Madras High Court
K.Sugumar vs P.K.Sundaram on 29 April, 2015
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 29.04.2015 CORAM : THE HON'BLE MS. JUSTICE K.B.K.VASUKI Second Appeal No.1347 of 2010 and MP.Nos.1 and 2 of 2013 K.Sugumar .. Appellant Vs. 1.P.K.Sundaram 2.P.K.Arumugham 3.T.Varadharajan .. Respondents Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 30.08.2010 made in A.S.No.18 of 2009 on the file of the Principal District Judge, Chengalpattu confirming the Judgment and Decree dated 01.06.2009 made in O.S.No.86 of 2006 on the file of the Subordinate Judge, Madurantakkam. For Appellants : Dr.C.Ravichandran for M/s.S.D.Venkateswaran For Respondents : Mr.T.P.Sahankaran for R1. Batta Due for R2 and R3 J U D G M E N T
The plaintiff is the appellant herein.
2.The plaintiff filed the suit against the respondents for the relief of specific performance of contract dated 12.04.2003.
3.The brief averments made in the plaint are as follows :-
The first respondent entered into a sale agreement dated 12.04.2003 with the appellant for the sale of suit property at the rate of Rs.500/- per cent and received a sum of Rs.2,00,000/- as advance. In pursuant to the sale agreement, the possession of the property was also handed over to the appellant. The first respondent agreed to execute a sale deed within six months from the date of handing over the original title deed to the appellant. The appellant having been in possession of the property spent a sum of Rs.1,50,000/- and raised casuarina trees. The first respondent while entering into the sale agreement stated that though he is the absolute owner of the property he will also get the signatures of the respondents 2 and 3, who are his brother and the son of his predeceased brother respectively. The appellant paid further sum of Rs.1,00,000/- on 16.05.2003 to the first respondent. Whenever the appellant was approaching the first respondent on many occasion requesting him to complete the sale transaction, the first respondent was giving evading replies and the first respondent suddenly issued a notice dated 10.10.2003, which was actually forwarded on 07.11.2003, alleging that the appellant should not enter into the suit lands. The appellant sent a suitable reply stating that he was already in possession, ready and willing to perform his part of contract and the time is not the essence of the contract, for which there was no reply. Since the first respondent was not coming forward to execute the sale deed, the suit came to be filed for the above stated relief.
4.The respondents 2 and 3 remained exparte and the first respondent alone filed a written statement inter alia stating as follows: The execution of the sale agreement, handing over possession and receiving advance amount were all denied. The first respondent would state that the property is the joint family property of his father Kandasamy Mudaliar and his brothers Thanikachalam and Arumugam and also a sister Padma, who constitute a Hindu undivided joint family. The first respondent would further state that the members of the joint family keep the suit properties in joint possession and enjoyment. The first respondent also states that he was in need of money for his transport business and he approached the father of the appellant by name Krishnadevaraja Reddiar, who promised to advance money and insisted the respondent to execute a mortgage deed in respect of the suit property as a collateral security. The first respondent signed in stamp papers, which were given as collateral security for the money advance and he never entered into any sale agreement. Therefore the alleged sale agreement was not executed by the first respondent and the first respondent signed in stamp papers with an intention to create a collateral security to the money advanced i.e sum of Rs.2,00,000/-. Though, it is true that further sum of Rs.1,00,000/- was received from the father of the appellant, it was not endorsed on any sale agreement, but in blank paper. The alleged sale agreement dated 12.04.2003 is fabricated and concocted document and the first respondent was and is always ready to repay the debt of Rs.3,00,000/-. However, suppressing the above facts, the appellant has filed the suit for specific performance, which is not maintainable. This respondent has no absolute right over the property.
5. With the above averments, the Subordinate Judge, Madurantakkam framed triable issues and after analyzing the oral and documentary evidence found that when the property belongs to several persons and an agreement executed by one of the person who holds a fraction of his share, cannot be enforced and therefore, declined to grant the specific performance of the contract. However, the trial Court has directed the first respondent to return the sum of Rs.3,00,000/- with 6% interest to the appellant. Aggrieved by the said decree and judgment, the appellant preferred an appeal in AS.No.18 of 2009 before the Principal District Judge, Chengalpattu. In the appeal also, the second and third respondents remained exparte. The first appellate court also relied on the judgment reported in Thirumeni v. Amirthalingam 1997 (3) LW 102 for the proposition that when the property belongs to several persons an agreement executed by one of them who holds a fraction of share, cannot be enforced and dismissed the appeal and confirmed the findings of the trial Court. Aggrieved against such findings, the appellant is before this court, claiming various grounds more particularly on the ground that the respondents 2 and 3 have no right in the property and remained exparte and therefore they are not the joint owners and the principle relied on the lower Court, is not applicable to the facts of the present case.
6.While admitting the second appeal, this court framed the following substantial questions of law :-
(i)Whether the Courts below have committed an error in casting the burden of proving items 1 to 11 & 21 of the suit properties to be separate properties of the first respondent/first defendant and holding the same to be the joint family properties in the absence of any reliable evidence adduced on the side of the appellant?
(ii)Whether the Courts below have committed an error in declining the relief of specific performance at least in respect of the undivided shares owned by the first respondent/first defendant, in respect of the properties held to be the joint family properties?
7.At the time of hearing the Second Appeal, the substantial questions of law which were already framed at the time of admission are recast which reads as follows :-
(i)Whether both the Courts below have committed an error in holding the suit sale agreement hit by Section 52 of the Transfer of Property Act without necessary pleadings and evidence?
(ii)Whether the Courts below have committed an error in casting the burden of proving the nature of suit items 1 to 25 as joint family properties on the plaintiff without necessary pleadings and proof adduced on the side of the first defendant?
(iii)Whether the Courts below have committed an error in declining the relief for specific performance even in respect of undivided share, if any, owned by the first defendant in joint family properties and in respect of the properties standing in the name of the plaintiff?
8.Heard the rival submissions made on both sides and perused the records.
9. According to the appellant the first respondent had entered into a sale agreement dated 12.04.2003 for the sale of the suit property at the rate of Rs.500/- per cent and received a sum of Rs.2,00,000/- as advance. It is also his contention that he was put in possession and was cultivating the land by raising casuarina trees. When the suit was filed for specific performance of the contract, the first respondent denied the execution of sale agreement by stating that he approached the father of the appellant for a loan of Rs.2,00,000/- for which he signed in blank papers offering the properties as collateral security. There is a clear admission of the receipt of Rs.2,00,000/- and also a further sum of Rs.1,00,000/-. However, the Courts below found that the first respondent had in fact entered into a sale agreement with the appellant.
10.The next contention of the first respondent was that the suit property does not belong to him alone, but it is a joint family property belonging to his father and his brothers and therefore, the sale agreement is invalid and other co-sharer's rights are involved. In fact, the trial Court has dealt with this issue and found that out of 25 items of the property, item Nos.1 to 11 and 21 are the absolute properties of the first respondent and items 12 to 20 and 22 to 25 are not proved to be the absolute properties of the first respondent. As such, the trial Court had shifted the burden on the appellant/plaintiff to prove the nature of the property.
11.The trial Court has found that regarding the self acquired properties of the first respondent, there was a mortgage suit pending and therefore the sale agreement is hit by Section 52 of the Transfer of Property Act. Ultimately, the trial Court relied on the decision reported in Thirumeni v. Amirthalingam 1997 (3) LW 102 for the proposition that when the property belongs to several person, an agreement executed by one of them who holds a fraction share, cannot be enforced and dismissed the suit. The first appellate Court also agreed with the findings of the trial Court.
12.However, in this second appeal, the grounds raised are, that Section 52 of Transfer of Property Act will not be attracted and the burden is upon the first respondent to prove the suit properties are the joint family properties; even assuming that some of the properties are joint family properties, the suit should have been decreed as far as the admitted absolute properties of the first respondent. Therefore, it has become necessary to answer all the three questions of law which were recast on 18.03.2015.
13.It is contended by Mr.Ravichandran, the learned counsel appearing for Mr.S.D. Venkateswarn for the appellants, that the burden is upon the first respondent to prove that the suit properties are the joint family properties, in which, the first respondent has only a limited share. The learned counsel would further submit that Courts below are wrong in shifting the burden on the appellant to prove the nature of the properties. According to the learned counsel, if it is true that the properties are joint family properties, the first respondent would have produced the documents and on the failure of production of documents, an inference is to be drawn that the properties are belonging to the first respondent. The learned counsel also pointed out that the respondents 2 and 3 remained exparte throughout the proceedings and have not objected and made any claim in respect of the property in question. It is further contended, by the learned counsel that the courts below have erred in holding that the sale agreement is hit by section 52 of the Transfer of Property Act and have also committed an error in declining the relief in respect of the admitted absolute property of the first respondent and also in respect of the undivided share of the first respondent in the alleged joint family property.
14.The learned counsel would also submit that the conduct of the first respondent has to be taken into consideration, who has totally denied the execution of sale agreement and the courts below have found that the sale agreement has been executed by the first respondent and the appellant has pleaded and proved his readiness and willingness and the Courts below ought to have granted the specific relief as prayed for.
15.The learned counsel for the appellant would submit that Section 52 of the Transfer of Property Act will not be a bar to enter into a sale agreement as it is based on the principle of lis pendens and the transferee pendente lite is bound by the decree just as much as he was party to the suit.
16.The learned counsel for the appellant relied on the following judgments in support of his contention :-
(i) AIR 1968 SC 1413 Gopal Krishnaji Ketkar V. Mohamed Haji Latif and others.
(ii) (2011) 11 SCC 153 Kammana Sambamurthy (dead) by LRs V. Kalipatnapu Atchutamma (dead) and others
(iii) (2013) 5 SCC 397 Thomson Press (India) Ltd., V. Nanak Builders and investors private limited and others
(iv)2013 (14) Scale 565 KN Aswathnarayana Setty (D) TR. LRs and others v. State of Karnataka and others and
(v)(2015) 1 SCC 705 Zarina Siddiqui V. A.Ramalingam @ R.Amarnathan.
17.The Hon'ble Supreme Court in the judgment reported in (2013) 5 SCC 397 Thomson Press (India) Ltd., V. Nanak Builders and investors private limited and others held as follows :-
It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.
18.The Apex Court in paragraphs 18 and 19 and 27 reported in (2011) 11 SCC 153 Kammana Sambamurthy (dead) by LRs V. Kalipatnapu Atchutamma (dead) and others observed as follows :-
18. Having regard to the conclusion that the vendors wife has got half-share in the property and that she is not executant to the agreement, what needs to be considered is, whether the agreement binds the vendors wife. According to the vendee, the vendor had implied authority to enter into agreement of the property and the vendors wife was clearly aware of that agreement and, therefore, she is estopped from raising the plea that she is not bound by that agreement. The High Court considered the evidence on record and held that no express or implied authority by the wife in favour of her husband is discernible from the facts and evidence. We agree.
19. As regards applicability of Section 41 of the Transfer of Property Act, 1882 (the TP Act), the High Court observed that it was not even the case of the vendee that the vendor was the ostensible owner of the property and, therefore, Section 41 has no application. We think that the High Court is right and in view of the afore noticed findings of the High Court, the conclusion that the vendee is not entitled to seek specific performance of the agreement to the extent of half-share of the vendors wife cannot be faulted. The crucial question in the case is whether the agreement could be enforced against the vendor to the extent of his half-share in the property.
27. In view of the above decisions of this Court and the facts and circumstances which have already been noticed by us, in our opinion, there is no impediment for enforcement of the agreement against the vendor to the extent of his half-share in the property.
19.The Hon'ble Supreme Court at para 6 of the judgment reported in 2013 (14) Scale 565 KN Aswathnarayana Setty (D) TR. LRs and others v. State of Karnataka and others is of the view that 6. ..... The principle of lis pendens is in accordance with the equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. A litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. However, it must be clear that mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The law simply postulates a condition that the alienation will, in no manner, affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court. The transferee cannot deprive the successful plaintiff of the fruits of the decree if he purchased the property pendente lite......
20.In the judgment reported in (2015) 1 SCC 705 Zarina Siddiqui V. A.Ramalingam @ R.Amarnathan thus the Supreme Court has held :-
33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance.
21.It is observed by the Hon'ble Supreme Court in AIR 1968 SC 1413 Gopal Krishnaji Ketkar V. Mohamed Haji Latif and others that ......We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
22.On the other hand, Mr.TP.Shankaran, the learned counsel for the first respondent would submit that the Courts below after analysing the facts and evidence adduced on either side have rightly rejected the relief and ordinarily the High Court will not interfere with the concurrent findings of the Courts below. The learned counsel also submitted that the scope under Section 100 of CPC is very limited and this Court cannot reappreciate the evidence. The learned counsel would submit that the first respondent has denied the execution of the sale agreement and the circumstances under which the documents was obtained, therefore, it is bounden duty of the Court to scrutinize the document before coming into a conclusion. The learned counsel would further submit that both the Courts below have found concurrently that the properties are joint family properties; the first respondent is only a sharer; the agreement cannot be enforced; and the rights of other parties are involved. According to the learned counsel, the appellant having knowledge of the fact that the other co owners have share in the property, had included a recital to the effect that the second and third respondents would also join in the execution of the sale. The learned counsel would vehemently argue that mere fact that the suit has been filed against all the co-owners would show that the property belong to the joint family and the first respondent had no authority to enter into a sale agreement of the entire property and the suit must fail. The learned counsel would further submit under Section 52 of Transfer of Property Act no transaction can be made pending lis and the Courts below have correctly refrained themselves from granting the relief of specific performance of the contract and this Court has no reason to interfere in the findings of the Courts below. The learned counsel would further point out that the first respondent has pleaded and also proved that the suit properties are ancestral properties and therefore the burden cast upon the first respondent was already discharged and the burden has shifted to the appellant to prove otherwise. The learned counsel would also further submit that the Courts cannot go beyond the terms of the agreement and the prayer sought for to grant a relief for the sale of the properties in which the first respondent has only a fraction of share.
23.The learned counsel for the respondent relied on the following judgments in support of his contention :-
(i)1945 (1) MLJ 261 - A.Kulandaivelu Pillai V. Sowbagyammal (iI)AIR 1951 Allahabad 141 (C.N.16)(1) Mahesh Prasad V. Mt.Mundar
(iii)AIR 1966 SCC 735(1) Bhagwati Prasad V. Chandrmaul
(iv)AIR 1966 SC 405 Bharat Singh and others V. Mst.Bhagirathi
(v)AIR 1970 SC 1717 Kedarnath Lal (dead) by his legal representatives and another V. Sheonarain and others
(vi)AIR 1971 SC 996 The State Bank of Travancore V. Arvindan Junju Panicker and others
(vii)(2006) 6 SCC 94 Standard Chartered Bank V. Andhra Bank financial Services Ltd
(viii)(2007) 4 SCC 163 Chinthamani Ammal V. Nandagopal and another
(ix)AIR 2007 SC 1332 Sanjay Verma v. Manik Roy and others
24.The learned counsel relied on the decision of the Hon'ble Supreme Court reported in (2006) 6 SCC 94 Standard Chartered Bank V. Andhra Bank financial Services Ltd wherein the Hon'ble Supreme Court has considered a plea that any rule of burden of proof is irrelevant when the parties have actually led evidence and that evidence has to be considered.
25.The learned counsel also relied on the judgment reported in AIR 1970 SC 1717 Kedarnath Lal (dead) by his legal representatives and another V. Sheonarain and others in para 16 it is held as follows :
16. .....If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation.
26.The learned counsel also relied on the Hon'ble Supreme Court judgment reported AIR 1966 SCC 735(1) Bhagwati Prasad V. Chandrmaul wherein it is observed in para 10 as follows :-
10. ......The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.
27.The learned counsel also relied on the judgment reported in AIR 1951 Allahabad 141 (C.N.16)(1) Mahesh Prasad V. Mt.Mundar wherein the Full Bench in para 23 of its judgment dealt with Section 52 of the Transfer of Property Act which reads as follows :-
23. ....By the decree, the judgment-debtors and those; who claim under him, are alone bound and they cannot be heard to say anything in derogation of the terms of the decree. The question, however, remains whether a transferee for consideration without notice can be deemed to be a privy of the judgment-debtor by the mere fact that the decree created a charge on the property. It did not take away the judgment-debtor's right in the property and he could, therefore, transfer his title. It might be that the law does not permit a judgment-debtor to transfer a property, which is the subject-matter of litigation so as to defeat the decree that might be passed by the Court. This could mean that the doctrine of lis pendens would apply, but I do not think that estoppel by record can easily be applied against a purchaser for value without notice as his rights were not subject-matter of the decision in the previous case, nor can the charge be put any higher than a mere equitable right against the judgment-debtor which would fasten on the conscience of a transferee from him who has notice of the charge.
28.In the decision reported in 1945 (1) MLJ 261 - A.Kulandaivelu Pillai V. Sowbagyammal cited on the side of the respondent it is held that Section 52 expressly provides for all cases of decrees in suits relating to immovable property whether they involve a mortgage or a charge or recovery of possession and states that no party to the suit can transfer or otherwise deal with the property so as to affect the rights of any other party thereto under any decree or order which may be made therein except under authority of the Court.
29.The Hon'ble Supreme Court in para 12 of the judgment reported in AIR 2007 SC 1332 Sanjay Verma v. Manik Roy and others observed as follows :-
12. The principles specified in Section 52 of the TP Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court.
30.In the decision reported in AIR 1971 SC 996 The State Bank of Travancore V. Arvindan Junju Panicker and others para 7 reads as follows :-
7. We shall first take up the questions whether the plaintiffs Tharwad was divided or undivided and further whether the original first plaintiff was the Karanavan of the Tharwad when the suit was instituted. On these questions the evidence is completely one-sided. The plaintiffs have adduced evidence to show that the Tharwad is undivided and that the original first plaintiff was the Karanavan of the Tharwad. There is no reason to disbelieve that evidence. That evidence was unrebutted. That apart, a Hindu family is presumed to be joint unless the contrary is established. There is no evidence on record to rebut that presumption. We agree with the learned Judge of the High Court that there was no basis for the first appellate court for doubting the fact that the original first plaintiff was the Karanavan of the Tharwad at the relevant time.
31.In the citation reported in AIR 1966 SC 405 Bharat Singh and others V. Mst.Bhagirathi it is held that there is a strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of the joint Hindu family to establish it.
32.In the judgment reported in (2007) 4 SCC 163 Chinthamani Ammal V. Nandagopal and another in para 17 it is observed as follows :
17. In law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefor.
33. This court had considered the rival submissions. The sale agreement dated 12.04.2003 was entered into between the appellant and the first respondent. The first respondent would assert that the schedule mentioned properties are his absolute property under his possession and enjoyment. For execution of sale, the time fixed was six months with a following conditions: (i) the vendor has to hand over the original documents to the purchaser; (ii) the vendor has to obtain the signatures of his brother one P.K.Arumugam and his brothers son T.Varadharajan and execute the sale and if he fails to obtain signature and execute a sale, the purchaser is entitled to register the sale agreement as a sale deed.
34.In the written statement, after the initial denial of execution of sale agreement, the first respondent would state the suit properties which are the subject matter of the sale agreement, are the joint family properties which consist of the first respondent father Kandasamy Mudaliar, his sons one Thanickachalam, Arumugam (Second respondent and first respondent) along with a sister Padma.
35.During the course of evidence, the first respondent has not produced any document relating to the suit property. It is a fact that the appellant has produced Ex.A7, which is a copy of mortgage deed under which the first respondent has mortgaged 12 items of the suit properties. Only from this document, the trial Court has come to the conclusion that item Nos.1 to 11 and 21 are alone absolute properties of the first respondent and the appellant has failed to prove that the remaining items are not joint family properties. It is well settled principle that a person who pleads is to prove the fact that the properties are joint family properties are more so then he alone has the knowledge about such fact. When the first respondent has pleaded that all the properties are joint family properties and has not produced any document against the third party purchaser the presumption cannot be drawn in his favour. In fact, the first respondent has totally denied that he is the absolute owner of the property which was found to be untrue and he has admitted in his evidence that some of the properties are absolute property and he has also mortgaged many of the properties under Ex.A7.
36. As rightly pointed out by the learned counsel for the appellant the first respondent has not come out with true facts before the Court.
37. As stated in the judgment reported in AIR 1968 SC 1413 Gopal Krishnaji Ketkar V. Mohamed Haji Latif and others ......We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
38.The learned counsel for the respondent would rely upon the recitals in the sale agreement that the signatures of the respondents 2 and 3 has to be obtained in the sale deed and would also rely upon the filing of the suit against the respondents 2 and 3. It is pertinent to note at this juncture that the respondents 2 and 3 remained exparte throughout and not made any claim or right over the suit properties. Having asserted that the suit properties are the absolute properties and having entered into an agreement of sale the first respondent cannot go back and say that the properties do not belong to him and set up the plea that the properties are joint family properties. Fortunately, the respondents 2 and 3 were joined as parties to the suit and put on notice, but they have failed to appear and stake a claim in the properties. Therefore, the Courts below have erred in shifting the burden on the appellant to prove a fact which is only a plea of the vendor to defeat the right accrued under the sale agreement for the purchaser. Having asserted his right in the sale agreement, the vendor cannot fall back and say that he has no interest in the property and that too in the absence of any evidence. He would be estopped if it is proved that he is the owner of the property or if there is no other claim by the alleged co sharers. The burden is heavily on the first respondent to prove the fact that the properties belong to the joint family and the recital that he would also get the signature of the other members does not create a right. This is evident from the subsequent recital that in failure of obtaining the signature, the purchaser is entitled to register the agreement as a sale deed. It is, again, well settled that a document has to read in whole. The perusal of the agreement would show that there is an assertion of title and intention of sale. Anything contrary is to be proved by the party who pleads and the respondent failed to prove and his defenses are only to defeat the terms of the agreement. For the reasons stated above, the substantial questions of law 2 and 3 are answered in favour of the appellant.
39.Section 52 of the Transfer of Property Act, 1882 reads as follows:-
52. Transfer of property pending suit relating thereto - During the pendency in any court having authority 3[4[within the limits of India excluding the State of Jammu and Kashmir] Government or established beyond such limits] by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
40.It is well settled law that there is no impediment to deal with the property by a owner during lis pendens, however a transferee pendente lite is bound by the decree just as much as he was a party to the suit, as per the decision in 2013 (14) Scale 565 KN Aswathnarayana Setty (D) TR. LRs and others v. State of Karnataka and others
41.In (2013) 5 SCC 397 Thomson Press (India) Ltd., V. Nanak Builders and investors private limited and others the Hon'ble Supreme Court has again held that it is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.
42.Therefore the courts below have erred in holding that the suit for specific performance is hit by section 52 of the Transfer of Property Act, 1882.
43.In (2015) 1 SCC 705 Zarina Siddiqui V. A.Ramalingam @ R.Amarnathan wherein the Hon'ble Supreme Court has held in Para 33 as follows:-
33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance.
44.Though the first respondent has totally denied the execution of the sale agreement and also had taken a specific plea that the suit properties are joint family property. He has not produced any evidence within his knowledge and the same would go to show that he has not come to court with clean hands, but only with an idea of defeating the right accrued to the purchaser under a valid sale agreement.
45.The courts below have wrongly presumed that the burden is on the purchaser to prove that the suit properties are not joint family properties and applied Section 52 of Transfer of Property Act wrongly and declined the discretionary relief. The first substantial questions of law is also answered in favour of the appellant.
46.In the result, the second appeal is allowed and the suit is decreed as prayed for directing the appellant to deposit the balance if any, of the sale consideration within three months from the date of decree and thereafter, the first respondent is directed to execute the sale deed within three months failing which the Trial court shall execute the same. No costs. Consequently, connected miscellaneous petitions are closed.
29.04.2015 Index : Yes/No Internet : Yes/No tsh To The Principal District Judge, Chengalpattu.
The Sub Judge, Madurantakkam.
K.B.K.VASUKI, J tsh SA.No.1347 of 2010 29.04.2015.