JUDGMENT
1. The plaintiffs-appellants instituted Suit No. 192 of 1976 for specific performance of the registered agreement for sale dated 6th April, 1976 executed by the defendant No. 1 agreeing thereby to sell to the plaintiffs the subject property belonging to defendant No. 1 at and for a total consideration of Rs. 12,000/-, of which a sum of Rs. 2,000/- had already been paid and another sum of Rs. 7,500/- paid at the time of execution of the said agreement. The agreement provided that on 31st May, 1997 the plaintiffs shall pay to the defendant No. 1 the remaining consideration of Rs. 2,500/-; whereupon the defendant No. 1 shall convey the property in question by executing a registered instrument of conveyance.
2. On 21t June, 1976 the defendant No. 1 sold half of the said property to the defendant No. 2, who happens to be a step brother of defendant No. 1, for a consideration of Rs. 2,000/- only.
3. In the suit, the plaintiffs prayed for relief of specific performance against the defendant No. 1 and conveyance by both the defendants.
4. In the written statement filed by defendant No. 1, he contended that, in fact, the consideration agreed to be paid by the plaintiffs was Rs. 22,000/- and not Rs. 12,000/-, as was recorded in the said agreement, and since the plaintiffs failed to pay the said sum of Rs. 10,000/-, in order to over come the then immediate financial need of the defendant No. 1, he sold half of the property to the defendant No. 2 as and by way of a benami transaction with an understanding that upon returning the money by the defendant No. 1 the defendant No. 2 shall reconvey the property thus sold.
5. The defendant No. 2 in his written statement contended that he is a bona fide purchaser of the property purchased by him, i.e., half of the property in question, without any notice or knowledge of the agreement, specific performance whereof was being sought for in the suit. It was stated that the property in question was purchased on 25th May, 1974 at a price of Rs. 500/-only and in 1976 the value of the property could not be Rs. 12,000/- as was alleged in the plaint.
6. At the trial the defendant No. 1 could not prove that the consideration agreed was Rs. 22,000/- and not Rs. 12.000/-. It came on records of the trial Court that the property in question was purchased on 25th May, 1974 by five brothers, including the defendants No. 1 and 2, at and for a consideration of Rs. 500/- and thereupon on 2nd July, 1974 there was a partition in between those five brothers, when the said property was allotted to the defendant No. 1 to the exclusion of other brothers. The deed of partition, which was brought on record of the trial Court, shows that the same is dated 2nd July, 1974 and therein the value of the property in question was shown as Rs. 1,000/-. While the defendant No. 2 deposed he accepted the contention of defendant No. 1 that he had agreed to reconvey half of the property in question purchased by him to the defendant No. 1 upon the said defendant returning to him the consideration paid.
7. As the plaitniffs led evidence to suggest that defendant No. 2 had full knowledge of the transaction contemplated by and under the said agreement for sale, evidene was led by defendant No. 2 to suggest that he had no knowledge thereof. The partition deed, which was brought on record of the trial Court, suggested that if any of the parties to the said partition deed desires to transfer any of the properties received by any of them thereunder, he shall give notice of such intended transfer to the other parties to the said deed of partition.
8. Upon consideration of the evidence on record and the arguments advanced by the parties, the trial Court decreed the suit and held that the defendant No. 2 was not a bona fide purchaser without notice.
9. On appeal by the defendant No. 2 the first appellate Court reversed the findings of the trial Court and set aside the judgment and decree rendered by the trial Court on the ground that the evidence did not establish that the defendant No. 2 had notice of the transaction contemplated by and under the agreement for sale.
10. Before us, the plaintiff has contended that even assuming there is no conclusive evidence of the fact that notice of the intended transaction was given, but still then, in law, it must be deemed that the notice thereof was given aliunde inasmuch as the agreement for sale is a registered instrument and, accordingly, it must be deemed that the public had knowledge of the said agreement.
11. In addition to that it was submitted by the plaintiffs-appellants that in any event on the evidence, as have been brought on record, under no circumstances it can be said that the defendant No. 2 was a bona fide purchaser. It was contended that the agreement proposed to pay a price of Rs. 12,000/- for the property in question on 6th April, 1976, of which on or before 6th April, 1976 a sum of Rs. 9,500/- had been paid. In such circumstances, the half of the property could not be sold bona fide at and for a sum of Rs. 2,000/- and that too upon an agreement that the same would be re-conveyed upon receiving back the consideration money.
12. The learned Counsel for the defendant No. 2 suggested that the property, which was purchased on 25th May, 1974 at Rs. 500/-, could only be Rs. 4,000/- as on the date half of the same was purchased by the defendant No. 2. It was stated by him that in the written statement filed by the defendant No. 2 he had not stated that he had agreed to re-convey the property to defendnat No. 1 upon receiving back the consideration paid by him and, accordingly, evidence given by him to the effect that upon return of consideration he would re-convey the property to defendant No. 1 cannot be looked upon on the principle that no amount of evidence can be looked upon in the absence of pleadings. As regards the notice, the learned Counsel for the defendant No. 2 submitted that, in fact, no notice of the agreement for sale was given to the defendant N. 2 despite the defendant No. 1 being obliged under the deed of partition to give notice of intended sale of any of the properties received by him under the said deed of partition to all the brothers including his client.
13. The fact remains that the agreement for sale was registered. By reason of registration of the agreement for sale, the notice of sale intended thereby was brought to the notice of the public including the defendant No. 2. The defendant No. 2 thus came to know that for the consideration mentioned in the agreement, the defendant No. 1 intends to sell in future the property in question to the plaintiffs and that the transaction would be completed by 31st May, 1977.
14. Furthermore, the defendant No. 1 in no uncertain terms pleaded in his written statement that the defendant No. 2 has agreed to re-convey the property upon return of the consideration paid by him. There was, therefore, a plea to that effect in writing in the pleadings filed by the parties and, accordingly, any evidence given by any witness appearing at the trial of the suit to that effect cannot be said to be an evidence without pleadings.
15. In consequence of what has been discussed above, the facts, as have emerged, are that by a registered agreement for sale executed on 6th April, 1976 the defendant No. 1 at and for a consideration of Rs. 12,000/- proposed to sell the property in question to the plaintiffs and also proposed to complete the transaction on or before 31 st May, 1977. Subsequent thereto the defendant No. 1 changed his mind and, accordingly, brought in his step brother, defendant No. 2, and purported to sell half of the property on 21st June, 1976 at a meagre consideration of Rs. 2,000/-. The fact remains that the property in question was purchased at Rs. 500/- on 25th May, 1974 and on 2nd July, 1974, when the partition was effected, the parties to the partition deed, including the defendant No. 2, agreed that the value of the said property on the date of the said deed of partition stood enhanced to Rs. 1,000/-. If the value of the property could become double in only about one and half months’ time, the value thereof could enhance to Rs. 12,000/-as on 21st June, 1976. However, that is not important. What is important is whether the bargain was too low. Admittedly that is nobody’s case. Furthermore, the defendant No. 1 by reason of the said deed of partition was the exclusive owner of the property in question. He proposed to sell and the plaintiff proposed to purchase the same at Rs. 12,000/-. It is true that in relation thereto the defendant No. 1 was required to give notice to his brothers, including the defendant No. 2. On the basis of such notice, however, the defendant No. 2 could not purchase the property for Rs. 4,000/-, which, according to the defendant No. 2, is the correct valuation. If he wanted to purchase the property on the basis of such notice, he could only, purchase the same at or about Rs. 12,000/-. The defendant No. 2, in no uncertain terms, has supported the pleadings of defendant No. 1 that it was agreed by defendants No. 1 and 2 that the defendant No. 2 would reconvey the property upon receiving back the consideration. Therefore, he had accepted the fact, as pleaded by the defendant No. 1, that the transaction between the defendants No. 1 and 2 was a transaction to accommodate the alleged financial needs of defendant No. 1. In the circumstances, the defendant No. 2 has failed to prove, as pleaded by him, that he is a bona fide purchaser. That being the situation, we do not think that the first appellate Court was justified in interfering with the judgment and decree dated 29th July, 1978 passed in Title Suit No. 192 of 1976 by the Subordinate Judge, Bhagalpur.
16. In the circumstances, the appeal is allowed. The judgment and decree under appeal is set aside and the judgment and decree dated 29th July, 1978 passed by the trial Court is restored. There shall be no order as to costs.