1. The plaintiffs' suit for specific performance was dismissed by the Munsiff of Madhugiri. His judgment was reversed on appeal by the Subordinate Judge of Tumkur who has made a decree in favour of the plaintiffs as prayed for. Defendants 2 to 5 have come up in second appeal.
2. The plaintiffs' case is that defendant 1, who was admittedly the owner of the land, had agreed to sell the schedule property to him for Rs. 850/-. He had received an advance of Rs. 100/- and had executed a consideration receipt Ex. A dated 20-6-47, promising to receive the balance of Rs. 750/- before the Sub-Registrar after executing a proper registered sale deed. The suit was brought by the plaintiffs on 7-7-1947 originally against defendant 1.
Some days later by an application dated 14-3-1947 the plaintiff sought for permission and impleaded defendants 2 to 5 as supplemental defendants on finding that defendant I had on 7-7-1947conveyed the suit property to them for Rs. 1,125/-and executed a sale deed Ex. C in their favour.Defendant 1 was ex parte. Defendants 2 to 5denied knowledge of the prior agreement infavour of the plaintiffs and pleaded that theywere bona fide purchasers for value withoutnotice of that prior agreement and that theplaintiffs could, not therefore enforce the sameagainst them.
3. Both the Courts below have found that Ex. A is genuine and that defendant 1 had agreed to convey the suit property to the plaintiffs on 20-6-1947 and received Rs.100/- as advance. That finding is not challenged before me. It cannot also be seriously disputed that the plaintiffs have all along been ready and willing to perform their part of the contract by paying the balance of the purchase money and obtain a sale deed.
Plaintiff 2 examined as P.W. 5 has sworn that on the fourth day after the date of Ex. A the plaintiffs tendered the amount of Rs. 750/- to defendant 1 in his village, Maruvekere, and asked him to execute the sale deed. Defendant 1 then took time for 2 or 3 days. They went to him again after 2 days and defendant 1 told them that he would execute the sale deed on the last date agreed and not earlier. On the final due date they went to defendant 1 in the morning and asked him to execute the sale deed. He asked them to go to Madhugiri, which is said to be about six miles away, in advance and that he would meet them near the Sub-Registrar's office.
They waited near the Sub-Registrar's office till 4 p.m. that day and as he did not turn up they consulted a lawyer and sent the notice Ex. B dated 30-6-47 and a sum of Rs. 750/- to defendant 1 by telegraphic money order. They accompanied the Postman along with P.W. 2 to defendant I who was then in his field, ploughing. Defendants 4 and 5 also were present there. The plaintiffs pointed defendant 1 to the postman who tendered the notice Ex. B and also offered the amount of the money order. Defendant 1 refused to receive both, and an endorsement was made to that effect as per Ex. D1. Then they filed this suit as soon as the Court opened on Monday 7-7-1947.
On 8-7-1947 defendant 1 had a notice Ex. F issued through a lawyer and returned the advance of Rs. 100/- by money order. In Ex. F he stated that as misunderstandings in the matter of sale had arisen, defendant 1 had returned the advance and wanted the karar back. Defendant 1 has not been examined by defendants 2 to 5, and there is no explanation as to what that misunderstanding was and how he was justified in backing out of the contract. The plaintiffs have therefore been thoroughly prompt and willing to perform their part of the contract by paying the balance of purchase money and taking the sale deed and are clearly entitled to obtain specific performance against defendant 1.
4. Under Section 27 of the Specific Relief Act specific performance of a contract may be enforced not only against either party thereto but also any other person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid this money in' good faith and without notice of the original contract; and it is contended for the plaintiffs that defendants 2 to 5 do not come within the exception contained in Clause(b) as they were aware of the earlier contract with the plaintiffs when they obtained their sale deed; The law is now clearly established that where a person claims to be a purchaser for value without notice of the original contract, the burden lies on him to prove that he fulfils that character. The wording of Clause(b) itself would imply this as the transferee would have to bring himself within the exception provided in that section in order to avoid his obligation under that section; see in this connection -- 'Himatlal v. Vasudeo Ganesh', 36 Bom 446 (A); -- 'Hemchandra v. Amiya Bala', AIR 1925 Cal 6KB); 'Lekh Singh v. Dwarka Nath', AIR 1929 Lah 249 (C); 'Tiruvenkatachariar v. Venkatachariar', AIR 1914 Mad 634 (Dl; 'Aruna-chalam Thevar v. Madappa Thevar : AIR1936Mad949 ; 'Kanhaya v. Ishwar Das', AIR 1923 Lah 108 (F); 'Naubat Rai v. Dhaunkal Singh', AIR 1916 AH 342 (G); 'Dharamdeo Singh v. Ram Prasad Sari', AIR 1918 Pat 526 (1) (H).
Mr. Iqbal Hussain, learned counsel for the appellants, has referred to a case decided by a single Judge in 'Sanga Thevar v. Thanukodi Ammal', : AIR1954Mad116 (I). That case merely lays down that in suits for specific performance there should be a specific allegation in the plaint that the plaintiff has been ready and willing to perform his part of the contract and that where the suit is against a subsequent purchaser the conditions mentioned in Section 27 (b) must be averred and proved. The learned Judge who decided that case has not referred to any of the above cases and has made only a casual reference to Sub-clause (b) to Section 27 and has observed that the conditions to be satisfied are that the plaintiff himself must prove that the 2nd defendant purchaser was not a purchaser for value and that he had not purchased it in good faith and that he had notice of the original contract, and has dismissed the suit on the former ground, viz., that the plaintiff was not ready and willing to perform his part of the contract and could not therefore claim specific performance. I am not therefore inclined to agree with his observation which appears to be more in the nature of 'obiter'.
That section is based on the equitable principle that from the time of the contract for the sale of the property the vendor is in the position of a trustee for the purchase in respect of the property and the purchaser is in a similar position as regards the purchase money, for which he has a lien, and every one claiming under any subsequently arising title including a later purchaser with notice will be liable to the same equities as the party from whom he claims or has purchased; see Collett's Specific Relief Act, 5th Edn., page 242. If the subsequent purchaser cannot show that he is a bona fide purchaser for consideration and without notice his purchase cannot override the previous contract; see 36 Bom. 446 (A).
5. Mr. Iqbal Hussain has urged that the burden of proving want of notice laid on the subsequent purchaser can only be a light one as he cannot be expected to prove a negative and that as has been pointed out in A.I.R. 1929 Lah. 249 (C) it is sufficient if he came to court and denied on oath that he had any such notice. Ordinarily it may be so; but the question whether a party has or has not proved want of notice is a question of fact, the determination of which would depend on the evidence and probabilities in each case. There may be cases where, for instance, possession of the property (as in 'Srinivasa Hatwar v. Srinivasa Upaghyaya', 52 Mys HCR 205 (FB) (J),) or of the original title deeds, or the conduct of the parties in relation to the transaction or the probabilities in the case or other circumstantial evidence may afford grounds for holding that the subsequent purchaser must be deemed to have constructive notice of the prior agreement of sale or by which such knowledge can be reasonably inferred.
6. Mr. Iqbal Hussain has next argued that in this case the evidence does not justify the finding of the learned Subordinate Judge that the Appellants must have had such notice. I have been taken through the entire evidence and on a consideration of the same and the probabilities I think the finding of the learned Subordinate Judge is correct and must be affirmed.
(After discussing the evidence of D W 3 relating to the hurry in subsequent transaction, his Lordship proceeded). The extraordinary hurry in a transaction of some magnitude between villagers is very unusual and raises a strong suspicion about its being a normal open and bona fide sale and shows that the defendants were anxious to complete the sale deed before the plaintiffs took any action. By that time the plaintiffs had got a lawyer's notice Ex. E issued to defendant 1 on 30-6-1947 and had also sent a telegraphic money order for Rs. 750/-, the balance of purchase money. That notice and the T. M. C. had been tendered to defendant 1 by the village postman in the presence of the village patel on 3-7-47. In these circumstances the agreement to sell in favour of the plaintiffs must have become a matter of public talk in the village of the plaintiffs and defendant 3 and it is difficult to believe that defendants 3 to 5 did not know of it
7. Defendant 3 also admits that defendant I represented on the morning of Saturday 5-7-1947 that there was a prior hypothecation over the property for Rs. 200/- and that he had a pronote debt of Rs. 100/- which had to be discharged; and defendant 3 told him to pay off these debts and then execute the sale deed. Defendants 3 and 4 made no further enquiries about any other encumbrances and accepted the plaintiffs' assurance and immediately started to Madhugiri with the object of buying a stamp paper and putting through the sale deed the same day. On Monday the deed Ex. C was written up and executed. By that time the previous mortgage deed and pronote were, according to defendant 3, produced by defendant 1 duly discharged. In Ex. C, however, it is recited that Rs. 208/- to discharge the mortgage and Rs. 76-8-0 to discharge the pronote debt. i. e., in all Rs. 284-8-0 had been left with the purchasers and only Rs. 804-8-0 was to be paid by them before the Sub-Registrar.
This discrepancy between the evidence of defendant 3 and the recital in Ex. C has not been attempted to be explained. Ex. C. recites that possession of the lands was delivered on its date and defendant 3 says it was so delivered. The sale deed was got written and executed and attested at Madhugiri with the help of a writer of that place and two attestors who were comparative strangers and not of the village in which the parties lived, though Sunday intervened. This secret way in which the sale deed was put through while the plaintiffs were making frantic efforts to secure a sale deed for themselves are circumstances from which it can be inferred that defendants 2 to 5 were not so innocent or ignorant of the prior contract.
Another circumstance which throws further suspicion about the bona fide and normal nature of the sale under Ex. C is that it does not contain the usual covenant for peaceful title and quiet enjoyment. This is particularly significant as defendants 2 to 5 apparently made no independent enquiries of their own as to the title and prior encumbrances over the properties.
8. Apart from these probabilities from which a Court may reasonably infer knowledge there are some positive circumstances on which the plaintiffs have relied which belie the defendants' plea of want of knowledge or notice.
P. W. 2, the Patel of Maruvekere, has sworn that he accompanied the postman Cheluva at the request of the latter to identify defendant 1 to whom he wanted to tender the postal registered cover Ex. B and a M. O. for Rs. 750/-. They were offered to defendant 1 in his field and he refused to receive them.
P. W. 2 has written the endorsement Ex. B-1 relating to the refusal. According to him there were also present at, the time defendants 4 and 5. The plaintiffs are also said to have been present then and P.W. 2 has sworn to this incident. Nothing has been elicited during this witness's cross-examination as to why his evidence should not be believed. Defendant 3 who says he was bom and bred up in Halehatti 3 furlongs from Maruvekere and defendant 4 who is a resident of Gollarhaiti say they do not know P.W. 2 at all, and defendant 3 says he has not even seen the Postman Cheluviah. Defendant 4 says he does not know Maruvekere or who is the Shanubhogue or patel of that village. Defendant 1 has not been examined and has not denied this incident.
The plaintiffs allege that the shanubhogue of Maruvekere, one Narasinga Rao, who is the scribe of Ex. A, later on helped defendants 2 to 5 to purchase the property from Deft. l, that he was present when Ex. c was written and supplied the necessary information such as survey numbers, boundaries, assessment etc., to be incorporated in the sale deed. This is vehemently denied by the defendants, p.w. 2 is the scribe of Ex. C and he has identified defendant 1 before the Sub-Registrar. He has sworn that he wrote that document, not in Chinnisab's mundy, but in the house of one Thimmappa where he was taken by Shanubhogue Narasinga Rao and defendants 2 to 5, and that Thimmappa is the elder brother of that Narasingarao and that the boundaries and survey numbers were furnished by the latter whom he has known for 8 or 10 years. He says Chinnisab was also present then and that he usually writes the latter's documents.
At that time 3 persons (It is alleged that they are the plaintiffs) whom he cannot identify as the plaintiffs came and remonstrated with Narasinga Rao as.to why he was acting in that manner when a suit had already been filed. Chinnisab who was examined on 22-1-49 admits that he was present in Court when P.W. 3 was examined on 12-1-49 and that he has written many documents for him. Nothing is elicited in the cross-examination of this witness to discredit him. Chinnisab has apparently taken a much more active part and knows much more of the facts of this case than he admits and it is clear he is helping the defendants and is interested in them. He admits that there was a case of murder against defendants 4 and 5 two or three years ago when he stood surety for them and got them released on bail.
Defendant 4 denies that D.W. 3 was surety for him though he admits there was a case of murder against him and that he was discharged in it. The attestors of Ex. C who are examined as DWs. 1 and 2 are residents not of these parties' villages but of Shankarpur and Madhugiri. They came to Chinnisab's mundy, it is said, on their business with him and were strangers to the parties to this sale. DW. I had gone to take DW 3 to his village to help him to buy some bulls. He is clearly a friend of DW 3 and he says he usually takes D.W. 3 with him for that purpose. D.W. 3 admits this. DW 2 went to collect some dues from DW 3 and has known him from 10 or 20 years. Chinnisab has not attested Ex. C though he says it was written in his mundy and the reason he gives is that as he signs in Urdu he thought he would have to go to the Sub-Registrar's office to get his attestation transliterated. This Is not a convincing explanation.
9. I think the evidence of PW 2 that Ex. C was written in the house of Thammiah, a brother of Narasinga Rao and with the latter's active help must be believed in preference to that of defendant 1 and his witnesses. It Is very usual (unusual?), though of course it Is not Impossible or by way of a general rule, that for villagers like the parties in this case to purchase or sell lands in the village without consulting the Patel or the shanubhogue if not with the assistance of one or other of them. The plaintiffs and defendant 1 had already approached the shanubhogue Narasingarao and got Ex. A written by him. Later on his assistance must have been sought by the defendants and hence their anxiety to deny his presence at the time of execution of Ex. C. Mr. Iqbal Hussain has urged that the plaintiffs have for the first time in their evidence referred to two other incidents which are not in their pleadings to impute knowledge to his clients.
One is that they bid for the property at private auction where they offered the highest price before Ex. A was executed and that they were actually present when Ex. A was executed. Plaintiff 3 as well as PW 4, one of the attestors of Ex. A, have deposed to this though PW 1, the other attestor, has not referred to it. The second is that the plaintiffs had protested to the Shanubhogue in the forenoon or afternoon of the 7th when the sale deed was still being written. Mr. Iqubal Hussain urges that they would have immediately gone to their lawyer and applied to the Court to have defendants 2 to 5 impleaded in the suit. The plaintiffs say that they did tell their counsel and that he said it could be done next day, and that they applied to implead defendants 2 to 5 within about a week later after getting a copy of the sale deed.
I think even if the plaintiffs suspected that the shanubhogue was trying to get the property conveyed to some one else they could not have, without more definite information, which they could only get by obtaining a certified copy of the sale deed, apply for impleading defendants 2 to 5 or any or all of them as possible alienees. Even apart from these two grounds I think there was abundant material for the learned Subordinate Judge to hold that defendants 2 to 5 are not 'bona fide' purchasers for value without notice and that their sale under Ex. C is therefore subject to the contract in the plaintiffs' favour.
10. In the result this appeal is dismissed with costs. (Advocate's fee in this Court Rs. 30/-.)
11. Appeal dismissed.