{"id":171237,"date":"2007-09-21T00:00:00","date_gmt":"2007-09-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/auadai-sangu-vs-k-durairaj-on-21-september-2007"},"modified":"2017-08-14T22:38:34","modified_gmt":"2017-08-14T17:08:34","slug":"auadai-sangu-vs-k-durairaj-on-21-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/auadai-sangu-vs-k-durairaj-on-21-september-2007","title":{"rendered":"Auadai Sangu vs K.Durairaj on 21 September, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Auadai Sangu vs K.Durairaj on 21 September, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 21\/09\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\n\nS.A.(MD)No.524 of 1997\nand\nC.M.P.(MD).No.5826 of 1997\n\n\nAuadai Sangu\t\t...\t\tAppellant\n\n\nVs.\n\n\n1.K.Durairaj\n2.Madasamy Thevar\n3.T.R.Subbiah\t\t...\t\tRespondents\n\n\nPRAYER\n\n\nSecond Appeal filed under Section 100 of the Code of Civil Procedure,\nagainst the judgment and decree dated 24.09.1996 made in A.S.No.11 of 1994 on\nthe file of the Court of Subordinate Judge, Tuticorin, confirming the judgment\nand decree dated 30.11.1993 made in O.S.No.18 of 1993 on the file of the\nAdditional District Munsif of Tuticorin.\n\n\n!For Appellant\t\t...\tMr.J.Pothiraj\n\n\n^For 1st Respondent \t...\tNo Appearance\n\t\t\n\nFor 2nd Respondent\t...\tMr.M.P.Senthil\n\n\nFor 3rd Respondent\t...\tMr.K.Srinivassan\n\n\n\n:JUDGMENT\n<\/pre>\n
\t\tThis second appeal is directed against the judgment of the lower
\nappellate Court, namely  Court of Subordinate Judge, Tuticorin, dated 24.09.1996
\npassed in A.S.No.11 of 1994, confirming the judgment and decree of the trial
\nCourt (Court of Additional District Munsif, Tuticorin) dated 30.11.1993 passed
\nin O.S.No.18 of 1993.\n<\/p>\n
\t\t2. The plaintiff in the original suit is the appellant in the
\npresent second appeal. He had filed the original suit, namely O.S.No.18 of 1993
\non the file of the trial Court, for the relief of specific performance of the
\ncontract based on the suit sale agreement dated 02.05.1991. In the plaint, it
\nwas contended that the suit property belonged to the first respondent\/first
\ndefendant who entered into an agreement for sale of the property to the
\nappellant\/plaintiff on 02.05.1991; that the agreed sale price was Rs.7,000\/- and
\nthe entire sale consideration was paid on the date of agreement itself and that
\nthe first respondent\/first defendant agreed and undertook to execute the sale
\ndeed as and when the appellant\/plaintiff would call upon him to do so. It was
\nthe further contention of the appellant\/plaintiff that though the
\nappellant\/plaintiff had performed his part of the contract on the date of
\nagreement itself by making payment of the entire sale consideration and
\nthereafter, was ready and willing to get the sale deed executed and registered
\nin his name at his cost, the first respondent\/first defendant who evaded the
\nexecution of the sale deed subsequently executed a power of attorney in favour
\nof the second respondent\/second defendant who in turn on the strength of the
\nsaid power of attorney executed a sale deed in favour of the third
\nrespondent\/third defendant. It was also contended by the appellant\/plaintiff in
\nhis pleadings that the third respondent\/third defendant was not a bona fide
\npurchaser, who purchased the suit property without notice of the existence of
\nthe suit sale agreement and hence his right could not be protected. According to
\nthe plaintiff, on the date of agreement itself, possession of the suit property
\nwas delivered to the appellant\/plaintiff in part performance of the contract and
\nhe continued to be in possession and enjoyment of the suit property till the
\ndate of filing of the suit.\n<\/p>\n
\t\t3. The suit was resisted by all the respondents\/defendants.
\nRespondents 1 and 2\/defendants 1 and 2 filed a common written statement, whereas
\nthe third respondent\/third defendant filed a separate written statement.
\nRespondents 1 and 2\/defendants 1 and 2 in their written statement admitted the
\nexecution of the suit sale agreement, but denied the correctness of the recital
\nfound in the agreement regarding passing of consideration and delivery of
\npossession in part performance of the contract. They have admitted that such
\nterms had been incorporated in the agreement and knowing fully well that such
\nterms had been incorporated in the agreement, the first defendant affixed his
\nsignature in the suit agreement. However they contended that the parent deed and
\npossession of the property were not delivered to the appellant\/plaintiff, as it
\nwas informed by the appellant\/plaintiff after the agreement was signed by the
\nparties that he did not have the money with him at that point of time to be paid
\nto the first respondent\/first defendant and that he would make payment
\nsubsequently. According to them, since the appellant\/plaintiff was not ready and
\nwilling to perform his part of the contract, the first respondent\/first
\ndefendant through his power agent (the second respondent\/second defendant)
\nexecuted a sale deed on 21.12.1992 for a valid consideration in favour of the
\nthird respondent\/third defendant and handed over possession of the suit property
\nto him and that ever since the said date of sale deed, the third
\nrespondent\/third defendant was in possession and enjoyment of the suit property
\ntill the date of filing of the suit.\n<\/p>\n
\t\t4. The third respondent\/third defendant had taken a plea that he was
\na bona fide purchaser of the suit property  for a valid consideration without
\nnotice of the existence of the suit sale agreement; that he got delivery of
\npossession of the suit property on the date of purchase itself and that ever
\nsince he purchased the property on 21.12.1992, he continued to be in possession
\nand enjoyment of the suit property till the date of filing of the suit.\n<\/p>\n
\t\t5. With the above said contentions, the respondents\/defendants had
\nprayed for the dismissal of the suit.\n<\/p>\n
\t\t6. The trial Court framed as many as six issues and in the trial
\nthat followed two witnesses, including the plaintiff, were examined as P.Ws.1
\nand 2 and five documents Exs.A-1 to A-5 were marked on the side of the
\nplaintiff. Four witnesses were examined and two documents Exs.B.1 and B.2 were
\nmarked on the side of the defendants. On an appreciation of evidence, the
\nlearned Additional District Munsif, Tuticorin accepted the contention of the
\nrespondents\/defendants that there was failure of consideration; that the plea of
\npart performance of the contract under Section 53-A of the Transfer of Property
\nAct, 1882 should be disbelieved and that the appellant\/plaintiff was not ready
\nand willing to perform his part of the contract and hence, he was not entitled
\nto the relief of specific performance sought for in the plaint. The learned
\ntrial Judge has also held the third respondent\/third defendant a bona fide
\npurchaser without having purchased without notice of the existence of an earlier
\nsale agreement in favour of the appellant\/plaintiff. Based on the said findings,
\nthe suit was dismissed by the trial Court by its judgment and decree dated
\n30.11.1993. On appeal, the lower appellate Court concurred with all the findings
\nof the trial Court and dismissed the appeal, confirming the judgment and decree
\nof the trial Court. Hence the appellant\/plaintiff is before this Court in this
\nsecond appeal.\n<\/p>\n
\t\t7. This Court heard the submissions made by Mr.J.Pothiraj, learned
\ncounsel appearing for the appellant, by Mr.M.P.Senthil, learned counsel
\nappearing for the second respondent and also by Mr.K.Srinivassan, learned
\ncounsel appearing for the third respondent. The materials available on record
\nincluding the judgments of both the Courts have also been perused.\n<\/p>\n
\t\t8. At the time of admission, the following substantial questions of
\nlaw were framed for determination in the second appeal:\n<\/p>\n
\t“(i) Whether the plaintiff is estopped from denying the term of agreement
\nwith regard to consideration under Section 91 of the Evidence Act?\n<\/p>\n
\t(ii) Whether in law the third defendant is a bona fide purchaser for value
\nwithout notice?”\n<\/p>\n
\t\t9. Advancing arguments on behalf of the appellant, Mr.J.Pothiraj,
\nlearned counsel argued that both the Courts below committed an error in
\nadmitting the oral evidence against the recitals found in the suit sale
\nagreement regarding passing of consideration and delivery of possession in part
\nperformance of the contract. According to him, the approach made by the Courts
\nbelow is against Section 91 of the Indian Evidence Act. It is the further
\ncontention of the learned counsel for the appellant that the third
\nrespondent\/third defendant, being a resident of the very same village, was very
\nmuch aware of the suit agreement and the possession of the appellant\/plaintiff
\nin part performance of the suit agreement and that the Courts below have
\ncommitted an error in simply accepting the interested testimony of the third
\nrespondent\/third defendant as D.W.4 and casting the burden on the
\nappellant\/plaintiff to prove absence of notice.\n<\/p>\n
\t\t10. The learned counsel advanced an argument that Section 91 of the
\nIndian Evidence Act is a bar for adducing any oral evidence in proof or in in
\ndisproof of the recitals found in Ex.A.2 regarding passing of consideration and
\ndelivery of possession of the suit property to the appellant\/plaintiff.\n<\/p>\n
\t\t11. Per contra, the learned counsel for the contesting respondents 2
\nand 3 contended that both the Courts below correctly applied the principles of
\nlaw to the facts of the case and no infirmity or defect could be found in the
\napproach made by the Courts below and that the concurrent findings of fact
\nrendered by the Courts below could not be interfered with in the second appeal.\n<\/p>\n
\t\t12. In the light of the rival submissions made by the learned
\ncounsel appearing for either party, the above said substantial questions of law
\nformulated at the time of admission are dealt with as under.\n<\/p>\n
\t\t13. It is not in dispute that the suit property absolutely belonged
\nto the first respondent\/first defendant. Admittedly the suit agreement came to
\nbe executed as a mutual agreement between the appellant\/plaintiff and the first
\nrespondent\/first defendant. It is also admitted by the first respondent\/first
\ndefendant that the suit sale agreement dated 02.05.1991 was executed by him
\nagreeing to sell the suit property to the appellant\/plaintiff for a sale
\nconsideration of Rs.7,000\/-. The suit agreement Ex.A.2 contains the following
\nrecitals: (i) The entire sale consideration of Rs.7,000\/- was paid by the
\nappellant\/plaintiff to the first respondent\/first defendant at the time of
\nexecution of the sale agreement; (ii) The possession was delivered to the
\nplaintiff on the date of agreement itself in part performance of the contract;
\nand (iii) Parent document, namely sale deed that stood in the name of the first
\nrespondent\/first defendant was handed over on the same date to the
\nappellant\/plaintiff. The respondents 1 and 2 contended that even though such
\nrecitals had been incorporated in the sale agreement, actually no such payment
\nwas made either on the date of agreement or subsequently; that the first
\nrespondent\/first defendant demanded payment of money immediately after signing
\nthe suit agreement but the appellant\/plaintiff expressed his inability to make
\nimmediate payment as he had not brought the cash with him and promised to pay
\nthe amount later and that hence, the first respondent\/first defendant refrained
\nfrom handing over the parent document. According to the respondents 1 and 2,
\npossession of the suit property was also not handed over to the plaintiff in
\naccordance with the recitals found in Ex.A.2 for the very same reason. In order
\nto substantiate the above said contention raised on behalf of the respondents 1
\nand 2\/defendants 1 and 2, besides examining themselves as D.Ws.1 and 2, they
\nhave also examined one Ramasubbu, one of the attestors of the suit sale
\nagreement as D.W.3. On the other hand, the appellant\/plaintiff chose to examine
\nhimself as P.W.1 and one Muthusamy as P.W.2, contending that the said Muthusamy
\nwas also one of the attestors of the suit sale agreement.\n<\/p>\n
\t\t14. Admittedly D.W.3 Ramasubbu was one of the attestors of Ex.A.2
\nsale agreement. So far as P.W.2 Muthusamy is concerned, it is the contention of
\nthe respondents that the said Muthusamy and one Arunachalam were not the actual
\nattestors of the suit sale agreement and that they had been subsequently
\nintroduced by the plaintiff in order to defeat the stand of the defendants 1 and
\n2 regarding payment of the purchase price and delivery of possession in part
\nperformance of the contract. The circumstances relied on by the respondents are:\n<\/p>\n
(i) Only two serial numbers have been written in Ex.A.2 sale agreement as
\nagainst which D.W.3 Ramasubbu, and D.W.2 Madasamy Thevar, the second
\nrespondent\/second defendant have signed their names as attestors as against
\nserial numbers 1 and 2; (ii) The signature of P.W.2 Muthusamy has been obtained
\nin the space above the signature of D.W.3 and the signature of Arunachalam has
\nbeen obtained in between the signatures of Ramasubbu (D.W.3) and Madasamy Thevar
\n(D.W.2-second respondent). No serial number has been assigned against the
\nsignatures of Muthusamy and Arunachalam. Obviously since the serial numbers of
\nthe witnesses had already been written finding no place below the signature of
\nMadasamy Thevar at Serial No.2 to get the signatures of the above said Muthusamy
\n(P.W.2) and Arunachalam, the appellant\/plaintiff has used the space available:-\n<\/p>\n
(i) above the signature of the first witness and (ii) in between the signatures
\nof the first and second witnesses to insert the signatures of Muthusamy (P.W.2)
\nand Arunachalam and that is why assigning serial number to them was avoided,
\notherwise the same would result in jumbling of the serial number of the
\nattestors. (iii) Even though P.W.2 claims to have been present at the time of
\nexecution of the sale agreement and attested the same along with three other
\nattestors, he was not in a position to say the contents of Ex.A.2. He was not
\neven able to say the name of D.W.2 in his chief-examination. He referred to him
\nas a person whose name was not known to him. He has also stated that he was not
\naware whether the parent document was handed over at the time of execution of
\nthe sale agreement. According to the evidence of P.W.1, all the four attestors
\nwere present in the place wherein the suit sale agreement was written right from
\nthe beginning till the execution was completed. On the other hand, P.W.2 would
\nstate in his cross-examination that they had started writing the document before
\nhe could reach the place wherein the suit sale agreement was written, namely the
\nplace of the document writer in Kadambur.\n<\/p>\n
\t\t15. Taking into consideration the above said aspects, the Courts
\nbelow accepted the contention of the respondents\/defendants and came to the
\nconclusion that P.W.2 could not have been present at the time of execution of
\nthe sale agreement; that P.W.2 and Arunachalam were subsequently introduced by
\nthe plaintiff without the knowledge of the first defendant and that the evidence
\nof P.W.2 in this regard was unreliable. This Court finds no error or infirmity
\nin the above said finding of the Courts below rejecting the evidence of P.W.2 as
\nunreliable and unbelievable.\n<\/p>\n
\t\t16. So far as passing of consideration is concerned, the respondents
\n1 and 2\/defendants 1 and 2 had taken a consistent stand that the amount said to
\nhave been paid as per the recital found in the suit agreement was not actually
\npaid; that the appellant\/plaintiff had promised to pay the amount immediately
\nafter signing the agreement but after the parties and witnesses signed the
\nagreement, the appellant\/plaintiff informed that he had not brought the money
\nwith him and promised to pay subsequently and that the same was the reason why,
\nthe parent document was not handed over and possession of the property was not
\ndelivered in accordance with the recitals found in the agreement. It is a fact
\nwhich cannot be disputed that the suit sale agreement contains a recital to the
\neffect that parent document was also handed over to the appellant\/plaintiff at
\nthe time of execution of the sale agreement. In spite of incorporation of such a
\nrecital in the sale agreement, it is admitted that the parent deed was not
\nhanded over to the appellant\/plaintiff. On the other hand, admittedly the parent
\ndeed remained with the first defendant and was handed over to the third
\nrespondent\/third defendant, the subsequent purchaser from the first
\nrespondent\/first defendant under Ex.B.1. The said parent deed has been marked as
\nEx.B.2. The admission indicated above will make it abundantly clear that the
\nrecitals found in the suit agreement regarding the said aspect is not correct.
\nIt makes more probable the case of the respondents\/defendants that the parent
\ndeed and possession of the property were not handed over on the date of
\nagreement since the appellant\/plaintiff did not make the payment.\n<\/p>\n
\t\t17. Apart from making a clear plea in the written statement,
\nevidence has also been adduced through D.Ws.1 to 3 to the effect that the parent
\ndeed was not handed over and possession of the property was not delivered to the
\nappellant\/plaintiff as the appellant\/plaintiff had not paid the amount quoted in
\nthe suit agreement in accordance with the recital found therein. In unambiguous
\nterms, all the three witnesses have clearly deposed that the sale price as
\nrecited in the agreement was not paid on the date of agreement. As against such
\nevidence on the side of the defendants, evidence adduced on the side of the
\nappellant\/plaintiff are:- (i) ipse dixit of the appellant\/plaintiff himself as
\nP.W.1; and (ii) the testimony of P.W.2. It has been pointed out supra that the
\nevidence of P.W.2 in this regard is unbelievable and unreliable. The other
\nmaterials relied on by the learned counsel for the appellant\/plaintiff are
\nExs.A.3 and A.4. Ex.A.3 is the kist receipt dated 01.01.1993 evidencing payment
\nof kist just a few days prior to the filing of the suit. A copy of the parent
\ndeed, namely sale deed dated 20.11.1989 was obtained by the appellant\/plaintiff
\nand marked as Ex.A.1. It seems the appellant\/plaintiff had applied for the said
\ncertified copy on 28.12.1992, just a few days prior to the filing of the suit,
\nand obtained the certified copy on the very same date. Though no importance
\ncould be attached to the said documents as it is quite obvious that the
\nappellant\/plaintiff had obtained those documents, just a few days prior to the
\nfiling of the suit, for the purpose of filing the suit. Ex.A.4 is a copy of the
\ncommunication addressed by the Tahsildar, Ottapidaram to the
\nappellant\/plaintiff. It is noticed from the said document that an application
\nmade by the appellant\/plaintiff for change of patta in his name in respect of
\nthe suit property was rejected by the Tahsildar stating that he could not ask
\nfor transfer of patta before ever he could get the sale deed in his favour.  The
\nsaid order is dated 11.12.1992. But it has been observed that the application
\nsubmitted by the appellant\/plaintiff for sub-division did not contain any date.
\nOn the other hand, the chalan attached to Ex.A.4 would show that the payment for
\nsub-division and change of patta was made on 08.10.1992. The suit agreement was
\ndated 02.05.1991. The appellant\/plaintiff kept quiet till the 8th day of October
\n1992. But in the month of October 1992, he seems to have made an application to
\nthe Tahsildar for sub-division and change of patta in his name in respect of the
\nsuit property, even before getting a sale deed executed. On the strength of the
\nsale agreement itself, the appellant seems to have filed an application for
\nchange of patta in his name, a couple of months prior to the filing of the suit,
\nas an attempt to create record to show as if the property was in his possession
\nin part performance of the contract for sale. The Courts below have rightly
\ndeclined to rely on the said document filed in support of the contention of the
\nappellant that possession of the suit property was handed over to him on the
\ndate of agreement itself, in part performance of the contract.\n<\/p>\n
\t\t18. The questions – “(i) whether the sale price or advance as
\nrecited in dispute agreement was paid to the first defendant on the date of
\nagreement; and (ii) whether the possession of the suit property was handed over
\nto the appellant\/plaintiff on the date of agreement itself?” – are no doubt
\nquestions of fact. On a proper appreciation of evidence, both the Courts below
\nhave arrived at a conclusion against the appellant\/plaintiff and in favour of
\nthe respondents\/defendants regarding the said questions of fact. Concurrent
\nfindings of facts cannot be interfered with in the second appeal unless the same
\nwill result in grave miscarriage of justice. With a difficulty of challenging
\nthe said findings on questions of fact, the appellant has come forward, for the
\nfirst time, with a plea that the respondents 1 and 2\/defendants 1 and 2 were not
\nentitled to lead evidence against the recitals found in Ex.A.2-sale agreement,
\nregarding passing of consideration and delivery of possession of the suit
\nproperty to the plaintiff and that Section 91 of the Indian Evidence Act
\nprohibits adducing any oral evidence in disproof of the said recitals. Section
\n91 of the Indian Evidence Act says that no evidence shall  be given in proof of
\nthe terms of the contract or disposition of the property except the document
\nitself or secondary evidence of its contents, when the terms of a contract or of
\na grant or of any other disposition of property have been reduced to the form of
\ndocument and in all cases in which any matter is required by law to be reduced
\nto a form of a document.\n<\/p>\n
\t\t19. “Whether a recital in the document regarding passing of
\nconsideration could be a mere acknowledgment of the receipt of money falling
\nshort of a term of the contract of sale or it could be construed as one of the
\nterms of the contract?” – is the question to be answered in this case.\n<\/p>\n
\t\t20. It is now well settled that the recitals regarding payment of
\nconsideration found in a document is not to be construed as a term of the
\ncontract so that the oral evidence in proof of the same or disproof of the same
\ncould be excluded. Illustration – (e) appended to Section 91 of the Indian
\nEvidence Act itself provides that even in case where a receipt has been issued
\nfor the money paid, oral evidence of the payment could be offered. The recital
\nfound in Ex.A.2 regarding payment of consideration could be construed as
\nacknowledgment receipt of the amount, in proof of or disproof of which oral
\nevidence could be adduced. Therefore, the above said argument advanced by the
\nlearned counsel for the appellant, referring to Section 91 of the Indian
\nEvidence Act, has got to be discountenanced and the first substantial question
\nof law is accordingly answered against the appellant and in favour of the
\nrespondents.\n<\/p>\n
\t\t21. Regarding the question of readiness and willingness on the part
\nof the appellant\/plaintiff to perform his part of the contract, the concurrent
\nfindings of both the Courts below cannot be termed either infirm or defective
\nmuch less perverse. If the question of readiness and willingness on the part of
\nthe plaintiff is considered in the light of the above finding that no payment
\nwas made on the date of agreement, the only conclusion that can be arrived at is
\nthat the appellant\/plaintiff was not ready and willing to perform his part of
\nthe contract, as admittedly he was not ready to pay the said amount till the
\nfiling of the suit. In addition to that, the conduct of the appellant\/plaintiff
\nin not issuing any pre-suit notice will also go to show that the
\nappellant\/plaintiff was not ready and willing to pay the amount. Hence, there
\ncan be no interference with  the findings of the Courts below negativing the
\nplea of the plaintiff that he was ready and willing to perform his part of the
\ncontract ever since the date of agreement till the filing of the suit.\n<\/p>\n
\t\t22. In line with the views expressed above, this Court is of the
\nconsidered opinion that the Courts below have rightly held the
\nappellant\/plaintiff not entitled to the relief of specific performance of the
\ncontract as sought for in the plaint. As the appellant\/plaintiff had not paid
\nany amount towards advance, the question of directing refund of the same would
\nnot arise. As against the concurrent finding of the Courts below regarding
\nreadiness and willingness, the appellant has not made out a case for
\ninterference in this second appeal. On that score alone, the second appeal
\ndeserves to be dismissed.\n<\/p>\n
\t\t23. So far as the third respondent\/third defendant is concerned,
\napart from the defences available to the first respondent\/first defendant, the
\ndefence of being a bona fide purchaser for valid consideration without notice of
\nthe suit agreement is also available. Such a protection to the bona fide
\npurchaser is available under Section 19(b) of the Specific Relief Act. As per
\nSection 19(b) of the Specific Relief Act, the right of a transferee for value
\nwho paid the money in good faith and without notice of the original contract is
\nprotected. When a plea of the subsequent purchaser to the effect that he is a
\nbona fide purchaser for value in good faith and without notice of the prior
\ncontract is made, it shall be enough for him to get into the box and testify to
\nthat effect.  He shall not be expected to lead any further negative evidence to
\nprove absence of notice. On the other hand, when such a denial is made by a
\nparty making necessary averments in the pleadings and such party testifies by
\ngetting into the box, the same shall be enough to shift the burden on the
\nplaintiff to prove that such purchaser had notice of the existence of prior
\ncontract, namely the suit agreement.\n<\/p>\n
\t\t24. In this case, except the interested testimony of P.W.1 the
\nappellant\/plaintiff himself, there is no other evidence to show that the third
\ndefendant did have notice of the existence of the suit agreement prior to the
\ndate of sale under Ex.B.1 in his favour. D.Ws.1 and 2 have deposed in clear
\nterms that they did not reveal the existence of the suit agreement to the third
\ndefendant. No other evidence is available on the side of the appellant\/plaintiff
\nto support and corroborate the testimony of P.W.1. On the other hand, the
\nlearned counsel for the appellant would rely on the admitted fact that the
\nproperties adjoining the suit property belonged to the third respondent\/third
\ndefendant and contend that he should have got knowledge of the agreement
\nregarding the suit property. His further contention is to the effect that the
\nproperty was sold under Ex.B.1 to the third respondent\/third defendant for a sum
\nof Rs.4,400\/- alone, whereas the agreed sale price as per Ex.A.2 was much more,
\nnamely Rs.7,000\/- and that the same will give rise to an inference that the
\nthird defendant should have got knowledge of the existence of the suit
\nagreement. The mere fact that the property was purchased by the third
\ndefendant\/third respondent for a lesser amount than the one fixed in the suit
\nagreement is not sufficient to impute knowledge of the suit agreement to the
\ndefendants prior to or at the time of execution of the sale in his favour. The
\nCourts below have correctly applied the ratio found in Arunachala Thevar vs.
\nGovindarajan Chettiar<\/a> reported in 1977 (Vol.90) LW 543 and came to the
\nconclusion that the third respondent\/third defendant was a purchaser for value
\nin good faith and without notice of the existence of the suit agreement. The
\nwell considered finding of the Courts below in this regard does not warrant any
\ninterference in this second appeal. Therefore, the appeal is bound to fail in
\nrespect of the second substantial question of law also. There is no merit in the
\nsecond appeal and the same deserves to be dismissed.\n<\/p>\n
\t\t25. In the result, this Second Appeal is dismissed. There shall be
\nno order as to payment of costs. Consequently, the connected miscellaneous
\npetition is also dismissed.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
1.The Subordinate Judge,
\n  Tuticorin.\n<\/p>\n
2.The Additional District Munsif,
\n  Tuticorin.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Auadai Sangu vs K.Durairaj on 21 September, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21\/09\/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.524 of 1997 and C.M.P.(MD).No.5826 of 1997 Auadai Sangu … Appellant Vs. 1.K.Durairaj 2.Madasamy Thevar 3.T.R.Subbiah … Respondents PRAYER Second Appeal filed under Section 100 of the Code […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-171237","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAuadai Sangu vs K.Durairaj on 21 September, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/auadai-sangu-vs-k-durairaj-on-21-september-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Auadai Sangu vs K.Durairaj on 21 September, 2007 - 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