts to sell the same property to the defendant, then in a suit by the plaintiff for the specific performance of the contract in his favour, the burden of proving good faith and lack of notice of the contract lies upon the defendant.
15. In Sanku Balakrishnan v. Kunjikrishnan and Ors., AIR 1982 NOC 18 (Ker), a Division Bench of the Kerala High Court has taken the view that in a suit for specific performance of the agreement of sale claiming relief against subsequent purchaser, the burden of showing that the purchase was bona fide and without notice of existing agreement for sale with regard to the property is on subsequent purchaser and that in a case where there are other circumstances which reflect upon the bona fides of subsequent purchaser, mere denial may not be sufficient and the court would be obliged to assess overall weight of evidence in the case.
16. In Joginder Singh v. Nidhan Singh, , it was held that the onus can only be discharged by the evidence led in by the transferee and that mere denial to the effect that he had no notice of the previous contract for sale will not discharge the onus that rests on him.
17. In this case, applying the above principles, we find that there is absolutely no evidence, except the evidence of second respondent alone. Apart from the fact that the sale deed was registered outside the State by invoking a property which was not in existence, there are other circumstances to show that the second defendant cannot be a bona fide purchaser.
18. In the suit filed by Jeevarathinam in O.S. No. 10 of 1984 claiming to be the lessee from one Krishnammal in reference to this property, the first defendant had filed a counter affidavit in I.A.No.144 of 1984, where in he had stated that he had executed an agreement of sale in favour of the plaintiff herein. He further stated that after taking delivery of the property, he had authorized the plaintiff to supervise the lands since he is a local man and the first defendant is living away. Therefore, the appellant, who claims to be the resident of the same village must be aware of not only the existence of the agreement for sale, but atleast the litigation going on in reference to the property in the village. The case of the first respondent/plaintiff is that he was in fact looking after the property as contended by the vendor himself in the suit in O.S.No.831 of 1984. The appellant in his written statement has not pleaded the particulars of the sale deed clearly. Apart from the fact that the appellant/second defendant has admitted in his statement that the first defendant rarely visits the village, he says that the first defendant had engineered the matter to defraud the second defendant, who had in good faith purchased the property. Excepting the statement that in good faith, he has purchased the property, no particulars or documents were given, until he was examined as D.W.I on 30.11.1988. If really, the appellant was clear about the purchase, he ought to have disclosed the full particulars of the sale deed and filed it along with the document. Instead, he took time when he has been examined in chief and filed the same only on 30.11.1988 long after filing of the suit. The appellant is working as a Special Revenue Inspector and therefore, he being a Government Servant in the Revenue Department, should have known about the prior transactions in reference to the suit property. In his evidence as D.W.I, the appellant has admitted that while purchasing the property, he has not measured the property, but there was standing crop and in the light of the evidence, it is clear that the first defendant was not living in the village and was living far away at Madurai and the appellant should have enquired as to the person who had raised the crop and in which case he could have come to know that the agreement holder, namely, the plaintiff was entrusted to supervise the cultivation and had, an agreement in his favour. He further says in his cross-examination that he has not enquired into the solvency particulars of the property at Kerala to find out whether the first defendant is actually having the property, though the first defendant had shown some receipts, he did not verify it. The appellant being a Revenue Inspector in the Revenue Department could not have accepted the property shown as the property of the vendor without a further verification. Therefore, it cannot be stated that the appellant is a bona fide purchaser without notice, and he has not discharged the onus of proving that he has no notice.
19. The appellate Court has granted a decree directing defendants 1 and 2 to execute the sale deed and hand over the possession. Order 41, Rule 33, C.P.C. enables the appellate court to pass any decree, or make further or other decree or order, which ought to have been passed as the case may require. The learned counsel appearing for the appellant contends that the relief should not have been granted which was not asked for. In this context, reference can be made to the following decisions.
20. In Babu Lal v. Hazari Lal Kishori Lal, , the Supreme Court held that in a suit for specific performance, relief of possession can be granted at the appeal stage. It was held that it may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale.
21. In Durga Prasade v. Deep Chand, , it was held that the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and in case of subsequent purchaser being found to be involved is to direct the subsequent purchaser to join in the conveyance so as to pass on the title which resides in him to the plaintiff. Following the said judgment, in Raminder Singh v. Sham Lal, , it was held that court can grant such relief to the plaintiff, if he is entitled on facts proved though such a prayer for relief is not contained in the plaint. It was held that in a suit for specific performance of the contract for sale, where property has been subsequently sold to another, the property form of decree to be granted to the plaintiff is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff and that he does not join in any special covenants made between the plaintiff and his vendor, all he does is to pass on his title to the plaintiff.
22. In Parmeshwar Mandal v. Mahendra Nath, , a learned judge of the Patna High Court has held that Order 41 Rule 33 C.P.C. is very wide and in a proper case it gives the appellate court ample discretion to pass any decree, or make any order to prevent the ends of justice from being defeated. In this case also, similar direction to join the subsequent purchaser in a suit for specific performance was granted.
23. In the light of the principles laid down on the clear provisions of law, I do not find any error or illegality in modifying the decree to prevent the ends of justice from being defeated. For all the above reasons, I hold that no questions of law arise in the Second Appeal. This second appeal is dismissed. No costs.