S. Ratnavel Pandian, J.
1. The unsuccessful plaintiffs in O.S. No. 41 of 1969 on the file of the Sub-Court, Thanjavur, are the appellants. They filed the suit against the respondents-defendants 1 to 4 for specific performance of an agreement of pale, by directing them to execute one sale deed in favour of the first plaintiff in respect of items 1 to 36 of plaint A schedule and another sale deed in favour of the second plaintiff in respect of items 1 to 21 of plaint B schedule, for possession of the said items of properties with future mesne profits and for costs. As per the plaint allegations defendants 1 to 3 owners of the plaint schedule properties entered into an agreement on 10th March, 1968 with the first plaintiff under Exhibit A-1, agreeing to sell an extent of 14 acres 521/2 cents for a consideration of Rs. 500 per month and execute the sale deed on or before 10th September, 1968. On the said date of agreement, the first plaintiff paid an advance of Rs. 2,000. It is alleged that it was also provided in the said agreement that in case defendants 1 to 3 failed to execute the sale deed on the stamp papers to be furnished by the first plaintiff and register the sale deed within the period as mentioned above, the first plaintiff was entitled to deposit the balance of the sale, price and treat the agreement itself as the sale deed and have it registered. Therefore, with the consent and knowledge of defendants 1 to 3, the first plaintiff purchased stamp papers and wrote two sale deeds on 30th July, 1968, one in favour of the first plaintiff and the other in favour of the first plaintiff's son, his nominee, the second plaintiff herein. Defendants 1 and 2 were also representing to the first plaintiff that the third defendant was absent from the station and on his return the paid sale deed written by the first plaintiff would be executed by all of them. In the meanwhile, the defendants have received a sum of Rs. 4,000 in all in addition to the advance of Rs. 2,000, from the first plaintiff, representing that they had to discharge some family debts. But, the defendants did not execute the sale deeds as promised. Thereafter, the fourth defendant who knew well the terms of the aforesaid agreement, came with the first defendant on 1st August, 1968, and requested the plaintiffs to exclude an extent of 41/2 mahs of land in Ammapatnam Pangu from the properties to be purchased by the plaintiffs, since he wanted to purchase the said extent of land for a higher price. The first plaintiff did not accede to that request, but insisted on the total implementation of the agreement in his favour. As per the terms of the agreement, the balance of sale price due from the first plaintiff is Rs. 15,787.50. Thereafter, the plaintiffs learnt that by about 3rd September, 1968, defendants 1 to 3 had actually executed a sale deed in favour of the 4th defendant in respect of the suit properties for an ostensible consideration of Rs. 21,000 the actual sale price paid by him being Rs. 26,000. In fact the said sale was benami for the benefit of one Ratnam and the funds were also provided by the said Ratnam. Since the fourth defendant is a purchaser with knowledge of the plaintiffs' agreement, he should be deemed to hold the property in trust for the benefit of the plaintiffs and is bound to jointly execute along with defendants 1 to 3, the sale deeds in favour of the plaintiffs in respect of the suit properties. The first plaintiff sent a notice under Exhibit A-6 calling upon the defendants 1 to 3 to execute the sale deeds. While defendants 1 to 3 did not send any reply thereto, the 4th defendant sent a reply under Exhibit A-7, claiming to be a bond fide purchaser of the properties for value.
2. According to defendants 1 to 3, Palaniappa Thevar who promised to get them all financial aid for the construction of their family house, took the first defendant to the first plaintiff and asked the first plaintiff to purchase the properties of defendants 1 to 3 and the first plaintiff agreed to purchase them and obtained the signature of the first defendant on stamp papers in which something was written. The first defendant was informed that the properties belonging to defendants 1 to 3 were agreed to be sold under the document and that the sale had to be completed within a period of three months from that date. The contents of the agreement were not read over to the first defendant and he was also not aware of the contents. According to them, the first defendant received Rs. 2,000 when the agreement was signed. The signature of defendants 2 and 3 were obtained at different places later and therefore the said agreement was not duly executed by defendants 1 to 3 and the same had been obtained by fraud and undue influence. It also contains material alterations. The agreement was that the sale should be completed before June and if that was not so completed, the first defendant was given liberty to sell the properties to any other person. When Palaniappa Thevar took the first defendant to the first plaintiff, the signature of the first defendant was obtained on a promissory note where the amount was mentioned as Rs. 3,000. The first defendant was also asked to sign a letter purporting to be a request to defendants 2 and 3 to sign the document. The first defendant signed in blank papers. The first-defendant approached Palaniappa Thevar and the first plaintiff to have the sale completed. But, the first plaintiff, being unable to complete the sale, asked the first defendant to have the sale effected to anyone else. The first plaintiff in fact had not the requisite funds to complete the sale before the end of June. Thereafter, defendants 1 to 3 have sold the properties for Rs. 21,000 to the 4th defendant on 10th June, 1968. It is false to state that the other debts were discharged by the first defendant out of the funds furnished by the first plaintiff. There was no talk between the first plaintiff and the 4th defendant as alleged. Thus, the case of defendants 1 to 3 is that the plaintiffs have not come forward with true and correct facts and the suit should be dismissed with costs.
3. The 4th defendant, in his separate written statement, stated that he was not at all aware of the alleged agreement dated 10th March, 1968 between the first plaintiff and defendants 1 to 3, that he is a bona fide purchaser for value of the suit properties from defendants 1 to 3, that he purchased the suit properties for his own benefit with his own funds and that therefore the suit should be dismissed.
4. On the above pleadings the following issues were framed by the trial Court:
1. Whether the agreement dated 10th March, 1968 was executed by defendants?
2. Whether the first plaintiff agreed to have the sale deed completed in three months?
3. Whether the payments to first defendant as alleged in the plaint are true?
4. Whether the default was committed by the plaintiffs or defendants 1 to 3?
5. Whether the agreement dated 10th March, 1968 has been materially altered and hence not enforceable?
6. Whether the 4th defendant is a bona fide transferee for value and without notice of the prior agreement in favour of the first plaintiff?
7. Whether the properties have been properly described in the plaint?
8. To what relief are the plaintiffs entitled?
5. Plaintiffs 1 and 2 examined themselves as P.Ws. 1 and 3 and five other witnesses including the said Palaniappa Thevar, P.W. 7, and marked Exhibits P-1 to P-12, while on the defendants' side, defendants 1, 3 and 4 examined themselves as D. Ws. 1 to 3 and marked Exhibits B-1 to B-9. The trial Court found issues 1 to 5 and 7 in favour of the plaintiffs. But on issue 6 it found that the 4th defendant was a bona fide purchaser for value without notice of the agreement Exhibit A-1. In that view, the plaintiff's suit as against defendants 1 to 3 has been dismissed without costs.
6. Mr. T.R. Ramachandran, learned Counsel for the appellants, would contend that the lower Court has erred in holding that the 4th defendant is a bona fide purchaser for value without notice of the agreement of sale Exhibit A-1. According to him, the evidence of the 4th defendant as D.W. 3 would clearly establish that the fourth defendant was well aware of Exhibit A-1 and therefore, he cannot be said to be a bona fide purchaser for value and that the non-production of the original title deeds and the failure of the 4th defendant to take an encumbrance certificate are the other indicia evidencing that the 4th defendant was aware of Exhibit A-1 and therefore under these circumstances, the 4th defendant is not entitled to the protection under Section 19(b) of the Specific Relief Act, 1963. He would further argue that the lower Court has materially erred in casting the burden on the plaintiffs to prove that the 4th defendant is not a bona fide purchaser for value without notice of the prior agreement and that the Court below should have accepted the uninterested oral testimony of the plaintiffs' witnesses in preference to the evidence adduced on the side of the defendants. Finally, he would urge that it is for the 4th defendant to show that he is a bona fide purchaser for value without notice of Exhibit A-1, the prior agreement, when once the plaintiffs prove that Exhibit A-1 is a valid and enforceable document. Resisting the above argument, Mr. Gopalaswami Iyengar, appearing for the respondents, would submit that the 4th defendant has purchased the properties in question for valuable consideration in good faith and without notice of any prior agreement like Exhibit A-1. Counsel for the defendants would submit that the 4th defendant had adduced satisfactory and acceptable prima facie evidence that he is a bond fide transferee for value without notice of the prior contract and that the onus on the subsequent transferee is negative in character and when once the said burden of proof cast on the 4th defendant is discharged, then it shifts on the plaintiffs to establish that the 4th defendant would not be entitled to any exception under Section 19(b) to the general rule enunciated in Clause (a) of the said section. He would rely on the recitals in certain documents and the oral evidence let in by the defendants and contend that the 4th defendant in this case has well established the circumstances which would allow him to retain the benefit of the transfer in his favour and as the plaintiffs have not shown that the defendants have been guilty of any secrecy or fraud in the transaction with the actual or constructive notice of the prior agreement Exhibit A-1, on the basis of which the plaintiffs seek to invalidate the transfer in favour of the 4th defendant, the judgment of the lower Court cannot be assailed. Thus, to sum up, the arguments of the learned Counsel on both sides rest on the question as to what is the nature and quantum of proof that is cast on a subsequent transferee who claims the benefit of the exception under Clause (b) of Section 19, for retaining the benefit of the transfer in his favour, and what is the nature of proof that would then shift on the plaintiff who seeks to invalidate the said transfer.
7. Now we shall find out the legal position with reference to the burden of proof that is expected from either of the parties. Section 19, Clauses (a) and (b) of the Specific Relief Act, 1963, reads as follows:
Except as otherwise provided by this Chapter, specific performance of a contract, may be enforced against-
(a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract....
These clauses of Section 19 of the New Act corresponded to Clauses (a) and (b) of Section 27 of the old Specific Belief Act. On a plain reading of the above clauses, it appears that Clause (a) only lays down the general principle that it is only a party to the contract who can be sued. In other words, this clause recognises and follows the general rule that a stranger to the contract is not a proper or necessary party to a suit to en-Force it; but Clause (b) provides exceptions to the general rule, according to which a subsequent purchaser, in order to successfully resist a suit for specific performance of a prior agreement for sale, must establish that he is a purchaser for value without notice of the general agreement of sale and he paid the consideration money for the sale before he had notice of the prior agreement. Clause (b) of Section 19 requires four elements to be proved to successfully claim the benefit of the exception, viz.,
1. that the transfer is for value ;
2. that the consideration has been paid ;
3. that the subsequent transferee has taken the transfer in good faith; and
4. that both the purchase and the payment of the consideration had been made without notice of the prior contract.
The first two elements are positive and the rest are negative in character. Clause (b) lays stress upon the payment of money by the transferee in good faith and without notice of the original contract, and does not go further. It contemplates a transferee who has got a document executed, who had paid the money in good faith and without notice and who gets the document registered in accordance with the law, giving retrospective effect to the transaction from the date of the execution. Thus, where a buyer paid full money before the date of the execution of the deed in good faith and before the receipt of the notice of the contract of sale from a prior buyer, he is a transferee in law from the date of execution of the conveyance within the meaning of Section 19(b) of the Act and the transferee is protected.
8. 'Paid his money' : This expression has been discussed by several High Courts. In Himatlal Motilal v. Vasudev Ganesh I.L.R.(1912) 36 Bom. 446, the Bombay High Court held that in order to defeat the prior equity to which the plaintiff was entitled, the subsequent purchasers were bound to establish that they were bona fide purchasers for value and without notice and that if the entire price had not been paid and a security had been given for the payment of the balance of the purchase price, the defendant cannot resist the claim for specific performance.
9. In Gudur Renga Reddi v. Gundala Pichai Reddi 1 L.W. 879 : 25 Ind.Cas. 973 : A.I.R. 1915 Mad. 37, it was held that this phrase 'paid his money in good faith' in Section 27 of the old Act did not cover the case of a person who, after the execution of his conveyance and before its registration, had notice of a prior contract to sell the property to a third person and who does not pay any cash for any sale but takes it in adjustment of a prior outstanding mortgage in his favour. In that case it was found that before the purchaser had notice of the agreement after the execution of his sale deed, no endorsement of discharge was made on the mortgage bond towards the adjustment of which the sale was taken. Under those circumstances, this Court held that the recital in the sale deed that the sale amount was to be adjusted towards the mortgage, does not operate as an adjustment so as to put the purchaser in the same position as a man who 'paid his money in good faith'.
10. Horwill, J., in Marwadi Sumermal Jamatraj v. Thukkappa 57 L.W. 277 : (1944) 1 M.L.J. 376 : A.I.R. 1944 Mad. 391, while discussing the real import of the term 'paid his money' has referred to the above two observations with approval, and has held as follows:
Where, however, a portion of the consideration was in adjustment of an outstanding debt and the remainder was paid in cash, the transferee thereby paid to the transferor all that had to be paid under the contract and can therefore liberally be said to have paid his money.
In Arunachala Thevar v. Madappa Thevar : AIR1936Mad949 , where the consideration for a subsequent sale consisted of payment of cash in part and discharge of certain debts due to the purchasers and to their mother, it was held by Varadachariar, J., that these debts must be treated as discharged by the execution of the sale deed and on the footing that they also counted as payment.
11. A Division Bench of this Court, consisting of Ramamurthi and Alagiriiswami, JJ., in Veeramalal Vanniyar v. Thadikara Venkayya : AIR1968Mad383 , after referring to various decisions on the point, including Marwadi Sumermal Jamatraj v. Thukkappa 57 L.W. 277 : (1944) 1 M.L.J. 376 : A.I.R. 1944 Mad. 391 and Arunachala Thevar v. Marappa Thevar A.I.R. 1936 Mad. 949 has held that it is the actual payment of the money and not a mere agreement to pay the money which alone confers the right so as to prevail over a prior agreement of sale. From a reading of the judgment in Veeramalai Vanniyar v. Thadikara Venkayya : AIR1968Mad383 , it is clear that a typographical mistake has crept in the judgment. From the principles laid down in the judgment, we are sure that the learned Judges should have meant only : AIR1944Mad391 and not : AIR1944Mad421 as found in the judgment since the former alone lays down the principles relating to the inter-predation of Section 27(b) of the old Act and approves the decision in Himatlal Motilal v. Vasudev Ganesh I.L.R.(1912) 36 Bom. 446, while the latter does not at all deal with that point. Therefore, the reference to : AIR1944Mad421 is a mistake for : AIR1944Mad391 .
12. This Court, in another decision in Smt. Mary Joseph v. Yakub Mohamed Haj Musa and Co. : AIR1959Mad86 , held that the phrase 'paid his money' means 'paid money or money's worth' and therefore it could not be said that the defendant had not paid the consideration in money but only by adjustment of a debt or that he could not claim the benefit of Section 27(b) of the old Act.
13. The sum and substance of the above cited decisions is to the effect that a transferee should have paid the entire consideration money to the owner before he was put on notice of the prior agreement of sale, that such payment of consideration need not be in money only, but may be either in money or money's worth or may be by way of some adjustment, but there must be actual payment or adjustment and not merely a promise to pay or a mere agreement for adjustment, that the agreement cannot merely remain executory but must be executed and that nothing should remain to be paid or to be adjusted. However, we make it clear that no hard and fast rule can be laid down regarding the ambulatory nature of the burden of proof in cases of this type, which is initially cast on the transferee, and each case as it arises must be decided according to its own peculiar facts, circumstances and probabilities; but, in scanning the circumstances and weighing the probabilities, the Court should give due regard to the consensus of legal decisions laid down on the point.
14. What is good faith:
The expression 'good faith' is not defined in the Act. Section 3(22) of the General Clauses Act, 1897 defines 'good faith' thus:
A thing shall be deemed to be done in 'good faith' where it is in fact done I honestly, whether it is done negligently I or not.
Though the original Specific Relief Act, 1877 (which has now been renumbered as the 1963 Act) was passed earlier In point of time to the General Clauses Act and as such the definition in the General Clauses Act would not expressly be applicable to the terms used in the Specific Relief Act, there are several judicial authorities which have applied the definitions in the General Clauses Act to the Specific Relief Act on the ground of equity and good conscience. The question of good faith is necessarily a question of fact. The test to be applied to find out whether there is good faith or not is to see whether the person concerned has acted honestly or not. In short the essence of 'good faith' is the honesty of intention. Whether a purchaser has or has not acted in good faith is a question of fact, which has to be determined from the materials placed and the surrounding circumstances appearing in the case.
15. 'Without notice' : The word 'notice' is defined in Section 3 of the Transfer of Property Act thus:
A person is said to have notice of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
This definition includes both actual and constructive notice. A bona fide contract, whether oral or written, prevails against a subsequent registered conveyance if the transferee had notice of the prior contract. The legal presumption of knowledge or notice arises from:
1. wilful abstention from an enquiry or search;
2. gross negligence;
3. registration, omission to search the register kept under the Registration Act, may amount to gross negligence so as to attract the consequences which result from notice;
4. actual possession; and
5. notice to an agent.
A purchaser is deemed to have notice of anything which he has failed to discover either because he did not investigate the title properly or because he did not enquire for deeds relating to the property. The onus of proof lies upon the party seeking to defeat the prior contract, to adduce prima facie evidence that he is a bona fide transferee for value without notice. But, the burden is light and he may discharge it by merely denying the factum of notice on oath. In any case, very little evidence is required on his part to prove this fact which is negative. However, each case will have to be examined on its own facts, to find out whether the onus has been fully and satisfactorily discharged or not. If A enters into a contract of sale with B and finds that C is in possession of the property to be sold, then it is incumbent on A to make an enquiry on what terms C is in possession of the property so as to find out whether there is any prior agreement between B and C for transfer of the property in C's favour. In Veeramalai Vanniar v. Thadikara Fenkayya : AIR1968Mad383 , a Division Bench of this Court, relying on Durga Prwad v. Deepchand : 1SCR360 has observed that it is also the duty of the subsequent purchaser to enquire from the person in possession as to the precise character in which he was in possession at the time when the subsequent sale transaction was entered into.
16. Onus of Proof : It is one of the recognised canons of jurisprudence and an accepted principle that ordinarily when a party claims exemption from a general provision of law, the onus lies upon him to prove that he comes within the exception. Section 19(b) lays down a general rule that the original contract maybe specifically enforced against a subsequent transferee, but allows an exception to that general rule not to the transferor, but to the transferee, and, therefore, it is clearly for the transferee to establish the circumstances which would allow him to retain the benefit of the transfer which prima facie he had no right to get. Thus, it is clear that the onus is upon the subsequent purchaser to prove that he is a transferee for value who had paid his money in good faith and without notice of the earlier contract so as to bring himself within the exception provided under Clause (b) of Section 19. In Bhup Narain Singh v. Gokulchand , Lord Thankerton, who spoke for the Board, while dealing with Section 27 of the old Act corresponding to Section 19 of the new Act, has observed
It is clearly for the transferee to establish the circumstances, which will allow him to retain the benefit of transfer which prima facie he had no right to get. Further, the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie and the provisions of Sections 103 and 106 of the Evidence Act, 1872, have a bearing on the question.
In Adinaraydna v. Jagannatha : (1949)1MLJ557 , Viswanatha Sastri, J., an eminent Judge of this Court, while dealing with the question of proof under Section 27(b) of the old Act, has expounded the principle as follows:
It lies upon the party seeking to defeat a prior contract for the sale of land to prove that he is a purchaser for value bona fide and without notice of the previous contract. The initial burden is upon the purchaser. It may be that very little evidence on the part of the purchaser is sufficient to discharge the onus in a particular case.
In D. Gowri Reddi v. Govinda Reddi (1967) 1 An.W.R.378, following Bhup Narain Singh v. Gokulchand it was held that it is for the transferee to establish the circumstances which will allow him to retain the benefit of a transfer which prima facie he had no right to get. A Division Bench of the Andhra Pradesh High Court, in another decision Vomisetti Papa Rao v. Venkatarama (1970) 2 An.W.R. 280, observed that the burden is on the transferee to show that he is a bona fide purchaser for value without notice and that he paid the entire consideration amount before he knew about the prior agreement of sale. In Durga Prasad v. Lilavati : AIR1972All396 , the following observation was made:
It is true that the initial burden is always on the vendee to show that he had no knowledge of the agreement. But, the vendee has only to discharge this burden by leading a negative evidence. The negative evidence can only consist of his own statement denying the fact that he had knowledge of the same. As soon as the vendee denies knowledge of the notice, the burden is discharged and then the burden shifts on the vendor to prove that the vendee had the notice of the earlier agreement.
A Bench of this Court in Veeramdai Vamniyar v. Thadikara Venkayya : AIR1968Mad383 , has held that the burden of proof is upon the subsequent purchaser to establish the conditions laid down under Clause (b) of Section 27 of the old Act, in order that his rights may prevail over the prior agreement of Sale. Therefore, in our view, when a subsequent transferee claims the protection under Section 19(b) of the new Act, as a person who has paid money in good faith and without notice of the original contract, the burden of establishing the conditions enumerated in the said section lies upon him. But, he has only to establish this burden by leading a negative evidence. Very little evidence, and in certain circumstances a mere denial, regarding want of knowledge of the prior contract would discharge this onus which is negative in character. Then, the onus would shift on the person who seeks to defeat the sale in his favour. In other words, this burden is ambulatory, and so, when once the initial burden cast on the subsequent transferee (defendant) is satisfactorily discharged, the burden shifts on the other party (plaintiff) to prove that the defendant had notice of the earlier agreement.
[The discussion of the evidence is omitted : Ed.]
* * * * *
17. After carefully scrutinising and scanning the evidence of the parties, we are unhesitatingly inclined to accept the evidence of D.Ws. 1 and 3 (defendants 1 and 4) and hold that the 4th defendant did not have any notice of the prior agreement in favour of the plaintiffs. There cannot be any legal presumption of knowledge or notice in this case since we are of the view that the 4th defendant cannot be said to have wilfully abstained himself from making any enquiry or to have been grossly negligent in any manner while purchasing the property, nor is there any evidence to show that the property was in the possession of any other person than the vendors themselves so as to put the 4th defendant on notice as provided under Section 3 of the Transfer of Property Act. As regards the omission to search the register kept in the office of the Registrar, that point does not arise in this cage since Exhibit A-1 is only an agreement of sale which is not registered. Admittedly, there is no other encumbrance in respect of the property. Further, it is not the case of the plaintiffs that there was any notice to anybody on behalf of the 4th defendant so as to put him on notice of Exhibit A-1.
18. From the above discussion, we are in agreement with the finding of the trial Judge, that the 4th defendant did not have notice of Exhibit A-1. Thus, it is clear in the instant case that the 4th defendant has established all the four elements enumerated in Section 19(b) of the Specific Relief Act, 1963, as indicated supra so as to enable him to claim the protection under the said Clause (b), and to retain the benefit of the transfer in his favour. The plaintiffs have not only failed to shatter the evidence of the 4th defendant, but have also miserably failed to establish their case by placing convincing and satisfactory materials to the satisfaction of this Court.
19. In the result, the judgment and decree of the trial Court are confirmed and this appeal is dismissed with costs of the 4th defendant.