JUDGMENT
P.K. Shamsuddin, J.
1. 2nd defendant in O.S. No. 9 of 1982 on the file of the Sub Court, Kozhikode is the appellant. The suit was for specific performance of an agreement of sale.
2. The plaint schedule property is a shop building. As per an agreement Ext. A1 dated 27-10-1981, between the plaintiff and 1st defendant, 1st defendant agreed to sell the property to the plaintiff for a consideration of Rs. 24,000/-. A sum of Rs. 7,000/- was paid as advance on the date of agreement. It was also agreed that the sale deed would be executed and registered within six months. Plaintiff was already in possession of the shop room in the ground floor as a lessee. After the agreement, the 1st defendant made negotiations with the 2nd defendant for sale of the plaint schedule property. When the plaintiff came to know about this, he filed O.S. No. 601 of 1981 before the Munsiffs Court, Kozhikode-II for an injunction, restraining the 1st defendant from selling the property to any other person. A temporary order of injunction was passed by the Munsiffs Court restraining alienation of the property or transfer of possession to others. 1st defendant evaded service of the injunction order and the Court ordered for service of injunction order by affixture. Thereafter, plaintiff came to know that the 1st defendant executed a sale deed transferring the plaint schedule property to the 2nd defendant after the injunction order was passed by the Munsiffs Court. The 2nd defendant is a neighbour and had knowledge about the agreement between the plaintiff and 1st defendant. When the 2nd defendant approached the plaintiff and made enquiries about the plaintiffs right in the plaint schedule property during the first week of December, 1981, plaintiff told the 2nd defendant about the agreement between plaintiff and 1st defendant and also the injunction order passed by the Munsiffs Court. The sale deed is the outcome of a collusion between defendants. Plaintiff was and is still ready to perform his part of the
contract by paying the balance of consideration and get the sale deed executed. In the plaint in O.S. No. 601 of 1981 also, plaintiff expressed his readiness. After the filing of O.S. No. 601 of 1981, plaintiff received a registered notice caused to be sent by the 1st defendant which contained false allegations and the plaintiff sent a suitable reply to this. The allegations in the notice that the advance was not actually paid and the plaintiff committed breach of contract are absolutely incorrect. The period fixed in the agreement was to expire only on 27-4-1982 and the 1st defendant committed breach of contract by executing the sale deed in favour of 2nd defendant before the expiry of the period. The allegation that the shop room in the ground floor was not put in possession of the plaintiff is not true. 2nd defendant, being a transferee subsequent to the agreement between the plaintiff and 1st defendant was not entitled to any protection and the plaintiff was entitled to a decree for specific performance or payment of balance of consideration of Rupees 17,000/-. This is in short the plaintiffs case.
3. Defendants 1 and 2 filed separate written statements. 1st defendant admitted the execution of Ext. A1 agreement, but contended that the plaintiff had no funds to pay the advance and it was believing the representation of one Kurungottungal Apputty, a friend of the plaintiff and Nambidiveetil Kunhan Nair, plaintiffs litigation agent, that Rs. 7,000/- would be given in the evening, that he signed the agreement, but the plaintiff did not pay the advance amount and he did not give the key of the room to plaintiff. Plaintiff was intimated about his breach of contract and the cancellation of agreement by a notice dated 1-12-1981, but he evaded the service of notice till 7-12-1981 and trespassed into one room. Ist defendant complained to the police about the trespass. He sold the plaint schedule property to 2nd defendant on 14-12-81 for valuable consideration. The Ist defendant came to know of the institution of the suit in O.S. No. 601 of 1981 only on 17-12-1981, when the summons was served on him and no notice of injunction order was received by him. The allegation of service by affixture on his dwelling was also denied. It was also
averred in the written statement that the plaintiff’s averment that he was ready to perform the contract has no value at all as he was prepared to execute the sale deed only on payment of Rs. 17,000/-. Since plaintiff had not paid the advance amount of Rs. 7,000/-, he was not entitled to get the sale deed executed on payment of Rs. 17,000/-. The agreement is not valid. The allegation regarding collusion between the defendants was also denied.
4. In the written statement filed by the 2nd defendant, he stated that the averment relating to agreement in the plaint between the plaintiff and 1st defendant was not true and it was brought about by the plaintiff and 1st defendant collusively consequent upon the difference of opinion, which cropped up between the 1st defendant and 2nd defendant in the matter of sale of the plaint schedule property. The plaintiff, who had tenancy right over the downstair portion of the building surrendered the said tenancy right to the 1st defendant who was the owner of the building under a registered document executed by the plaintiff on 22-10-1981. The 1st defendant was put in actual possession of that portion of the building in pursuance of the said surrender and the 1st defendant entered into an agreement with the 2nd defendant to sell the plaint schedule property to him for sum of Rs. 24,000/-. The 1st defendant appeared to have a re-thinking in the matter after entering into an agreement with the 2nd defendant and the 1st defendant wanted the 2nd defendant to pay a higher price. The 2nd defendant was not willing and therefore the 1st defendant colluded with the plaintiff and the agreement was an outcome of the collusion. He also averred that even assuming that the agreement was valid, he was never aware of the agreement before the purchase of the property and he Was a bona fide purchaser for valuable consideration. He got possession of the property and he inducted the Muslim League Committee, Perumanna as tenant in respect of the upstair portion on a rental arrangement and locked the other two rooms. While the 2nd defendant was away in connection with his employment as a lorry driver, plaintiff trespassed into the property under the cover
of an ex parte interim injunction order passed in the suit. The 2nd defendant was also not aware of the suit O.S. No. 601 of 1981, The allegation of collusion between the 1st defendant and 2nd defendant was false. The plaintiff was not a solvent person and he had not at any time the requisite funds to pay the consideration and the suit was liable to be dismissed.
5. On a consideration of oral and documentary evidence in the case, the Court below came to the conclusion that it was the 1st defendant who committed breach of contract, that the 2nd defendant was not a bona fide purchaser and that the plaintiff was ready and willing to perform his part of the agreement and in that view of the matter, passed a decree directing the defendants to execute the sale deed in favour of the plaintiff in respect of the plaint schedule property on receipt of Rs. 17,000/- from the plaintiff within one month from the date of decree. The court below also made a direction that on failure to execute the document, the plaintiff was entitled to get the sale deed executed through the Court at the cost of the defendants on his depositing Rs. 17,000/- in the Court.
6. 1st defendant has not filed any appeal. In this appeal, learned counsel for the appellant/second defendant attacked the findings of the Court below. Learned counsel raised four contentions, namely, (1) There was no payment of advance and there was no valid agreement. (2) There is no pleading in terms of Section 16 of the Specific Relief Act; (3) There was no plea that the plaintiff applied for execution of the document and therefore the suit was not maintainable; and (4) Ext. B2 surrender deed executed by the plaintiff in favour of 1st defendant would indicate that plaintiff surrendered the shop building and that document would go a long way to support the contention of 2nd defendant that he was a bona fide purchaser. According to learned counsel, the circumstances emanating from the evidence would indicate that there was collusion between the plaintiff and 1st defendant to defeat the 2nd defendant.
7. Learned counsel for the appellant submitted that though there is a recital in
Fxt. A1 that Rs. 7,000/- was paid as advancee on the date of agreement and the southern room was put into the possession of the plaintiff, really no advance was paid by the plaintiff and the plaintiff was also not put in possession of the property. 1st defendant has not gone to the witness box to substantiate this contention. In Ext. A1, there is recital that advance was paid by the plaintiff to the 1st defendant and the 1st defendant put the plaintiff into possession of the southern room. Plaintiff who was examined as P. W. 1 has given evidence in support of his contention that an amount of Rs. 7,000/- was paid as advance. P.W. 2 is none other than the elder brother of I st defendant. He deposed that the plaint schedule property was allotted in a partition between himself and 1st defendant to the share of the 1st defendant, that Ext. A1 agreement was executed by plaintiff and 1st defendant and they signed the document and that he saw the plaintiff paying Rs. 7,000/-an advance. It has not been shown that P.W. 2 had any axe to grind against his own brother, the 1st defendant. P.W. 2 was not cross-examined by the counsel for the 1st defendant, though he was cross-examined by the counsel for 2nd defendant. Nothing has been elicited to cast doubt on the veracity of the testimony of P.W. 2 and his evidence appeared to be truthful. P.W. 3 also gave evidence that he saw the plaintiff giving Rs. 7,000/- to the 1st defendant as advance. Similarly, P.W, 4, who is the 2nd attestor to Ext.A1, also stated that he saw the plaintiff and 1st defendant signing Ext. A1 and the plaintiff paying Rs. 7,000/- to the 1st defendant as advance. The evidence of P.Ws. 3 and 4 also appeared to be highly probable. In the circumstances, I have no hesitation to hold that the plaintiff paid an advance of Rs. 7,000/- at the time of execution of Ext. Al agreement and that the agreement was valid.
8. The next contention raised is that there is no pleadings in terms of Section 16 of the Sepcific Relief Act. Learned counsel for the appellant contended that Clause (c) of Section 16 provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the
essential terms of the contract which are to be performed by him. Learned counsel submitted that there is no pleading of willingness and readiness in terms of Section 16 of the Specific Relief Act. Learned counsel also placed before me the decisions of the Supreme Court in Abdul Khader Rowther v. P. K. Sara Bai (1989) 4 SCC 313 : (AIR 1990 SC 682) and Ouseph Varghese v. Joseph Aley (1969) 2 SCC 539. In both these decisions, the Supreme Court observed that the pleading should conform to Section 16(c) of Specific Relief Act and the requirement in Forms 47 and 48 of Ist Schedule in Civil P.C. and that it is necessary for the plaintiff to aver that he applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. Learned counsel also placed before me the decision of the Delhi High Court in Smt. Raj Rani Bhasin v. S. Kartar Singh Metha, AIR 1975 Delhi 137 and based on that decision, contended that there is a distinction between readiness to perform the contract and willingness to perform the contract and that the plea that plaintiff has been and is ready to perform the contract will not satisfy the requirement of law. The decision also said that while by readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial ability to pay the purchase price but for determining his willigness to perform his part of the contract, his conduct has to be properly scrutinised.
9. It is settled law that there should be pleadings in the plaint in terms of Section 16(c) of Specific Relief Act and Forms 47 and 48 of First Schedule in C.P.C. Learned counsel for respondents submitted that in the instant case, there is substantial compliance with Section 16 of the Specific Relief Act and Forms 47 and 48 of First Schedule in the Civil P.C. and therefore the suit is not bad for want of necessary plea of willingness and readiness to perform the contract. Learned counsel invited my attention to para 7 of the plaint, where the plaintiff averred thus:
“Ever since the execution of the agreement the plaintiff has been ready to perform his part of the contract. Even now he is ready
to pay the balance sale price and get the sale deed executed. In the plaint in O.S. No. 601 of 1981 the plaintiff has expressed his readiness to perform the contract.”
In para 9 of the plaint also, plaintiff averred thus:
“The plaintiff who has been and is always ready to perform the contract is entitled to have the sale deed executed by the defendants in his favour.”
The expression ‘willing’ has not been used in the pleading and what is averred is that the plaintiff has been and is always ready to perform his part of the contract and get the sale deed executed. The question that has to be considred is the failure to use the expression ‘willingness’ should result in dismissal of the suit by reason of non-compliance with the provisions of Section 16 read with Forms 47 and 48 of First Schedule of C.P.C. Paras 2 and 3 of Form No. 47 reads as follows :–
“2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part, to which the defendant has had notice.”
Paras 2, 4 and 5 of Form No. 48 reads as follows:–
“2. On the day of ,19 , the plaintiff tendered rupees to the defendant and demanded a transfer of the said property by sufficient instrument.
3. …….
4. The defendant has not executed any instruction of transfer.
5. The plaintiff is still ready and willing to pay the purchase money of the said property to the defendant.”
10. Learned counsel for the respondents submitted that in the plaint filed in the connected suit O.S. No. 601 of 1981, there is an averment that the plaintiff has been and is even now willing and ready to perform his
contract. However, the connected suit is not before me and it would not be proper on my part to rely on the pleading in that case, which was filed by the plaintiff seeking issue of injunction restraining the 1st defendant from alienating the property. It falls for consideration whether there is a substantial compliance with the requirements of Section 16(c) of Specific Relief Act and Forms 47 and 48 of First Schedule in Civil P.C. If the answer is yes, then the further question is whether substantial compliance with requirements of these provisions is sufficient to enable the plaintiff to get a decree for specific performance.
11. Chambers 20th Century Dictionary given the following meaning to the word ‘ready’: –
“Prepared; dressed, attired; willing; inclined; liable; dextrous; prompt; quick; handy; at hand; immediately available; direct…..”
In Webster’s II New Riverside University Dictionary, the meaning given to ‘ready’ are as follows :–
“1. Prepared or available for service or action.
2. Mentally disposed.
3. Liable or about to do something,
4. Prompt in apprehending or reacting.
5. Available……..”
In other dictionaries also, more or less the
same meaning is given.
12. Learned counsel for the respondents contended that a plain reading of the pleadings in the plaint ‘referred to above would show that in substance, plaintiff has averred that he has been and is willing and ready to perform his part of contract though the expression ‘willing’ has not been used in the pleading. In this connection, learned counsel has cited before me the decision of this Court in Mani Amma v. Kololichalil Chovi, 1985 Ker LJ 246, which also arose in a suit for specific performance, Dealing with the question of pleading, my learned brother Varghese Kalliath, J. observed as follows :–
“I think a strict compliance of the rules in C.P.C. is not demanded in all cases, substantial compliance with the rule alone can be insisted. I have to remember that procedural law is always intended to facilitate the course of substantive justice. It should not obstruct the course of real justice. The issue is limited to the point whether the plaintiffs have averred in the plaint that they were/are ready and willing to do their part. The counsel for the respondent relied on Forms 57/45 in Appendix A to the C.P.C. These forms have to be understood with the provisions in Rule 3 of Order 6, C.P.C. which says that the forms in Appendix A when applicable as nearly as may be, shall be used for all pleadings. A liberality of construction is explicit from the language used — as nearly as may be on provided the substance remains fulfilled. The substantive provision incorporated in Section 16(c) of the Specific Relief Act does not prescribe or insist a particular set of words to be employed to satisfy the requirements under Section 16(c)of the Specific Relief Act.”
In the above decision, learned Judge relied on the observation of Vivian Bose, J. in Kedar Lal Seal v. Hari Lal Seal, AIR 1952 SC 47 and held that the Court would be slow to throw out a claim on a mere technicality of pleading when the substance of the controversy and the statutory requirements are revealed from the averments in the plaint and no prejudice is caused to the opposite side, however, clumsily or inartistically the plaint may be worded, Learned Judge also quoted the following passage from the decision in Cord v. Amergate etc. Railway Co. (1851) 117 ER 1229 (1236): 17 QB 127:–
“In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete if it had not been renounced by the defendant.”
Learned Judge also placed reliance on the following observations of Lord Halsbury in delivering the opinion of the Privy Council in Sayad Mohammed v. Fateh Mohammed (1894 ILR 22 Cal 324):
“Whatever system of pleading may exist, the sole object of it is that each side may be fully alive to the question that are to be argued in order that they may have an opportunity of bringing forward such evidence as may be appropriate to the issue.”
I am in respectful agreement with the view expressed by brother Varghese Kalliath. J. that the averments in a plaint should be read as an indivisible whole to understand the correct meaning and scope of the averments, that the pleadings should not be dissected and accepted in part and rejected in the remainder, but they must be taken as a whole, that pleadings should not be construed in a pedantic manner and that pleadings have to be interpreted not with formalistic rigour but with softness. Further, Order 6, Rule 3 says that forms in Appendix A when applicable, as nearly as may be, shall be used for all pleadings.
13. In this connection, it may be recalled that Ext. A1 agreement was executed on 27-10-81 and the period fixed for completion of the contract was six months from 27-10-81. Plaintiff had time till 26-4-82 for payment of balance of consideration and get the document executed in his favour on payment of balance of Rs. 17,000/-. I have already held that the contention of the 1st defendant that the advance of Rs. 7,000/ – was not paid on the date of agreement is not true, I find that long before the expiry of the period, Ist defendant sent a notice through a lawyer to the plaintiff stating that the advance was not paid by the plaintiff on the date of agreement, that therefore the key of the southern room was also not entrusted to the plaintiff and that since the plaintiff committed breach of contract, the contract was cancelled. It was also stated therein that at the time of execution of release deed, he had agreed to remove all the belongings of the plaintiff, but an almirah was not removed and therefore he should remove the almirah. It was also indicated therein that if the 1st defendant was not able to realise proper consideration in alienating the property by reason of conduct of the plaintiff, the plainitff would be liable to make good the loss sustained by the 1st defendant. Ext. A7 is the
notice sent by the 1st defendant. In this notice, 1st defendant has made it abundantly clear that he was not prepared to complete the transaction and he cancelled the contract in favour of the plaintiff and that he was bent upon to sell the property to another. On receipt of Ext. A7, plaintiff sent Ext. A10 notice, wherein it was categorically stated that the advance was paid, that the 1st defendant permitted the plaintiff to continue his business in the ground-floor and accordingly, he was continuing his business in the same room. It was also pointed out that the key was always with the plainitff and that it was using the same key that he was opening the shop room. It was further stated that the piece-goods were still in the shop room and he was still continuing the business there, that there was no necessity to remove his belongings and that the 1st defendant had no right to cancel the contract and the cancellation was invalid. It was also pointed out that he had already filed a suit for an injunction, restraining the plaintff from alienating the property and from putting the building into the possession of strangers, that he was prepared to pay the balance of consideration within the stipulated period of six months and that the 1st defendant may be advised to perform the contract. Ext. A10 dated 23-12-81 is the reply sent by the plaintiff. Plaintiff came to know that the 1st defendant was negotiating to transfer the property and accordingly he filed O.S. No. 601 of 1981 before the Munsiffs Court, Kozhikode-II seeking issue of an injunction, restraining the 1st defendant from selling the plaint schedule property to anybody other than the plaintiff. That was renumbered as O.S. No. 437 of 1982 in the lower Court and tried along with O.S. No. 9 of 1982, out of which this appeal arise. In the plaint in that case also, the plaintiff alleged that the 1st defendant had executed an agreement in favour of the plaintiff on 21-10-81 agreeing to sell the plaint schedule property to the plaintiff for a sum of Rs. 24,000/-and received an amount of Rs. 7,000/-, that the 1st defendant was planning to sell the properties to others disregarding the suit agreement and that the 1st defendant had no right to sell the property to any person other
than the plaintiff. In the written statement, the defendant contended that the plaintiff did not pay a sum of Rs. 7,000/- and the agreement automatically ceased to exist and that as per the sale deed dated 14-12-1981, he sold the property to the 2nd defendant for valuable consideration and that therefore the suit for injunction, restraining the 1st defendant was not maintainable.
14. Foregoing discussion would show that the 1st defendant committed breach of contract by executing a sale deed in favour of the 2nd defendant on 14-12-1981 long before the expiry of the period stipulated in the agreement for completion of the contract. The conduct of the plaintiff in filing the injunction suit immediately when he came to know of the sinister motive of the 2nd defendant would show that the plaintiff was always willing and ready to perform his part of the contract and it was the defendant who committed breach of trust. It is also significant to note that an order of injunction was passed by the Munisffs Court in O.S. No. 601 of 1981 on 5-12-1981 and the 1st defendant successfully evaded the service of notice and executed the sale deed to favour of the plaintiff (2nd defendant) on 14-12-1981. The sale deed was executed after the order of injunction was passed by the Court and the circumstances would clearly indicate that the 1st defendant had knowledge of the injunction order issued by the Court. In para 12 of the judgment of the lower court, it has quoted the averment in O.S. No. 601 of 1981, which reads as follows :–
“The plaintiff is ready and willing to perform the contract under the agreed time.”
In my view, the averments contained in paragraphs 7 and 9 of the plaint substantially conforms to the requirements of pleading contemplated under Section 16(c) of the Specific Relief Act and Forms 47 and 48 of First Schedule in Civil P.C., and that satisfies requirements of law.
15. It was next contended by the learned counsel for appellant that the plaintiff has not applied for completion of the contract. As indicated above, long prior to the date fixed
for completion of the contract. 2nd defendant transferred the property in favour of 1st defendant. In the notice, evidence by Ext. A10, plaintiff has alleged that he was ready to perform his part of the contract and requested the counsel, who issued Ext. A7 notice on behalf of 1st defendant, to advise his client to register the document on receipt of balance of consideration within the period stipulated in the document. I have referred to Ext. A7, where the 1st defendant clearly stated that he cancelled the contract and that he was not prepared to execute and register the document in favour of plaintiff. It was also clear from Ext. A7 that he was taking steps to alienate the property to another person. Ultimately, the property was sold to 2nd defendant on 14-12-1981. In these circumstances, it cannot be said that the suit was bad for want of averment that the plaintiff applied for execution of the document.
16. The next contention raised by the learned counsel for the appellant is that the appellant is a bona fide purchaser for valuable consideration and so, no decree for specific performance can be granted in favour of the plaintiff. Section 19 deals with relief against parties and persons claiming under them by subsequent title. Clause (b) of Section 19 of Specific Relief Act lays down that specific performance of a contract may be enforced against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Learned counsel for the appellant contended that the 2nd defendant would fall within the exception contained in Clause (b) of Section 19 inasmuch as he is a transferee for value and has paid money in good faith and without notice of the original contract. Learned counsel for the appellant relied on Ext. B2, registered surrender deed executed by the plaintiff in favour of the 1st defendant prior to Ext. A1 agreement, in support of his plea that the 2nd defendant is a transferee for value who has paid money in good faith and without notice of the original contract.
17. A Division Bench of this Court had occasion to consider the scope of Clause (b) of
Section 19 in Balakrishnan v. Kunjikrishnan, 1981 Ker LT 463: (AIR 1982 NOC 18). It held that the burden of showing that the purchase was bona fide and without notice of the existing agreement for sale of a property is on the subsequent purchaser and that the Court would be obliged to assess the overall weight of the evidence in the case. In the course of the judgment, this Court observed :
“A transferee of immovable property normally obtains whatever rights a transferor has and if there is an encumbrance on the property conveyed to the transferee that passes with the property. The transferee does not get any better title than that of the transferor in regard to the burden of such encumbrance. This is so even with regard to an obligation annexed to ownership of land. The exception to this rule is to be found in Section 19 of the Specific Relief Act, 1963. Sub-clause (b) of Section 19 provides that, except as otherwise provided by Chapter II specific performance of a contract may be enforced also against any person other than a party thereto claiming under the party by a title arising subsequent to the contract. But this is subject to the exception that it cannot be so enforced against a transferee for value who has paid his money in good faith and without notice of the original contract. Enforcement of a contract for sale of immovable property is the enforcement of an obligation annexed to ownership of property as the Supreme Court observed in Bai Dosabai v. Mathurdas, AIR 1980 SC 1334… ……. This obligation
annexed to ownership is liable to be enforced against a transferee with notice as Section 19(b) of the Specific Relief Act, 1963 and Section 91 of the Trusts Act, 1882 indicate. Chapter IX of the Trusts Act deals with obligations in the nature of Trusts. Section 91 is one such obligation and that provides that where a person acquires property with notice that another person has entered into an existing contract affecting the property in respect of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract. It does not in terms create a trust but only creates an obligation which has the characteristics of a trust. But Section 96 of the
Trusts Act is a saving provision which operates to save the rights of a transferee in good faith for consideration from the provisions of Chapter IX. Irrespective of whether a person acquiring a property in respect of which specific performance could be enforced is under an obligation to hold the property for the benefit of a party td an agreement for sale in regard to that property, the provisions in Section 91 will not operate in case it is shown that the rights sought to be impaired are that of a transferee in good faith for consideration. Hence if a property has been acquired by a person with notice of the existence of a previous agreement for sale he holds the property for the benefit, of the person who is entitled to enforce the contract unless he is a transferee in good faith for consideration. If property in the hands of a transferee who had notice of the obligation under an earlier agreement for sale is purchased by a person in good faith for consideration, Section 91 will not operate against such person as he will be saved by Section 96 of the Trusts Act. The obligation to hold for the benefit of another contemplated in Section 91 of the Trusts Act will operate in regard to a person who came into possession by a purchase with notice of the contract of sale, but not a person who came into possession subsequently without such notice. In the hands of the person holding the property with notice the obligation will exist but the obligation wilt not operate in the hands of a person who has no such notice.”
18. It has to be examined whether the 2nd defendant has discharged his burden of proving that he is a bona fide purchaser who paid consideration in good faith and without notice of the previous agreement. I have already referred to the contention raised by the 2nd defendant in regard to the agreement evidenced by Ext. A1. In his written statement, he averred that Ext. A1 was collusively brought about the plaintiff and the 1st defendant consequence upon the difference of opinion, which cropped up between the 2nd defendant and the 1st defendant in the matter of sale of the plaint schedule property. There is absolutely no material to substantiate this contention. On the other hand, the available material would only indicate that there was
no agreement between the 1st defendant and 2nd defendant for sale of the property to the 2nd defendant. No deed of agreement is produced. Nor has the 2nd defendant succeeded in proving that there was any oral agreement. The conduct of the 1st defendant in supporting the 2nd defendant would only justify the inference that in all probability the 2nd defendant must have been well aware of the agreement between plaintiff and 1st defendant. Learned counsel for the appellant placed great reliance on Ext, B2 surrender deed executed by the plaintiff in favour of the 1st defendant. According to the counsel, this led the 2nd defendant to believe that the plaintiff surrendered the rooms in his possession to enable the 1st defendant to sell the property. However, it was admitted that the plaintff was in possession of the downstair portion of the building even after Ext. B2. Even in the notice Ext. A7 issued by the 1st defendant, it is stated that the plaintiff had left his almirah in the room. It is the plaintiffs case that the 1st defendant insisted that a surrender deed should be executed before the execution of Ext. A1 agreement and that though surrender deed was executed, he continued to be in possession. In any event, the evidence in the case clearly indicates that subsequent to Ext. A1 agreement, plaintiff was in possession. Ext. A1 recites that the plaintiff was put in possession of the downstair portion of the buildings. The 1st defendant contended that really the plaintiff was not put in possession, though Ext. A1 recites that possession was made over. According to him, that was because advance was not paid by the plaintiff. It is his case that the plaintiff reduced building into possession subsequently taking advantage of injunction order in O.S. No. 601 of 1981. I have already found that the plea of non-payment of advance is not true. There is absolutely no evidence to show that the plaintiff trespassed and reduced the building into his possession after the injunction order. D.W. 2 claimed that he was the preson who arranged the sale in favour of the 2nd defendant. He gave evidence that both rooms were in the possession of the plaintiff and he cannot say how he came into possession of these rooms. Ext. B1 is the sale
deed executed in favour of 2nd defendant. There is a recital therein that the building and the land transferred thereunder were given in possession of the 2nd defendant. However, D. W. 2 admitted that no possession was given to the 2nd defendant. His version in the chief examination was that possession was given on 15-12-1981. Though the 2nd defendant contended that the upstair portion was put in the possession of Muslim League Committee by him, no evidence was adduced to substantiate the contention on the pretext that the Muslim League Committee subsequently vacated the building. The plaintiff was in occupation of the downstair portion as a tenant for the last several years and he was doing business in piece-goods. The house of 2nd defendant is situated nearby and it can be legitimately assumed that 2nd defendant had seen the plaintiff doing business at the downstair portion of the building at the time when the sale deed was executed.
19. In Ram Bilas Ojha v. Bishwa Muni, AIR 1978 SC 1094 the Supreme Court had occasion to consider the plea of bona fide purchase. In that case, the plaintiffs/prior purchasers filed a suit for specific performance and they were already in possession of the suit property in pursuance of registered usufructuary mortgage in their favour. The subsequent purchasers raised the plea that they were bona fide purchasers without notice as the sale deed in their favour was made on the next day of executing the sale deed in favour of prior prchasers and hence they had no opportunity to know the prior transaction. Further, it was pleaded that immediately after execution of the deed, they entered into possession and that the prior purchasers were never in possession. The Supreme Court held that in view of the false plea taken by the subsequent purchasers that they were in possession, it could not be said that they were bona fide purchasers without notice.
20. Foregoing discussion would show that there is no substance in the contention raised by the counsel for the appellant that the 2nd defendant is entitled to protection of execution contained in Section 19(b) of Specific Relief Act.
There is no merit in the appeal and it is accordingly dismissed. However, there will be no order as to costs.