THE HON'BLE SRI JUSTICE K.C.BHANU A.S.No.76 OF 2008 JUDGMENT: This appeal is directed against the judgment and decree dated 12.10.2007 in O.S.No.76 of 2006 on the file of the Senior Civil Judge, Rayachoty, whereunder and whereby the suit filed for specific performance of an agreement of sale dated 31.08.2006 directing defendants 1 and 3 to execute a regular sale deed in favour of the plaintiffs in respect of the suit schedule property after receiving the balance of sale consideration of Rs.4,25,000/- and if the defendants failed to do so, the Court has to execute the same through process of law and direct the defendants 1 and 3 to deliver possession of the same, was decreed. 2. The facts of the case, in brief, are as under: 1st defendant who is owner of the suit property offered to sell away the same for Rs.5,90,000/-, received advance of Rs.1,65,000/- and executed an unregistered agreement of sale dated 03.09.2006 and that after the said transaction, 2nd defendant approached the plaintiffs and offered to purchase the suit property for a consideration of Rs.7,00,000/- and plaintiffs refused the said offer. On refusal by plaintiffs, defendants 1 and 2 threatened to face consequences. Subsequently, the plaintiffs came to know that the 1st defendant executed a nominal sale deed dated 16.10.2006 in favour of 3rd defendant. On that the plaintiffs got issued legal notice dated 16.10.2006. Defendants 2 and 3 got issued reply dated 30.10.2006 admitting their knowledge about the agreement stands in the name of the plaintiffs and directing the plaintiffs to take back the advance amount paid by them. The contents of the said reply notice are not true and correct. The plaintiffs are ready and willing to perform their part of contract and ready with balance of sale consideration. Hence, the suit. 3. 1st defendant and defendants 2, 3 filed separate written statements with the following averments. Plaintiffs 1 and 2 and one Peddiveeti Raghunadham, all of sudden came to Hyderabad before execution and insisted 1st defendant to sell away the property. The 1st defendant told the plaintiffs that he would give first option to the defendants 2 and 3 for purchasing the property. Plaintiffs agreed for the same and obtained agreement of sale as they agreed to purchase the property as 2nd option in case defendants 2 and 3 failed to purchase the property. Plaintiffs obtained a nominal agreement of sale dated 03.09.2006. The said fact is not known to defendants 2 and 3. In the second week of October, 2006, 1st defendant came to Rayachoty and requested the plaintiffs to take back the advance amount paid by them as the defendants 2 and 3 offered to purchase the property being the southern side neighbour in the same survey number. The plaintiffs agreed for the same. Subsequently, the 1st defendant executed a registered sale deed dated 15.10.2006 and delivered possession of the property to the defendants 2 and 3. 4. In spite of reply notice, the plaintiffs did not turn up and receive the advance amount. Suit is not maintainable. Further, it is contended that defendants 2 and 3 purchased the property in good faith without notice of agreement dated 03.09.2006. Therefore, the defendants request to dismiss the suit with costs. 5. On the above pleadings, the following issues were framed. (1) Whether the plaintiffs were ready and willing to perform their part of contract. (2) Whether defendants 2 and 3 are bonafide purchasers for a valuable consideration. (3) Whether the plaintiffs are entitled for specific performance of agreement of sale. (4) To what relief? 6. On behalf of the plaintiffs, P.W.1 was examined and got marked Exs.A1 to A10. On behalf of the defendants, D.W.1 was examined and got marked Exs.B1 to B4. 7. After considering the evidence on record, the trial Court came to the conclusion that Ex.A2 was executed by the first defendant in favour of the plaintiff and decreed the suit as prayed for. Challenging the same, the subsequent purchasers defendants 2 and 3 filed the present appeal. 8. Now, the point for determination in this appeal is whether the appellants are the bona fide purchasers for valuable consideration in respect of the plaint schedule property? 9. Learned counsel for the appellants contended that the third defendant purchased the property for valuable consideration without having knowledge about the execution of sale deed, which is marked as Ex.A2 and that the plaintiffs agreed to purchase the said property as a second option viz., in case defendants 2 and 3 expressed their unwillingness to purchase the property and that defendants 2 and 3 were not present at the time of execution of Ex.A2 so as to infer that they have knowledge about the same and this aspect has not been properly considered by the trial Court. Hence, the learned counsel prays to set aside the impugned judgment. 10. On the other hand, learned counsel for the respondents contended that there is no evidence adduced on behalf of the defendants 2 and 3 to show that the third defendant was a bona fide purchaser for valuable consideration and Ex.A9 is a reply notice got issued by the third defendant, which does not show that she was a bona fide purchaser of property for valuable consideration without having knowledge about the prior agreement of sale executed in favour of plaintiffs by the first defendant and that in the absence of any evidence, it cannot be said that the third defendant is a bona fide purchaser for valuable consideration of the property and that Ex.B3 executed in favour of the third defendant by the first defendant is a sham and nominal one as the value of property is Rs.5,90,000/- whereas the third defendant purchased the property for a value of Rs.55,000/-, that the third defendant is closely related to the first defendant and she is residing near the house of the first defendant, that therefore, having knowledge about the agreement of sale, the third defendant obtained Ex.B3, nominal sale deed, that, the third defendant did not come to the witness box to speak about the efforts made by her before purchasing the property to know about encumbrances, that the third defendant is not a bona fide purchaser and hence, he prays to dismiss the appeal. 11. The suit was filed by the plaintiffs for enforcement of agreement of sale, Ex.A2, said to have been executed by the first defendant. The first defendant has filed written statement having admitted the execution of Ex.A2, sale deed, had taken a plea that in the first instance, option was given to the defendants 2 and 3 to purchase the property and if they expressed unwillingness to purchase the property, then the property shall be sold to the plaintiffs. Having taken such a plea, it is for the first defendant to establish the same. The first defendant did not come to the witness box to speak about the contents in the written statement. As seen from Ex.A2, there is no recital to that effect that at the first instance, option was given to the defendants 2 and 3 to purchase the property and if they expressed their unwillingness to purchase the property, then the property should be sold to the plaintiffs. 12. Therefore, in the absence of any evidence, the plea taken by the first defendant in the written statement cannot be accepted. For the same reason, the trial Court rightly held that Ex.A2 is executed by the first defendant in favour of the plaintiffs and the evidence of P.W.1 would clearly go to show that they are always ready and willing to perform their part of contract and as the fist defendant did not fulfill his promise of contract, the suit was filed. 13. As far as the grant of specific relief is concerned, it is established beyond preponderance of probability that the plaintiffs are ready and wiling to pay the balance of sale consideration and execution of Ex.A2 is not in dispute. Therefore, the only question to be adjudicated in this appeal is whether the third defendant is a bona fide purchaser of property in dispute for valuable consideration. 14. The plaintiffs agreed to purchase the property for a sum of Rs.5,90,000/- on 03.09.2006. When the first defendant failed to execute the registered sale deed, the plaintiffs got issued a notice on 16.10.2006. Thereupon on 16.10.2006, the first defendant executed sale deed in favour of the third defendant. The house of the third defendant is very near to the house of the first defendant. The second defendant has not signed on Ex.B3. The third defendant has not come to the witness box to speak that she has taken all necessary precautions to know the encumbrances if any before purchasing the property. 15. The purchaser of a property must be more vigilant and careful and should make an enquiry with regard to the earlier transactions in connection with the property, which she is going to purchase. Mere statement by third defendant that she was not aware of earlier transaction of agreement of sale is not enough for being a bona fide purchaser. The necessity of the purchase, the intention of transfer, the relationship between vendor and vendee, consideration paid for the subsequent transaction are vital factors to find out the reasonableness of the person in purchasing the property. 16. Considering the relationship between the defendants 1 and 3 and value of the property purchased under Ex.B3 the purpose of selling, it can be inferred that the third defendant is not a bona fide purchaser for valuable consideration. If really, the third defendant is a bona fide purchaser for valuable consideration, certainly having received the notice got issued by the plaintiffs, the third defendant would have stated in the reply notice that she was a bona fide purchaser for valuable consideration. Therefore, the trial Court rightly decreed the suit in the absence of any evidence to show that the third defendant was a bona fide purchaser for valuable consideration and the claim of the third defendant cannot be accepted. The case of the appellants on this aspect is wholly untenable and devoid of merit. 17. Hence, the appeal is dismissed. However, in the circumstances, without costs. ____________ (K.C.BHANU, J) 19th August 2011 RRB