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Judgment
S. Ashok Kumar, J.—The defendants are the appellants in this second appeal.
The plaintiff filed the suit for specific performance of the suit agreement. According to the plaintiff the suit properties belonged to the 1st
defendant and he was the owner thereof. He executed an agreement of sale dated 13.9.1982 in favour of the plaintiff for sum of Rs. 6500/= and
received an advance of Rs. 500/= on the same date of agreement. As per the terms of the said agreement the plaintiff should pay Rs. 1500/= in
October 1982, and the balance of Rs. 4,500/= on or before 9.5.1983 and that upon receipt of the amount aforesaid, the 1st defendant has to
execute the sale deed conveying the suit properties to the plaintiff and put her in possession thereof. In pursuance of the agreement the plaintiff
offered to pay Rs. 1500/= even prior to October 1982 i.e., 21.9.1982, but the first defendant stated that he would receive the same along with Rs.
4,500/= to be paid later and that only Rs. 500/= alone may be paid to him on that date for his immediate necessity and received Rs. 500/= on
21.9.1982 and had endorsed the payment on the back of the agreement. The plaintiff offered to pay the balance of Rs. 5500/= even in October
1982 itself and wanted the 1st defendant to execute the sale deed but he evaded to receive the amount and postponed the receipt of the
consideration and execution of the sale deed from day to day. Later the plaintiff came to know that that he had negotiated and sold the properties
to defendants 2 to 5 represented by their guardian Chinnakannu alias Lingammal, belonging to the same village where the properties are situate and
where the first defendant also resides. The plaintiff had always been ready and prepared to pay the balance of the sale consideration of Rs. 5500/=
to the first defendant and had also offered to pay the same to him on so many days during the months of October and November 1982 itself. The
first defendant without disclosing the fact of his having sold away the properties to defendants 2 to 5 on 17.11.1982 with mala fide intention and
ulterior motive had been simply postponing and evading to receive the balance amount and execute the sale deed. The period for the payment of
the sale consideration as per the sale agreement is till 9.5.1983. But even during the subsistence of the said agreement, the first defendant had sold
the suit properties to defendants 2 to 5 on 17.11.1982 itself. The suit agreement is well known to the guardian mother of the defendants 2 to 5 and
she had also been told about that by the villagers. As such the sale by the defendants 2 to 5 is void and invalid as against the plaintiff and not
binding on her and cannot affect her rights to enforce the agreement of sale, the subsequent vendeeds namely the defendants 2 to 5 are bound by
the suit agreement and are liable u/s 27 of the Specific Relief Act. The defendants are therefore liable to receive the balance of consideration of Rs.
5500/= and execute the sale deed conveying the suit properties in faovur of the plaintiff and to put her in possession of the same in pursuance of
such sale.
The first defendant filed a written statement contending that it is not true that he had executed an agreement dated 13.9.1982 in faovur of the
plaintiff agreeing to sell the suit lands to the plaintiffs for a sum of Rs. 6500/= and received an advance of Rs. 500/=. The first defendant never met
the plaintiff and he knows only the plaintiff''s husband namely Narasimhachari. The negotiations for arriving at the agreement of sale dated
13.9.1982 were between the first defendant and the said Narasimhachari. The first defendant and one Krishnan met the plaintiff''s husband at his
shop in KGF and after negotiations the first defendant agreed to sell the suit lands to Narasimhachari for Rs. 6500/=. It was also suggested by
Narasimhachari that the agreement should stand in faovur of his wife, the plaintiff. Thereupon the first defendant executed the agreement in faovur
of the plaintiff. Hence the plaintiff has no locus standi to file the sit and she is not a party to the contract entered into. It is not correct that on
13.9.1982 an advance amount of Rs. 500/= was paid to the first defendant. ONly Rs. 250/= was paid by Narasimmachari towards advance
amount and he promised the first defendant that he would pay the balance advance of Rs. 250/= later and receive Rs. 250/= towards balance
amount but the first defendant should agree to put the advance amount of Rs. 500/= as that would give credibility to the agreement. The said
Krishan who accompanied the first defendant assured that the plaintiff''s husband could be trusted and he could believe his words. Hence the first
defendant believed the words of Krishnan and Narasimmachari and executed the agreement of sale on 13.9.1982. The first defendant denied the
plaintiff''s offer to pay Rs. 1500/= even prior to October 1982 on 21.9.1982 and receipt of Rs. 500 only for his immediate necessity. According to
the first defendant he and Krishnan went to KGF and met Narasimmachari with a request to pay more amount to meet his personal expenses. He
also agreed to pay Rs. 750/= and requested the first defendant to make an endorsement for ereceiving the amount of Rs. 500/= so that a total
advance of Rs. 1000/= would be credited. Though the first defendant hesitated the said Narasimmachari and Krishnan assured that the amount
would come and therefore the first defendant made an endorsement in the agreement without receiving Rs. 500/= or any amount. But no amount
was paid and the first defendant wanted to strike off the endorsement but Narasimmachari assured to get the amount within a week. But the
amount was never paid as promised.
It is also false to say that Rs. 5500/= was offered even in October 1982 itself. When the first defendant asked the plaintiff for non payment of
Rs. 750/= s promised, Narasimmachari got wild and abused him with filthy language and vulgar words. He also declared that he would not
purchase the suit properties from him and he also demanded the advance amount of Rs. 250/=. In such circumstances, only the first defendant sold
the suit properties to the defendants 2 to 5. Having revoked the sale agreement, probably the plaintiff''s husband suddenly developed the idea of
harassing the first defendant and filed the suit vexatiously. It is not correct to state that the defendants 2 to 5 are reside in the village where the suit
properties are situate. The plaintiff was never ready and willing to perform the suit agreement by paying the balance sum. Her husband revoked the
sale agreement even on 30.9.1982. The first defendant sold the suit lands for a valuable consideration of Rs. 16,000/= to defendants 2 to 5. The
plaintiff or her husband did not meet the first defendant after revocation of the sale agreement on 30.9.1982. The suit agreement ceased and came
to an end on 30.9.1982 itelf.
The defendants 2 to 5 filed a common written statement in the line of the contents in the written statement filed by the first defendant besides
contending that the sale by them after the revocation of the suit agreement on 13.9.1982 is valid in law, and they have spent Rs. 5000/= in
improving the lands and in any case they are entitled to claim equities in respect of the said improvements.
On the above pleadings and on hearing the learned Counsel appeared on either side and on a perusal of the evidence both oral and
documentary, the trial court dismissed the suit holding that the defendants 2 to 5 are bona fide purchasers for valuable consideration and the
plaintiff is not entitled to the relief of specific performance. On appeal, by the plaintiff, the first appellate court granted the suit reliefs by allowing the
appeal. As against the same the defendants have preferred this Second Appeal.
At the time of admission, this Court framed the following substantial questions of law in this Second Appeal:-
(i) When the defendants 2 to 5 have discharged their burden by proving that they are bona fide purchasers for value in good faith without notice of
the suit agreement, whether the plaintiff is entitled to the relief?
(ii) Whether the lower appellate court is correct in presuming the facts of the case on its own when the evidence on record is contrary to the said
presumption?
Learned counsel appearing for the appellants/defendants contended that whether the subsequent purchasers had knowledge of the purchase or
not is the only issue to be decided in this appeal. Learned counsel also stated that in his evidence D.W.1 has stated that only after suit notice he
came to know about the sale, and the first appellate court has wrongly presumed the things and reversed the well considered findings of the trial
court. He also stated that once the defendants have deposed clearly that they do not had any knowledge of the previous agreement, then the
burden shifts to the other side to prove the contra.
Per contra, learned Counsel appearing for the respondent/plaintiff contended that even D.W.1 admitted that they had knowledge about the suit
agreement between the plaintiff and the first defendant and hence they are not bona fide purchasers.
There is no dispute as to the ownership of the suit property and the suit agreement Ex.A.1 dated 19.9.1993 executed between the plaintiff and
the first defendant. According to the plaintiff, the first defendant even during the subsistence of the suit agreement period, has sold the suit property
for a higher sale consideration to the defendants 2 to 5 which is invalid and not binding on him. But according to the first defendant, the plaintiff''s
husband had revoked the agreement by his conduct even on 30.9.1982 and later only he sold the property for valuable consideration and the
plaintiff is not entitled to the relief of specific performance.
The first appellate court after referring to the decisions reported in Harendra Chandra Das and Others Vs. Nanda Lal Roy and Others, and
Gostho Behari Sadhukhan and Another Vs. Omiyo Prosad Mullick and Others, rightly held that the burden is on the defendants to prove that they
are bona fide purchasers for valuable consideration without notice of the previous agreement between the plaintiff and the first defendant. As rightly
observed by the first appellate court this Court on 1993 LW 186 held that ""It is one of the recognised canons of jurisprudence and an accepted
principle that ordinarily when a party claims exemption from a general provision of law, the onus lies upon him to prove that he comes within the
exception Section 19(b) of the Specific Relief Act which lays down a general rule that the original contract may be specifically enforced against a
subsequent trnaferee, but allows an exception to that general rule not to eh transferor but to the transferee, and, therefore, it is clearly for the
transferee to establish the circumstances which would allow him to retain the benefit of the transfer which prima facie he had no right to get. Thus, it
is clear that the onus is upon the subsequent purchaser to prove that he is a transferee for value who had paid his money in good faith and without
notice of the earlier contract so as to bring himself within the exception provided under Clause (b) of Section 19"".
In this case P.W.1 has deposed that the first defendant had endorsed on Ex. A. 1 for receipt of Rs. 500/= on 21.9.1982 and only on receipt
of the reply to his lawyers notice, he came to know that the first defendant had sold the suit properties to the defendants 2 to 5. The first appellate
court also after referring to the cross examination of D.W.1 and D.W.2 came to the conclusion that the guardian and mother of the defendants 2 to
5 know about the previous agreement Ex.A.1 before execution of Ex.B.1 sale deed. The first appellate court after analysing the evidence of the
parties held that certainly there were discussions between the defendants and the first defendant about the previous agreement with the plaintiff.
The most important aspect to presume so is that the said Krishnan who put his signatures as a witness in Ex.A.1 has also put his signature as a first
witness in Ex.B.1 as well which goes to show that he would have necessarily told the defendants about the previous agreement, Ex.A.1 which is
subsisting on the date of executing Ex.B.1, sale deed.
The first appellate court also held that in remote villages, where the population is very meager, the residents of the villages by hearsaying would
normally know about the transactions that are taking place in their villages and will be eager to know who is selling and who is buying such
properties. Thus taking into consideration of the overall circumstances of the case, the first appellate court rightly came to the conclusion that the
sale by the first defendant to the defendants 2 to 5 is not bone fide one without notice of the previous suit agreement Ex.A.1 and therefore the
plaintiff is entitled to the relief of specific performance. Accordingly both the questions of law are answered against the appellants.
For the reasons stated above, the Second Appeal is dismissed confirming the judgment and decree of the first appellate court. No costs.