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Rajan And Ors., Etc. vs Yunuskutty And Ors. on 2 April, 2002

Kerala High Court
Rajan And Ors., Etc. vs Yunuskutty And Ors. on 2 April, 2002
Author: R Bhaskaran
Bench: S Sankarasubban, R Bhaskaran


JUDGMENT

R. Bhaskaran, J.

1. These appeals are directed against the judgment and decree in a suit for specific performance of an agreement for sale. Defendants 1 to 3 In O.S. 87/ 84 have filed A.S. 535/1990 and defendants 4 to 6 have filed A.S. No. 346/1990. The trial Court decree the suit for specific performance with mesne profits and subject to the right of the mother of defendants 3 to 3 for payment of amounts due to her life interest.

2. The plaintiff allegations are as follows:

The plaint schedule property belongs to defendants 1 to 3. The plaintiff and first defendant had negotiated for sale of the same and for that purpose the plaintiff along with Ramachandran Pillai and Razak Kunju Musaliar went to the residence of defendants at Kalamassery on 9-11-1984. The first defendant represented that he is the power of attorney holder of defendants 2 and 3 and was entitled to negotiate and execute sale deed for and on their behalf. Draft copy of power of attorney was shown to the plaintiff. The first defendant in the presence of defendants 2 and 3 agreed to sell the plaint schedule property at a sale price of Rs. 1,100/- per cent and received Rs. 5,000/-as advance and agreed to sell the property on or before 20-12-1984 after receipt of balance sale consideration. An attested copy of the partition deed and draft copy of the Mukthyar were given to the plaintiff. The first defendant wrote on a sheet of paper his address and noted the amount of consideration received by him on that date. The piece of paper was given to the plaintiff along with the other two documents. When the plaintiff went to the house of 1st defendant with the balance consideration on 11-12-1984 defendants 1 and 2 demanded higher amount of sale consideration and were not prepared to accept the sale consideration and execute the document. Hence the suit for specific performance with a claim for mesne profits at the rate of Rs. 700/- per month. It is also stated that the plaintiff was always ready and willing to perform his part of the agreement.

3. The first defendant filed a written statement with the following averments. All

the averments in the plaint are denied. The plaint schedule property belonged to Varadan Pillai, father of defendants 1 and 3 and on his death it devolved on his mother Lekshmikutty Amma and the defendants. The property was in the possession of the second defendant under an otti assignment. The case of negotiation for sale and that the plaintiff went to the house of defendants 1 to 3 on 9-11-1984 with Ramachandran Pillai and Abdul Razak Kunju are false. The allegation that he agreed to sell the plaint schedule property to the plaintiff for Rs. 1,100/-per cent and that he received Rs. 5,000/-as advance and gave it to the second defendant are also false. The first defendant did not give any attested copy of the partition deed or draft copy of the Mukthiar as alleged in the plaint. The allegation that he wrote on a sheet of paper his address and the amount received is also false. The further allegation that the plaintiff went to the house of first defendant on 11-12-84 with the balance sale consideration is also false. It is also contended that the plaintiff is not entitled to get the document executed and the mesne profits claimed is too low and he is not entitled to any mesne profits. The defendants had already executed an agreement on 22-8-1984 to one P.N. Yohannan to sell the property at the rate of Rupees 2,900/- per cent to him or his nominee and received Rs. 5,001/- as advance. It is also contended that the plaintiff, during the end of October or beginning of November, 1984 had approached the first defendant with an offer to purchase the property. He was told that an agreement was already executed for sale of the property. A few days later the plaintiff again came to the industrial unit of the first defendant at Kalamassery and said that he was prepared to purchase the property at the rate of Rs. 3,500/- per cent but showing only Rs. 1,100/- in the deed. The first defendant refused to oblige. It is also contended that the plaintiff has procured the copy of the partition deed and draft of the mukthiar from some other sources. The piece of paper produced by the plaintiff was not given to the plaintiff by the first defendant nor was it written to be given to the plaintiff. The entries in the paper except Rs. 5,000/- and the two dates were written by the first defendant on some other occasion and discarded as waste paper. The plaintiff might have picked up the same from the

industrial unit when he came there. Rs. 5,000/- and the two dates are inserted by the plaintiff or at his instance before producing it before Court.

4. Defendants 4 to 6 were impleaded as additional defendants. Defendants 5 and 6 filed written statement contending as follows. It is stated that the negotiation and deliberation alleged in para 1 of the plaint can only be false since there was already a written agreement of sale in favour of Yohannan, the brother of the 5th defendant on behalf of defendants 5 and 6 for a higher price than what is stated to be agreed by the plaintiff on 9-11-1984. It is also contended that these defendants were never in the know of the averments in paras 1 to 3. They are cooked up stories for the purpose of the case. It is further contended that defendants 1 to 3 have already sold the property to defendants 5, 6 and the 4th defendant for valuable consideration. P.N. Yohannan, the brother of the 5th defendant negotiated with defendants 1 to 3 on behalf of defendants 5 and 6 for sale of plaint schedule property and a written agreement was executed by defendants 1 to 3 on 22-8-1984 in favour of Yohannan after receiving Rs. 5,100/- as advance. The price agreed to was Rs. 2,900/- per cent and nine months time was fixed for execution of sale deed. It is further contended that though defendants were entitled to 1.68 acres as per documents, on measurement it was found to be only 1.57 acres and as directed by Yohannan sale deed was taken for 1.36 acres on 24-4-85 in the name of the defendants 5 and 6 and for 21 cents in the name of the 4th defendant. The consideration was paid for the sale in favour of defendants 5 and 6 by demand draft. To the knowledge of defendants 5 and 6 there was no agreement for sale in favour of the plaintiff and they have purchased the property in good faith and for valuable consideration. It is also contended that after the sale deeds were executed and possession given they began to construct boundary wall and barbed wire fencing. The wall on the southern and western portion is completed. The barbed wire fencing was put on the western northern side and the barbed wire fencing on the eastern road side was repaired. The property was purchased for putting up a house for residents. It is stated that the plaintiff is not entitled for any of the reliefs prayed for in the plaint.

5. On the side of the plaintiff Exts. A-1 to A-4 were marked and PW-1 to PW-4 were examined. Defendants produced Exts. B-1 to B-7 and examined DW-1 to DW-3. After analysing the evidence, the trial Court found that the agreement set up by the plaintiff is true and that the agreement set up by the defendants is false and therefore the suit was decreed for execution of sale deed and to give possession of the property on receipt of the balance consideration of Rs. 1,79,800/-. The property is also given a decree for mesne profits of Rs. 700/- per annum from the date of deposit of the balance amount till getting possession. The right of the mother of defendants 1 to 3 to realise her life interest as provided in Ext. A-1 was reserved.

6. In A. S. 535/1990 defendants 1 to 3 contended that the finding of the trial Court with regard to oral agreement and receipt of consideration is illegal. It is contended that Lakshmi Ammal, the mother of Varathan Pillai is one of his heirs and the defendants 1 to 3 have only 3/4 share and she was not even alleged to be a party to the agreement or impleaded in the suit. It is also contended that the trial Court has gone wrong in relying on Ext. A-3 in proof of the oral agreement. The reasoning of the trial Court on comparison of the hand writing is also challenged in the appeal.

7. In A.S. 346/1990 defendants 4 to 6 who are subsequent purchasers of the property have also challenged the judgment and decree of the trial Court. It is contended that defendants 5 and 6 were not in India when they were alleged to have met DW-1 and enquired about the agreement between the plaintiff and the defendants 1 to 3. It is contended that the property is situated on the side of national highway. The property behind the plaint scheduled property which has no frontage on the national highway was sold by the defendants 1 to 3 and grandmother of defendants 1 and 3 as per Ext. A-4 on 25-1 -84 for Rs. 1,000/- per cent. Therefore it was inconceivable that the defendants 1 to 3 would have agreed to sell the property for Rs. 1.100/-in November. 1984. It is also contended that Ext. A-3 which is a piece of paper on which several matters unconnected with the transaction have been written should not have been relied on in the light of the evidence given by PW-1 him-

self. It is contended that the trial Court has missed to note serious discrepancies in the evidence of plaintiff and his witnesses before coming to a conclusion that the oral agreement set up by the plaintiff is true.

8. Before analysing the evidence on the side of the plaintiff it has to be remembered that the burden is heavy on the part of the plaintiff in the case of oral agreement to prove that there was consensus ad idem between the parties for concluded oral agreement for sale. The Supreme Court in Brij Mohan v. Smt. Sugra Begum, (1990) 3 JT (SC) 255 has stated as follows :

“We agree with the contention of the learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement.”

9. Can it be said that the vital and fundamental terms for sale of the property were concluded between the parties orally in this case? The case of the plaintiff is that the plaint schedule property belongs to defendants 1 to 3 only. Admittedly the property was owned by Varathan Pillai under Ext. A-1 partition deed. After his death, as per Hindu Succession Act his mother is a legal heir. Apart from that the partition deed itself gives the mother a life interest in the property. The plaintiff when examined as PW-1 admitted in cross-examination that he knew the person who purchased the western boundary of the plaint schedule property and he did not enquire to him as to the

ownership of the plaint schedule property. As a matter of fact it is clear from Ext. A-4 sale deed in respect of that property that it was executed by the mother of Varathan Pillai also. Therefore, it is a clear case where the plaintiff claims to have entered into an oral agreement with respect to the plaint schedule property even without ascertaining about the title of the property and whether defendants 1 to 3 are competent to enter into such an agreement. Learned counsel for respondent submitted that the mother may be having a share under the Hindu Succession Act. But the defendants can be directed to execute an assignment in respect of their right in the property. The plaintiff has no case that the defendants agreed to sell their undivided right in the plaint schedule property and the question is not whether the defendants 1 to 3 can be directed to sell their share but whether the oral agreement set up is probable when the plaintiff did not even enquire into the ownership of the property.

10. The plaintiffs case in support of the oral agreement is a piece of paper marked as Ext. A-3. The plaintiffs case with respect to this in the plaint is as follows :

‘The first defendant wrote on a sheet of paper his address and noted the amount of consideration received by him in advance on that date. The strip of paper was given to the plaintiff by 1st defendant with other documents.”

11. When he gave oral evidence he said that the first defendant had written in a piece of paper that he has received Rs. 5,000/-and that paper was given to the plaintiff. He has clearly admitted in evidence that the first defendant wrote in a piece of paper only on one side as “Rupees five thousand” and signed without writing his name. It is also stated that no date was put in the piece of paper. However, on perusal of Ext. A-3 it is seen that the piece of paper contains no signature as alleged by the plaintiff. The name of the first defendant is written on one side of the paper and the amount of Rs. 5,000/-is written on the other side. Though PW-1 has stated that no date is fixed in the piece of paper the dates of 9-11-84 is written on one side and 20-12-1984 is written on the other side. It is also written Canara Bank, Broadway, Ernakulam. Bank of Baroda, Kalamassery, Thanjavur Bank, Ernakulam

below the name of Sreenakesh. Therefore on all material particulars there are serious discrepancies between the oral evidence of the plaintiff on one side and the document produced as Ext. A-3 on the other side. The case of the first defendant is that the plaintiff had come to the business premises of the first defendant at the end of October or beginning of November, 1984 and requested for sale of plaint schedule property to him for Rs. 3,500/- per cent but showing only Rs. 1,100/- in the document. He might have taken at that time the piece of paper which was discarded as waste paper by the first defendant. His contention is that the entry in the paper except Rs. 5,000/- and the two dates were written by him on some other occasion and discarded as waste paper and these particulars namely Rs. 5,000/- and the two dates are those inserted by the plaintiff or at his instance before producing it is Court.

12. Another important factor which makes the oral agreement improbable is that the price of the land for which the sale is alleged to have been agreed to. The property is facing the national highway on the east and there are roads on the north and western side. Ext. A-4 relates to a property on the western side of the plaint schedule property. It was executed ten months prior to the alleged agreement. Learned counsel appearing for the appellants submitted that it was improbable for any person to enter into an agreement for sale of the property on the side of the national highway and facing the national highway for a sum of Rs. 1,100/- per cent. It is to be noticed that the sale in favour of defendants 4 to 6 with respect to the plaint schedule property is for Rs. 2,900/- per cent which is executed within six months of the alleged agreement set up by the plaintiff. Ext. A-3 does not even mention that Rs. 5,000/- was received from the plaintiff. It does not also show the value of Rs. 1,100/- per cent which is said to have been agreed to between the parties. There is no explanation as to who put the dates in Ext. A-3 as the plaintiff has no case that the first defendant had put those dates in it.

13. The trial Court has not adverted to the discrepancies in the evidence of PW-1 and the case set up in the plaint or the discrepancies between the evidence of PW-1 and those of PW-2 and PW-3 who were examined as persons present when Ext. A-3 is said to have been handed over to the plaintiff. PW-2 has stated in chief examination that the first defendant had requested him to get the plaint schedule property sold and therefore he enquired with various persons including the plaintiff. PW-2 has stated that the first defendant has written in the piece of paper that he has received Rs. 5,000/-. He has also signed in that slip. But there is no such endorsement or signature in Ext. A-3. He is said to have associated himself with the execution of Ext. A-4 which was executed by the grandmother of defendants 1 and 3. Still he did not inform the plaintiff about her right in the property though he gave evidence that he was acting as broker in the transaction.

14. PW-3 is another witness who is said to have been present when Ext. A-3 was given to the plaintiff by the first defendant. He also gave evidence that the first defendant has written as he has received Rs. 5,000/- in a piece of paper. He is also said to be the person to whom the first defendant had requested to get the property sold. He admitted that it was his sister who purchased the property under Ext. A-4. He also admitted that no enquiry was made as to the ownership of the property when the talk was going on. Learned counsel for the appellants submitted that there was no difficulty for the plaintiff to get Exts. A-1 and A-2, the copy of the partition deed and the power of attorney since Ext. A-4 was executed in favour of the sister of PW-3 as at that time these documents might have been handed over to her.

15. The trial Court has stated that the burden is on the plaintiff to establish the existence of the oral agreement and all the terms and conditions which formed part of the agreement; but has mainly discussed the evidence or) the side of the defendants to find out as to how far they have succeeded in refuting the case of the plaintiff. We feel that this was not a proper approach to be made in the case. The finding of the trial Court is that Ext. B-3 is artificially created at the junction of DW-1 Yohannan and Ext. B-2 and B-7 sale deeds are executed after the filing of the suit. It is stated that Ext. B-3 is an unregistered agreement and is hit by the Rule of Us pendens. That observation is obviously a mistake as the trial Court would not have intended an agreement dated

22-10-84 to be vitiated by lis pendens in a suit filed on 18-12-84. It is to be noted that Ext. B-3 is written on a stamp paper which was purchased in the name of the second defendant on 22-8-84 and the date of the agreement is also the same date. It is true that the grandmother of the first defendant had not joined in that agreement but she has joined in the sale deeds which are marked as Exts. B-2 and B-7 executed in favour of defendants 4 to 6. The trial Court has not chosen to believe Ext. B-3 because it is an unregistered agreement but has chosen to believe Ext. A-3 which is a small piece of paper in which apart from various other things Rs. 5,000/- is also written. The other things written on one side of the piece of paper has nothing to do with the transaction and what is stated in the plaint is that the first defendant wrote the amount given and his address in a sheet of paper. But a perusal of Ext. A-3 shows that it is not a sheet of paper specifically used for this purpose. Still the trial Court thought it fit to believe that piece of paper to find an agreement of sale and to grant a decree for specific performance on its basis.

16. PW-4 was examined to substantiate the case of the plaintiff. But he gave evidence to the effect that he was told that 1st defendant had agreed to sell the land for Rs. 1,500/- per cent, but later he demanded Rs. 3,000/- per cent. This is inconsistent with the case of the plaintiff that it was settled for Rs. 1,100/- per cent. The learned Sub-Judge has also stated that from the writing in Ext. A-3 and the signature in the deposition of DW-2, it can be seen that the handwritings in Ext. A-3 chit were made by the 1st defendant himself. This conclusion of the trial Court is directly in conflict with the evidence given by the witnesses on the plaintiffs side. In fact, pointed questions were asked about the contents of Ext. A-3. PW-1 admitted that there was no date put in Ext. A-3. No other witness has stated that the first defendant put the date in Ext. A-3. Though it is open to the Court to make comparison of handwriting or signature under Section 73 of the Evidence Act from the similarly of the handwritings or signatures, it is only an expert who can analyse the mode of writing, the pen pressure etc. The trial Court was not justified in undertaking that work without the assistance of a handwriting expert. Though PW-1 has stated that defendants 4 to 6 were aware of the agreement between the plaintiff and defendants 1 to 3, in view of the fact that no material has been produced to show the same, we are not in a position to believe the case of the plaintiff.

17. Another reason given by the trial Court to disbelieve the case of the defendants is that Ext. B-3 agreement is not referred to in Exts. B-2 and B-7 sale deeds. Merely because the agreement which preceded the registered document is not mentioned in the registered document that by itself is not a reason to disbelieve the agreement as the agreement is only having life till a registered document is executed. The trial Court relied on the decision in Krishnan Kesavan v. Kochukunju Karunakaran, AIR 1988 Ker 107. In that case it is held that no rule of law says that relief cannot be granted when the agreement and evidence supporting it are only oral and no document are there to support it. It is not the contention of the defendants that oral agreements are not capable of being enforced through Court. According to us the case set up by the plaintiff is improbable. He did not enquire about the true owner of the property before the alleged agreement. When he went to pay the balance sale consideration he did not even ascertain the correct extent of the property. No steps were taken to prepare the original sale deed and even before he sees the original title deeds and the encumbrance certificate, he is alleged to have taken the entire balance sale consideration for payment to the defendants 1 to 3. PW-3 admitted that he did not enquire about the original title deed. The sister of PW-3 had purchased the western boundary property of the plaint schedule property from the grandmother of first defendant and defendants 1 to 3 together and PW-3 is said to have mediated in the transaction. The plaintiff could not be ignorant of the right of the grandmother of first defendant and he did not enter into any agreement with her. The price fixed at Rs. 1,100/- per cent for a property having road frontage with National Highway is also very low especially when we find that the property was sold within 5 months at the rate of Rs. 2,900/- per cent. In such cases, we are of opinion that we have to take into account the caution given by the Supreme Court in Ouspeh Varghese v. Joseph Aley, (1969) 2 SCWR 347. In that decision the Supreme Court has stated as follows :

“Before a Court can grant a decree for a specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant, specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform the part of the agreement. In the absence of such an allegation the suit is not maintainable. In the present case the plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of the defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code.”

In this case, apart from the improbabilities pointed out above the plaintiff did not even issue a notice calling upon the defendants to execute the document after receipt of consideration before filing the suit for specific performance. No reason is stated why no notice was issued calling for the execution of the document though it is not a statutory requirement.

18. It is also to be seen that the plaintiff has no case that he got the property measured before fixing the total consideration of Rs. 1,84,800/- and taking the balance amount of Rs. 1,79,800/- on 20-12-1984 to request the first defendant and others to execute the sale deed. In fact it is clear from Ext. A4 that the actual extent of the property is only 1.57 acres as against 1.68 acres for which the suit is filed.

19. As observed by the trial court when the agreement to sell is oral the plaintiff has to satisfy the conscience of the court by adducing necessary and proper evidence with regard to the truth of the oral agreement and also all the terms and conditions of the agreement. On the basis of the available evidence as discussed above we are not satisfied that the oral agreement set up by the

plaintiff is proved in the case and the reasoning of the trial court in so far as it has omitted to take note of the inconsistencies in the evidence on the side of the plaintiff and improbability of such an oral agreement cannot be sustained.

20. Defendants 4 to 6 are purchasers of the property and they claim to be bona fide purchasers without the knowledge of the alleged agreement between the plaintiff and defendants 1 to 3. In as much as we have found that the plaintiff has failed to prove the oral agreement, this question may not arise for consideration. However we will discuss that aspect also in this judgment. In S. Balakrishnan v. R. Kunhikrishnan 1981 Ker. LT 463 : (AIR 1982 Noc 18) it is held that the burden of showing that the purchase was bona fide and without notice of the existing agreement for sale with regard to a property is on the subsequent purchaser. Such burden in the normal case would be discharged even by party swearing in the witness box that he was not aware of any agreement for sale. In this case there are two agreements set up by the rival parties. Ext. B3 dated 22-10-1984 which is written on a stamp paper is anterior in point of time than the date of the oral agreement set up by the plaintiff which is 9-11-1984.

21. The learned counsel for the respondents pointed out that in calculating the consideration shown in Exts. B2 and B4, it is not seen that Rs. 5,001/- received as advance is not deducted and therefore there is doubt about the bona fides in the execution of Exts. B2 and B7, there is no case for the plaintiff that Exts. B23 and B7 have not come into effect or possession is not transferred to defendants 4 to 6. Therefore, merely because there is some mistake in the calculation of the total consideration that by itself is insufficient to doubt the genuineness of those documents. The learned counsel appearing for the appellants in A. S. No. 346 of 1990 appointed out that defendants 5 and 6 were not even in India when they are said to have gone to the plaintiff to know about the contract in his favour. They have produced their passports along with C.M.P. No. 5962 of 1990 to receive them as additional evidence to show that defendants 5 and 6 were in Muscat during the relevant time and there was no occasion for them to meet the plaintiff and ascertain about the agreement. In fact DW1. Who is the brother of 5th defendant and power of attorney holder has stated that these defendants were not aware of the pendency of the case at any time.

22. Section 48 of the registration Act states that all non testamentary documents duly registered under the Act and relating to any property whether movable or immovable; shall take effect against the oral agreement or declaration relating to such property unless where the agreement or declaration has been accompanied or followed by delivery of possession. In this case since the assignment is already registered even if oral agreement set up is true it cannot be enforced except on the ground of lis pendens. It has been already held by the Andra Pradesh High Court in Yella Reddy v. Subbf Reddy, AIR 1954 Andh Pra 20 and the Madhya Pradesh High Court in Ghasiram v. Shankarlal, AIR 1960 Madh Pra 3 that where the subsequent transferee had obtained his transfer with notice of the prior oral agreement and in fraud of the right created in favour of a third party under the oral agreement Section 48 of the Registration Act has no application, therefore the question whether defendants 4 to 6 had notice of the earlier agreement and pendency of the suit requires to be considered in this appeal. The burden to prove the same is on the subsequent transferees as held by the Privy Council in Shankarlal Narayanandas Mundadi v. New Moffusil Co. Ltd. AIR 1946 PC 97.

23. Dw 1 is the brother and power of attorney holder of the 5th defendant. He has stated that the assignment in favour of 4th defendant also is as per his direction. When the documents were executed they were not aware of the pendency of the case and the first defendant did not tell them about the case. They came to know about the case only after getting summons in the suit. Nothing has been brought out in cross examination to discredit the evidence of Dw 1 given in chief examination. The first defendant has been examined as Dw2. He has also given evidence to the effect that he has not stated about the existence of the suit to the persons who obtained Exts. B2 and B7 assignment or to Dw 1. He was cross examined by the plaintiffs counsel and he stated the reason for not disclosing about the pendency of the case to defendants 4 to 6 or to Yohannan. According to him he had consulted one P.N. Menon and he advised him that the suit is filed for pressurising him and he need not tell about it to Yohannan or to his nominees, the 4th defendant is examined as Dw3 and he has given evidence to the effect that he was not aware of the tendency of the case when he purchased the property. It is contended that since the first defendant had notice of the suit before executing Exts. B2 and B7 even if defendants 4 to 6 had no notice of the pendency of the suit in case the suit is decreed their purchases will be hit by lis pendens. It is not possible to agree with this contention since Section 19 of the Specific relief Act 1963 which corresponds to Section 27 of the old Act safeguards the interest of persons who are subsequent transferees and who have paid money in good faith and without notice of the original agreement. This proposition is accepted by the Madhya Pradesh High Court in Ghasiram’s case already referred to earlier. The Andhra High Court has also stated the same thing in Yella Reddy’s case AIR 1954 Andh Pra 20. The same view was taken by a learned single Judge of this Court in Ali Rawther v. Kochupennu ILR, (1986) 2 Kerala 313. A Division Bench of this court has held in Joseph George v. Chacko Thomas (1992) 1 Ker LT 6 that if it is without notice of the prior agreement the subsequent transferees are protected.

24. Learned counsel for the respondent/ plaintiff relying on the decision reported in Krishnan Sathyadas v. Lakshmikutty Amma (1990) 2 Ker LT 795 has contended that the court has got power to direct execution of the document in so far as the rights of defendants 1 to 3 are concerned when the plaintiff is willing to take such assignment. In the light of the conclusion arrived at earlier that plaintiffs oral agreement has not been properly proved, this question does not arise for consideration.

In the light of the above discussion, we , find that the oral agreement set up by the plaintiff is not proved and the sale deeds in favour of defendants 4 to 6 are not liable to be Ignored for any reason whatsoever. We therefore set aside the judgment and decree of the trial court and allow the appeals and dismiss the suit with cost of the respondents.

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