Madras High Court
Mohideen Sahib vs A. Amena Bi on 18 December, 2006
Equivalent citations: AIR 2007 MADRAS 133, 2007 (3) ALL LJ NOC 520, 2007 (4) ABR (NOC) 580 (MAD), 2007 AIHC NOC 342, (2007) 2 CIVILCOURTC 329, (2007) 1 CURCC 435, (2007) 1 CTC 505 (MAD)
Author: V. Dhanapalan
Bench: V. Dhanapalan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18/12/2006 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN S.A. No.1550 of 1994 Mohideen Sahib .... Appellant Versus A. Amena Bi A. Musthapa A. Jaffar V. Rajendran .... Respondents Second Appeal filed against the judgment and decree dated 29.11.1983 made in A.S. No.286 of 1992 on the file of the I Additional Subordinate Judge, Tiruchirapalli confirming the judgment and decree dated 25.09.1992 made in O.S. No.563 of 1989 on the file of the Court of District Munsif, Musiri. !For appellant ... Mr. R. Devaraj for Mr. S.M. Loganathan ^For R4 ... Mr. K. Govindarajan for M/s. Sarvabhauman Associates :JUDGMENT
The unsuccessful plaintiff, who filed a suit for specific performance of agreement dated 01.07.1989 and lost his case in the first appellate court as well, is the appellant herein.
2. The case of the plaintiff, in brief, is that the defendants 1 to 3 before the Trial Court who are the respondents 1 to 3 herein, entered into a sale agreement dated 01.07.1989 with him for sale of the suit property for a consideration of Rs.3,240/- and the said consideration was also received by them, agreeing to execute the Sale Deed within a period of one year. On knowing that the defendants 1 to 3 tried to alienate the suit property, the plaintiff issued an advertisement on 07.08.1989 in 'Maalai Murasu' daily. Subsequently, having known that the defendants 1 to 3 have sold the suit property to the fourth defendant, the plaintiff filed the suit for specific performance of the sale agreement dated 01.07.1989.
3. In their written statement, the defendants 1 to 3, first of all denied the agreement dated 01.07.1989. It was their case that the suit property did not belong to them on 01.07.1989 and it belonged to one Abdul Razak, the husband of the first defendant. According to them, they had approached the plaintiff for a loan for which he insisted upon them to give the suit property as security and it was only for that purpose, they executed a document even without knowing about the recitals in the document. It was their further case that only after receipt of notice in the suit, they came to know that the document which they executed was a sale deed and they had no knowledge of the paper advertisement when they sold the property to the fourth defendant for a valuable consideration.
4. Similarly, the fourth defendant too, filed his written statement stating that he did not have any knowledge of the paper advertisement and that he purchased the suit property for Rs.5,000/- only as a bona fide purchaser.
5. On the side of the plaintiff, he himself got examined as P.W.1 besides marking eight documents. On the side of the defendants, the second and fourth defendants were examined as D.W.1 and D.W.2 respectively and no exhibit was marked on their side.
6. The Trial Court, on an analysis of the oral and documentary evidence, framed four issues and holding that the plaintiff had not proved sufficiently to the effect that the fourth defendant had knowledge of the paper publication, further held that the plaintiff is entitled to get Rs.3,240/- from the defendants 1 to 3 and dismissed the suit in other respects and this finding of the Trial Court was upheld by the first appellate court, against which the present Second Appeal.
7. This Court, on 12.01.1995, admitted the present Second Appeal on the substantial question of law as to whether the approach of the Courts below in negativing the claim of specific performance is justifiable in view of Section 19 of the Specific Relief Act.
8. Mr. Devaraj, learned counsel for the appellant/plaintiff has contended that the appellant/plaintiff has effected publication under Ex.A.2 dated 07.08.1989 in Maalai Murasu, a popular evening daily having wide circulation in Trichy and despite that, the fourth respondent had purchased the suit property at his own risk and he had failed to exercise care and diligence to know about the title of the suit property which is mandated under Section 3 of the Transfer of Property Act. It is his further contention that the fourth defendant has stated neither in his pleadings nor in his evidence that he had made enquiry before his purchase and mere statement to the effect that he was not aware of the earlier proceedings is not suffice to prove his case of bona fide purchaser as per Section 19(b) of the Specific Relief Act. In this context, he has relied on a judgment of the Supreme Court reported in 2000 (3) LW 675 in the case of R.K. Mohammed Ubaidullah & others vs. Hajee C. Abdul Wahab (D) by LRs and others wherein it was held as under: (paras 15 and 16) "As can be seen from Section 19(a) and (b) extracted above, specific performance of a contract can be enforced against (a) either party thereto and
(b) any person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 19(b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. Hence, the onus of proof of good faith is on the purchaser who takes the plea that he is innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of Penal Code emphasises due care and attention in relation to the good faith. In the General Clauses Act, emphasis is laid on honesty.
Notice is defined in Section 3 of Transfer of Property Act. It may be actual where the party has actual knowledge of the fact or constructive. "A person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence would have known it. Explanation II of said Section 3 reads":
"Explanation II - Any persons acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."
9. On the same aspect, Mr. Devarajan has placed reliance on a recent Full Bench judgment of this Court reported in 2006 (4) CTC 805 in the case of B. Suresh Chand vs. State of Tamil Nadu represented by the Secretary, Revenue Department, Fort St. George, Madras - 9 and another wherein it was held in paragraph 25 as under:
"A reading of Section 3 of Transfer of Property Act, 1882, leads to the conclusion that not only a wilful abstention from an enquiry which a person ought to have made, but the gross negligence to make enquiry also would amount to notice of a fact to him. When the prudence of a person requires him to make an enquiry, but due to his own negligence, he failed to make enquiry, he falls in the category of a person, with notice. A purchaser of the property who claims the transaction to be bona fide without notice, the yardstick to be applied for the "notice" is given in Section 3 of the Transfer of Property Act, 1882, and only by the application of this provision, a purchaser who seeks protection is to be identified, whether he is a purchaser for value without notice. The necessity of the purchase, the intention of the transfer, the relationship between the vendee and vendor are all vital factors to find out the reasonableness of the person in purchasing the property. Sometimes unexplained secrecy or the haste in the transactions may also throw some light on the bona fides or mala fides. To decide whether a transaction was genuine or bona fide or mala fide, all facts relating to the conduct of the parties to the transaction have to be weighed as a whole."
10. On the aspect of relief of specific performance, the counsel for the appellants has placed reliance on a Division Bench judgment of this Court reported in 1993(2) MLJ 7 (DB) in the case of Nanjammal (died) vs. Palaniammal wherein it was observed as under: (para 6) "Hence, the only question to be considered is whether the relief of specific performance should not be granted to the plaintiff. The normal rule is that once the truth of the agreement is made out, the Court shall enforce it unless there are circumstances which would prove that equity will suffer by enforcing the agreement for sale. In the present case, no such circumstance has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the defendant and relief of specific performance should be denied.. . ."
11. Contending contra, Mr. Govindarajan, learned counsel for the fourth respondent has contended that the possession of the property is only with the defendants 1 to 3 and the fourth defendant after bona fide enquiry about the possession and title of the suit property, purchased the same for a consideration of Rs.5,000/-. It is his further submission that it is only the plaintiff who got Ex.A.1 executed by the defendants 1 to 3 when they did not have any right, title or interest of the suit property since it belonged to the husband of the first defendant and thus, it is only the plaintiff who has not come to the Court with clean hands to seek the equitable relief of specific performance. The main contention advanced by the counsel for the fourth defendant is that mere issuance of a paper advertisement would not amount to a constructive notice unless and otherwise it is proved by the person issuing the advertisement that he had drawn the attention of the person concerned to the advertisement issued by him.
12. To substantiate his argument that the attention of the fourth defendant should have been drawn, he has relied on a judgment of the Calcutta High Court reported in AIR 1929 Calcutta 736 in the case of Bhairab Chandra Sinha vs. Kalidhan Roy Choudhury & Others in which it was held as under:
". . .The law requires, however, that in order that a notification in a newspaper may amount to actual notice to a subscriber of the said newspaper, it must be shown that his attention was drawn to the said notification."
13. In support of his arguments, he has also relied on:
i. a decision of the Supreme Court reported in (2001) 9 SCC 521 in the case of Pakeerappa Rai vs. Seethamma Hengsu & Others: (Para 2) ". . . It was brought on record that the auction-purchaser was near to the husband of Laxmi who was one of the defendants in O.S. No.133 of 1963. The first appellate court, on the basis of the said evidence, came to the conclusion that the auction-purchaser was not a stranger to the suit. Under such circumstances, it cannot be urged that the conclusion arrived at by the court below was erroneous. The position would be different if the High Court had the jurisdiction to reappraise the evidence. In such a situation, the High Court might have come to a different conclusion. But the High Court in exercise of power under Section 100 CPC cannot interfere with the erroneous finding of fact howsoever gross the error seems to be. We, therefore, do not find any merit in the contention of the learned counsel for the appellant."
ii. Yet another judgment of the Supreme Court reported in (2000) 7 SCC 409 in the case of Thimmaiah & Others vs. Ningamma & Another: (paras 12, 13 &
14) "In Jaiswal case, this Court has, no doubt, held that:
"A decision of the first appellate court reached after placing the onus wrongfully or based on no evidence, or where there has been substantial error or defect in the procedure, producing error or defect in the decision of the case on the merits, is not conclusive and a second appeal lies to the High Court against that decision."
But at the same time, this Court has noted that the High Court has no jurisdiction to entertain a second appeal "on the ground of an erroneous finding of fact however gross or inexcusable the error may seem to be". In other words, if there is some evidence and the appreciation of the evidence is erroneous, a second appeal will not lie.
Further, the decision in Jaiswal case was rendered prior to the amendment of Section 100 by which the provisions of Second Appeal are more stringent and have been strictly limited to those cases where a "substantial question of law arises" and in no others."
14. I have carefully considered the rival submissions made by the counsel on either side and have also gone through the judgments relied on by them in support of their case.
15. While it is the case of the appellant/plaintiff that he had issued an advertisement in a leading Tamil daily in respect of the suit property and the fourth defendant should have exercised due care in enquiring about the title and possession of the suit property, it is the case of the fourth defendant that he was not aware of the sale agreement entered into between the plaintiff and the defendants 1 to 3 and also had no knowledge of the paper advertisement given by the appellant/plaintiff.
16. From an analysis of the evidence, it is seen that Ex.A.1, Sale Agreement dated 01.07.1989 and Ex.B.8, Sale Deed dated 19.10.1989 are two documents out of which one can be enforceable for the relief of specific performance.
17. Admittedly, it is the finding of the Trial Court that Ex.A.1, Sale Agreement is true and genuine. It is seen that the fourth defendant who was examined as D.W.2 has categorically admitted that the appellant's land and the suit property are adjacent properties and he was not aware of the name of the two daughters of the first defendant and that he was not aware of the date of execution of the sale deed in his favour. To decide the substantial question of law, it is seen that Ex.A.1 and Ex.B.8 have been attested by one Mookan and therefore, the fourth defendant had notice of earlier transaction between the plaintiff and the defendants 1 to 3. It is further seen that on 17.08.1989, a paper publication was effected in Maalai Murasu, (Ex.A.2) having wide circulation in Trichy and the fourth defendant, had noticed the same and in spite of it, had purchased the same at his own risk and therefore, he is not a bona fide purchaser. In other words, on 19.10.1989, the fourth defendant had the knowledge of Ex.A.1, both from the attestor to Ex.A.1 and Ex.B.8 and also by way of paper publication effected in Maalai Murasu which is a constructive notice contemplated under Section 3 of the Transfer of Property Act. Therefore, the transaction made subsequent to Ex.A.1, Sale Agreement is not a bona fide transaction and in that view of the matter, the plaintiff is entitled to get Ex.A.1 enforced.
18. In this connection, reliance has been placed by the learned counsel on the Supreme Court ruling reported in 2000 (3) LW 675 (supra) which says that the purchaser of a property must be more vigilant and should make enquiry with regard to the earlier transaction in connection with the property in question and in the instant case, nowhere, it has been stated that the fourth defendant had made enquiry before he purchased the property and did not even plead to that effect and the mere statement to the effect that he was not aware of the earlier proceedings is not sufficient to prove his case of a bona fide purchaser under Section 19(b) of the Specific Relief Act and this is clear from the following finding of the Trial Court.
"thjpa[k;> thjp rhl;rp 2k;> thjp rhd;W M1 ,aw;wg;gl;lJ Fwpj;J xj;Jiuj;J rhl;rpak; mspj;jpUg;gija[k; fUj;jpw;bfhz;L ghh;f;Fk;nghJ> thjp rhd;W M.1 1-07- 1989-Mk; njjp ,aw;wg;gl;lbjd;gjpYk;. mJ cz;ikahdJ vd;gjpYk; Iag;ghL ,y;iybad ,t;btGtpdhtpw;F thjpf;F Mjuthf Kot[ bra;fpnwd;."
19. From a careful scrutiny of the records available before this Court, it is seen that the Trial Court has given a clear finding that the agreement for sale, i.e. Ex.A.1 dated 01.07.1989 is true and genuine and the defendants 1 to 3 have admitted the signatures in the said exhibit. Though it is contended by the defendants 1 to 3 that Ex.A.1 was given for the purpose of loan they borrowed, there is no evidence on their side to prove their case. It is a settled legal position that when a document is admitted as a genuine one, the next question that arises is about its enforceability. It is clear that one attestor by name Mookkan has witnessed both Exs.A.1 and B.8. Since the time-gap between the execution of Ex.A.1and Ex.B.8 is only about three months, it is quite natural to arrive at a conclusion that the said Mookkan had the knowledge of the earlier document i.e. Ex.A.1 and would have brought this to the knowledge of the fourth defendant. Secondly, the plaintiff had effected publication on 17.08.1989 in Maalai Murasu, a popular evening daily which is having a wide circulation in Trichy and therefore, it is quite clear that the fourth respondent had executed the Sale Deed in Ex.B.8 after a lapse of about just two months from the date of publication in Maalai Murasu. Therefore, there is every possibility that the fourth defendant had the knowledge of paper publication in Ex.A.2 and this fulfills the compliance underlined under Section 3 of the Transfer of Property Act in respect of constructive notice by which a purchaser must be more vigilant and diligent in enquiring about the ownership and title of the property. These two aspects amply prove that the fourth respondent was aware of Ex.A.1 entered into between the plaintiff and the defendants 1 to 3. This being so, in my opinion, the fourth respondent cannot be said to be a bona fide purchaser and therefore, it is clear that he had the knowledge of Ex.A.1 on the date of executing Ex.B.8. Why I opine so is, the way in which the fourth defendant had executed the sale deed gives room for suspicion. In paragraph 18 of the appellate court's judgment, it has been observed that he has executed the Sale Deed and got the possession of the property on the very same day and this gives room to believe that there is some unexplained secrecy or haste in the transaction. In this context, the latter portion of the decision of the Full Bench of this Court (supra) relied on by the counsel for the appellant/plaintiff is squarely applicable to the case on hand. That apart, the fourth defendant who was examined as D.W.2, has deposed that he was not aware of the names of the two daughters of the first defendant who executed the sale deed and was not even aware of the date of execution of the sale deed in his favour. This make things clear and would further prove that the fourth defendant had executed Ex.B.8 knowing fully well that there was publication in Maalai Murasu vide Ex.A.2 and he should have been informed by Mookkan, attestor in both Exs.A.1 and B.8. In such circumstances, though, generally, concurrent findings of the Courts below are not interfered with by this Court while dealing with an appeal under Section 100 CPC, since these two aspects have not been duly considered by the courts below in the proper perspective, I do not find any sort of hesitation in interfering with their erroneous finding that the plaintiff is not entitled to the relief of specific performance. Accordingly, the substantial question of law as to whether the approach of the Courts below in negativing the claim of specific performance is justifiable in view of Section 19 of the Specific Relief Act, based on which this appeal has been admitted, is answered in negative and as such, the judgment and decree of the Courts below are set aside and appeal is allowed holding that the plaintiff/appellant is entitled to have the relief of specific performance as prayed for by him. No costs.
In view of the above conclusion, the defendants 1 to 3 are directed to compensate the sale consideration received under Ex.B.8 to the fourth defendant.
cad To
1. The I Additional Subordinate Judge, Tiruchirapalli
2. The District Munsif, Musiri