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Gadde Sitayya and anr. Vs. Gadde Kotayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1932Mad71
AppellantGadde Sitayya and anr.
RespondentGadde Kotayya and ors.
Cases Referred and Kondiba v. Nana
Excerpt:
.....to find on the merits that the appellant's claim must fail as regards the whole of gangayya's property we think it best not to dispose of the appeal upon the ground of this oversight or to allow it to be remedied by the appropriate procedure. 4. in order that this agreement may prevail against the subsequent transferee, the transferee must under section 27, specific relief act show that he is a transferee tor value who has paid his money in good faith and without notice of the original contract. the claim is made under section 69, contract act, or, if that is held not to apply, upon general grounds of justice, equity and good conscience. we think that, whatever the ground for allowing such a claim, an indispensable condition must be that the claimant made the payment in good faith..........passed by the subordinate judge of kistna in four connected suits. there were three brothers, kotayya, nagayya and gangayya, of whom gangayya died in november 1918, while kotayya and nagayya survive. in 1910 they divided their property, each thus becoming possessed of 10.10 acres. it appears that thereafter nagayya and gangayya lived together, and they jointly entered into a mortgage of their property which formed the subject-matter of the decree against them in o. s. 378 of 1916 on the file of the ellore district munsif's court. gangayya died shortly afterwards and execution was taken in respect of the whole property against nagayya. there was a court sale which was successfully impeached, and when the property was brought to sale a second time it was privately purchased by one.....
Judgment:

Curgenven, J.

1. These four appeals are from decrees passed by the Subordinate Judge of Kistna in four connected suits. There were three brothers, Kotayya, Nagayya and Gangayya, of whom Gangayya died in November 1918, while Kotayya and Nagayya survive. In 1910 they divided their property, each thus becoming possessed of 10.10 acres. It appears that thereafter Nagayya and Gangayya lived together, and they jointly entered into a mortgage of their property which formed the subject-matter of the decree against them in O. S. 378 of 1916 on the file of the Ellore District Munsif's Court. Gangayya died shortly afterwards and execution was taken in respect of the whole property against Nagayya. There was a Court sale which was successfully impeached, and when the property was brought to sale a second time it was privately purchased by one Sitayya for a sum of Rs. 6,500 and the Court sale was averted by a deposit Under Order 21, Rule 89, Civil P. C. In O.S. No. 95 of 1922, to which A. S. No. 260 relates, the purchaser Sitayya sued to recover possession of the property which he had thus purchased. The other brother Kotayya contested the claim as defendant 1, and Nagayya as defendant 6 set up various pleas including one of lack of consideration. The case of defendant 1 in that suit was that a half-share of Gangayya's property devolved upon him as heir, and that prior to the date of the sale deed he had agreed with Nagayya to purchase the other half-share and had paid a sum of Rs. 2,000 in pursuance of that agreement. Before turning to these contentions, the latter of which forms the main question before us, it may be added that O.S. 21 of 1923, corresponding to Appeal No. 437, is a suit by Kotayya against Nagayya and Sitayya for specific performance of his agreement and O.S. 20 of 1923, corresponding to Appeal No. 436, is a similar suit by a Mahomedan lady (defendant 8 in O.S. 95) in respect of an area of 2. 25 acres out of Nagayya' s own land. The fourth suit O.S. 95 of 1923 (Appeal No. 438) was by Sitayya for contribution against Kotayya in respect of the payment by him of debts owing by Gangayya.

2. Dealing now with Appeal No. 260, the purchaser Sitayya, who is the appellant, claims the whole of Gangayya's 10. 10 acres, which are now admittedly in the possession of Kotayya, upon the ground that by a reunion with Gangayya, Nagayya had become entitled to it, upon his brother's death, by survivorship. The learned Subordinate Judge has decided this question of reunion in the negative, and Mr. T.R. Venkatarama Sastri confesses himself unable seriously to challenge this finding. Accordingly the most that the purchaser can have acquired under his sale deed would be the half-share of Gangayya's property devolving upon Nagayya as heir. Kotayya however disputes his title even to this half-share upon the allegation, already referred to, of a subsistent agreement to sell. Some confusion has been created by the circumstance that in the grounds of appeal an area of 5. 05 acres only of Gangayya's land has been included whereas the appeal grounds embrace both the half-share to which the alleged agreement relates and the other half-share which fell to Kotayya directly as heir. Inasmuch however as we are going to find on the merits that the appellant's claim must fail as regards the whole of Gangayya's property we think it best not to dispose of the appeal upon the ground of this oversight or to allow it to be remedied by the appropriate procedure.

3. The first point which accordingly arises for decision is whether the agreement alleged by defendant 1 Kotayya is true.

* * * * * *

3. We think there is no doubt whatever that the agreement pleaded by Kotayya both as a defence to Sitayya's suit for possession and as a basis for his own suit for specific performance is true.

4. In order that this agreement may prevail against the subsequent transferee, the transferee must Under Section 27, Specific Relief Act show that he is

a transferee tor value who has paid his money in good faith and without notice of the original contract.

5. There has been some discussion with regard to the onus of proving or disproving notice. There are cases Under Sections, 48 and 50, Registration Act (providing for the priority of registered documents as against earlier oral agreements or unregistered documents) which, while holding that these provisions operate subject to no notice having been received, have laid down that the onus of proving notice is upon the party alleging it: see Chinnappa Reddi v. Manickavasagam Chetti, [1902] 25 Mad. 1 and Magoo Brahma v. Bhoti Das A.I.R. 1914 Cal. 331. These cases do not however proceed upon the terms of Section 27, Specific Relief Act. The case which directly applies those provisions, and which we propose to follow is Thiruvenkatachariar v. Venkatachariar, A.I.R. 1914 Mad. 634. The learned Judges point out, in strict conformity with the terms of the statute, that the case of Himatlal Motilal v. Vasudev Ganesh, [1912] 36 Bom. 446, decides: 'that the burden of proving (a) that the subsequent purchaser paid valuable consideration (b) that he acted bona fide and (c) that he had no notice lies on that purchaser, assuming, of course, that the plaintiff has established the prior agreement to sell, alleged in his plaint.

6. In these proceedings therefore it is for Sitayya to show that he took his sale deed in ignorance of the earlier agreement. Even if however the burden were on the other party, we think that the finding of the learned Subordinate Judge upon this point must be supported, though perhaps not for the reasons which he assigns. We do not think that the authorities go so far as to lay down that where there is a tenant in possession of the property it is incumbent upon an intending, purchaser not only to ascertain what the tenant's rights are, but also who is his lessor and what is that lessor's title: see Hunt v. Leuck, [1902] 1 Ch. 428, Gunamoni Nath v. Busunt Kumari, [1889] 16 Cal. 414 and Kondiba v. Nana, [1903] 27 Bom. 408. The mere circumstance therefore that there was in possession a tenant who, if questioned, would have named Kotayya as his lessor is not by itself sufficient to dispose of this point. Apart from that however there are abundant, reasons for concluding that the fact of the agreement must have reached Sitayya's ears. Sitayya, on the plea of ill-health, did not appear as a witness. His son-in-law, P. W. 1, says that there is only a wall between Nagayya's house and theirs and their lands are half a furlong apart. At the time of the police inquiry into the dispute about possession Sitayya was Village Munsif, and it is extremely unlikely that he should not have heard all about it. The writer of his sale deed, P. W. 5, actually attested the statement made by the tenant in these proceedings. A witness who took part in cultivating Gangayya's land, D. W. 4, and who deposes that Kotayya gave it out, speaks to Sitayya's knowledge of this arrangement. Altogether it is impossible to suppose that Sitayya was in ignorance of the disputes about this property and he must have known in taking the sale deed that his purchase was a highly speculative one. WE agree in deciding this point against him and his Appeal No. 260 of 1925, accordingly fails and is dismissed with costs of respondent 1.

7. It follows that Appeal No. 437 of 1925, which is filed by Sitayya against the decree for specific performance granted to Kotayya in O. S. No. 21 of 1923, must also be dismissed with costs of respondent 1.

8. In Appeal No. 436, in which the appellant is again Sitayya, the same questions arise with regard to a prior agreement alleged to have been entered into by Nagayya in favour of the plaintiff, Dariya Bibi, and of Sitayya's notice of that agreement;. In this instance the agreement, and indeed the two preceding agreements, which it superseded, are in writing, and no serious contention can be raised as to their truth. On the question of notice the learned Subordinate Judge has returned an answer against the subsequent purchaser on the bare ground that he made no inquiry of the tenant in possession. As we have said, we do not think that this by itself is sufficient to dispose of the matter. It still lies upon Sitayya however to show that before entering into the transaction, he made some inquiry. Not only has he omitted to give evidence in this case, but in a prior statement, Ex. 7, made in the course of a possession case, he acknowledged that he made no inquiry as to who was in enjoyment of the land or who paid the taxes upon it. The tax receipts, Exs. 11 series, show that the assessment upon the land had been paid by Dariya Bibi from 1915 to 1924, and it is most improbable that the Village Munsif should have been unaware of this fact which, if known, ought to have put him upon inquiry. Lastly, there is the positive evidence of Dariya Bibi's husband (D. W. 1) that Sitayya was aware that his wife had been owner of the property, as he calls it, and had been in enjoyment of it for ten years. In all these circumstances we see no reason to disturb the finding of the lower Court upon this point, and we dismiss this appeal with costs of respondents 1--5.

9. The remaining Appeal No. 438, arises out of a suit for contribution filed by Sitayya against Kotayya. The claim is made Under Section 69, Contract Act, or, if that is held not to apply, upon general grounds of justice, equity and good conscience. We think that, whatever the ground for allowing such a claim, an indispensable condition must be that the claimant made the payment in good faith believing in his title to property, and upon this ground alone the claim must fail in view of the finding already recorded. We dismiss this appeal also with costs.

10. Costs in all cases to come out of the estate of Sitayya.


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