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1 - 9 of 9 (0.27 seconds)R.K. Mohammed Ubaidullah & Ors vs Hajee C.Abdul Wahab (D) & Ors on 18 July, 2000
6. Mere execution of Agreement to Sell does not create interest or
a charge on the property under the Transfer of Property
Act,1882. An agreement for purchase creates interest in
CS(OS) No.701/2008 Page No.6
personam but no privity in the estate. Agreement to sell gives
right to ask for execution of a registered sale deed or to file a
suit for specific performance for the said purpose against the
seller or parties to the agreement. Under Section 19(b) of the
Specific Relief Act,1963 specific performance can be also
enforced against a subsequent purchaser, except when the
purchaser has paid value in good faith and without notice of the
earlier agreement to sell. Good faith implies honesty and
exercise of due care and attention. Notice as defined in section
3 of the Transfer of Property Act, 1882, may be actual
knowledge of the agreement to sell or constructive notice, when
a purchaser willfully abstains or due to gross negligence fails to
make inquiry which ought to have been made (see, Ram Baran
Prasad versus Ram Mohit Hazra reported in AIR 1967 SC
744, P.K.Mohammed Ubaidullah and Ors. versus Hajee C.
Abdul Wahab (D) by Lrs.
Bhup Narain Singh vs Gokhul Chanda Mahton on 18 December, 1933
8. Learned counsel for the defendants relied on Sections 3 and
55(1) (a) of the Transfer of Property Act and Section 19(b) of
the Specific Relief Act, to urge that it is for the defendant Nos. 2
and 3 to establish and prove that they were purchasers in good
faith for value and without notice of the earlier agreement to sell
between the plaintiff and defendant No.1. Reliance was placed
on Bhoop Narain Singh versus Gokul Chand Mahton and
others reported in AIR 1934 Privy Council 68 wherein it has
been observed that it is for the transferee purchaser to
establish the circumstances which will allow him to retain the
property. Good faith and lack of notice are elements within the
knowledge of the purchaser. The said decision does not relate
to interim orders but deals with the question of onus and that
the initial burden is on the purchaser. The said case was of no
evidence or insufficient evidence on record at the time of final
decision, on good faith and lack of notice of the earlier
agreement to sell. Question of discharge of onus, shifting of
CS(OS) No.701/2008 Page No.8
onus etc. are a matter of trial and final judgment. At this stage,
to decide the interim application, three principles of prima facie
case, balance of convenience and irreparable harm and injury
have to be applied.
Samee Khan vs Bindu Khan on 1 September, 1998
23. Order XXXIX, Rule 2A of the Code, stipulates that in case
of disobedience or breach of a term of an interim order,
property of the violator can be attached and the violator can be
also detained in a civil prison. Attachment can continue for a
term of one year and if the breach/disobedience continues, the
property can be sold and compensation paid to the injured
party. Attachment is to compel compliance and comes to an
end when compliance is made. Civil imprisonment is a mode of
punishment for being guilty of such disobedience (see, Samee
Khan versus Bindu Khan reported in (1998) 7 SCC 59). The
rule is to ensure enforcement of the interim order and seeks to
remedy the effect of disobedience and restore status quo ante.
In the present case it will mean demolition of the construction
made by defendant Nos. 2 and 3 after the Order dated 22nd
July, 2008 and thereafter the said defendants will be at liberty
to carry out fresh construction. This may not be proper.
All Bengal Excise Licensees ... vs Raghabendra Singh & Ors on 9 March, 2007
24. Yet defendant Nos. 2 and 3 cannot be let off by a mere
warning. High Court as a Court of record has power to suitably
modulate relief or penal action (see, All Bengal Excise
Licensees Association versus Raghabendra Singh,
reported in (2007) 11 SCC 374 and High Court of Judicature
at Allahabad versus Raj Kishore Yadav, reported in (1997) 3
SCC 11).
High Court Of Judicature At Allahabad ... vs Raj Kishore Yadav And Ors on 24 February, 1997
24. Yet defendant Nos. 2 and 3 cannot be let off by a mere
warning. High Court as a Court of record has power to suitably
modulate relief or penal action (see, All Bengal Excise
Licensees Association versus Raghabendra Singh,
reported in (2007) 11 SCC 374 and High Court of Judicature
at Allahabad versus Raj Kishore Yadav, reported in (1997) 3
SCC 11).
The Transfer Of Property Act, 1882
Ram Baran Prosad And Anr. vs Ram Mohit Hazra And Anr. on 18 November, 1959
6. Mere execution of Agreement to Sell does not create interest or
a charge on the property under the Transfer of Property
Act,1882. An agreement for purchase creates interest in
CS(OS) No.701/2008 Page No.6
personam but no privity in the estate. Agreement to sell gives
right to ask for execution of a registered sale deed or to file a
suit for specific performance for the said purpose against the
seller or parties to the agreement. Under Section 19(b) of the
Specific Relief Act,1963 specific performance can be also
enforced against a subsequent purchaser, except when the
purchaser has paid value in good faith and without notice of the
earlier agreement to sell. Good faith implies honesty and
exercise of due care and attention. Notice as defined in section
3 of the Transfer of Property Act, 1882, may be actual
knowledge of the agreement to sell or constructive notice, when
a purchaser willfully abstains or due to gross negligence fails to
make inquiry which ought to have been made (see, Ram Baran
Prasad versus Ram Mohit Hazra reported in AIR 1967 SC
744, P.K.Mohammed Ubaidullah and Ors. versus Hajee C.
Abdul Wahab (D) by Lrs.
The Code of Civil Procedure, 1908
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