1 SA514.89 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 514 OF 1989 Shri Bhagwan Maruti Kadam & anr. ... Appellants (Ori.Def.Nos.2 & 3) v/s 1. Shri Jinnappa Shivappa Magadum 2. Shri Vithal Tatoba Kadam ... Respondents (No.1 Ori. Plaintiff & No.2 Ori. Def.No.1) Mr.V.B.Rajure for the appellants. None present for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 23RD DECEMBER, 2011 ORAL JUDGMENT: 1. The substantial questions of law which arise in the present appeal are (i) whether the appellants i.e. defendants Nos. 2 and 3 were bona fide purchasers of the suit property for value without notice of the agreement in favour of the plaintiff; and (ii) whether despite the suit property being mortgaged in favour of the father of defendants Nos. 2 and 3 the plaintiff was entitled to specific performance of the agreement? 2 SA514.89 2. The brief facts in the present case are as follows:- The plaintiff filed a suit for specific performance of an agreement for sale against the defendants. He has claimed in his plaint that the defendant No.1 had agreed to sell the lands described as Gat No.766A and 766B to the extent of 40 Ares and 36 Ares respectively in Village Amanapur, Taluka Tasgaon, to him for a sum of `14,000/- by an agreement executed in February, 1976. The suit lands were mortgaged with one Maruti Nama Kadam, the father of Defendant Nos.2 and 3. The plaintiff has pleaded that on 13.4.1976 he paid an amount of `5000/- to defendant No.1 in order to redeem the mortgage. After obtaining the amount of `5000/- from the plaintiff, defendant No.1 paid the amount to defendant No.2 to satisfy the mortgage and a registered receipt was issued by him in favour of defendant No.1. Defendant No.2 also executed a deed regarding the delivery of possession of the suit property to defendant No.1. The plaintiff claimed that he paid a further amount of `5000/- to defendant No.1 on 14.10.1977 when defendant No.1 executed an agreement of sale and delivered the possession of the suit property to him. The sale was to be completed within 11 months, after obtaining permission for the sale from the competent authority and paying the balance 3 SA514.89 amount of the consideration. The plaintiff has pleaded that he was ready and willing to perform his part of the agreement, despite which defendant No.1 executed a registered sale deed in respect of Gat No.766A in favour of defendant Nos.2 and 3. The plaintiff contended in his suit that defendant Nos.2 and 3 were aware of the agreement of sale executed in his favour by defendant No.1. He alleged that the sale of the property in their favour had been effected by defendant No.1 in collusion with them in order to deprive the him of his legitimate right. The plaintiff, therefore, sought specific performance of the agreement of sale and for execution of a registered sale deed in his favour. In the alternative, he prayed that defendant No.1 should be directed to refund the amount paid to him by the plaintiff together with the damages of Rs.4000/- for the breach of the agreement. The plaintiff also prayed for an injunction restraining the defendants from interfering with his possession. 3. Defendant No.1 resisted the suit filed by the plaintiff by contending in his written statement that he had obtained a loan of `2000/- from the plaintiff who was a moneylender conducting his business without a license. By way of security for the loan he had obtained from the plaintiff he had executed an agreement of sale. However, the possession of the suit property was not delivered by him to the plaintiff. The 4 SA514.89 property was in any event mortgaged with the father of defendants Nos. 2 and 3 which defendant No.1 claimed he had redeemed. On 6.3.1978, defendant No.1 executed a sale deed in favour of defendant No.2 and 3 in respect of Gat No.766A. Defendant No.1 has also pleaded that the suit lands were in possession of the father of defendant No.2 as the mortgagee and thereafter it was in possession of his successors, namely, defendant Nos.2 and 3. Defendant No.3 in his written statement has pleaded that the suit was bad for mis-joinder of causes of action and because of non-joinder of necessary parties. Besides this, he has pleaded that the suit was barred by limitation. 4. Considering the evidence on record the trial court has dismissed the suit by concluding that defendants Nos.2 and 3 were bona fide purchasers of the suit property for value without notice of the agreement between the plaintiff and defendant No.1. It has however directed defendant no.1 to repay the amount of `10,000 to the plaintiff. The appellate court has reversed this finding and has decreed the suit by granting specific performance. 4. Mr.Rajure, appearing for the appellant submitted that the Appellate Court has committed an error in allowing the appeal 5 SA514.89 filed by the plaintiff. According to him, the Trial Court had, on the basis of the evidence on record, dismissed the the suit for specific performance filed by the plaintiff and granted the alternate prayer for refund of the amount paid by him to defendant no.1. He pointed out that the Trial Court had held that the plaintiff had proved that he had paid an amount of `5000/- on 13.4.1976 and a further amount of `5000/-to the defendant No.1. He urged that for cogent reasons the Trial Court has refused to grant a decree of specific performance of the agreement and has instead directed defendant No.1 to return `10,000/- to the plaintiff. He submitted further that in any event defendants 2 and 3 have proved that they are bona fide purchasers of the suit property for value without notice of the plaintiff’s right over the suit property. According to Mr.Rajure, the appellate Court has erred in concluding that defendant Nos.2 and 3 were not bona fide purchasers for value without notice and, therefore, the judgement of the Appellate Court is required to be set aside. Apart from this he submitted that the appellate court has not considered the effect of the mortgage of the property created in favour of the predecessor of defendants Nos.2 and 3 and the fact that he and after his death defendants Nos.2 and 3 were in possession of the same. 5. The appellate Court has observed that the deed of sale in 6 SA514.89 favour of defendant Nos.2 and 3 is dated 6.3.1978, whereas the agreement in favour of the plaintiff is dated 14.10.1977. On the basis of the document at Exh.134 it has found that the amount received by defendant No.1 from the plaintiff was paid to defendant No.2 to redeem the mortgaged property i.e. the suit property and it was later sold to defendant Nos.2 and 3. 6. The first question which arises is whether defendant Nos. 2 and 3 are bonafide purchasers of the suit property for value without notice of the previous sale in favour of the plaintiff. Defendant Nos.2 and 3 in their respective depositions have stated that they had no knowledge about the sale of the property by defendant No.1 to the plaintiff. This assertion has not been disturbed in their respective cross-examinations. 7. In the case of Durga Prasad & anr. v/s Smt.Lilawati & anr., reported in AIR 1972 Allahabad 396, a learned Single Judge of the Allahabad High Court has opined that the initial burden to show that he had no knowledge of any prior agreement between the vendor and a third party is always on the vendee. It is he who has to discharge his burden by leading negative evidence i.e. by denying that he had knowledge of the prior agreement. It has been observed that as soon as the vendee denies knowledge of the notice of the 7 SA514.89 prior agreement for sale, his burden is discharged and it shifts to the vendor to prove that the vendee had notice of the prior agreement. In the present case, Mr.Rajure has submitted that defendant Nos.2 and 3 had discharged the burden cast on them as purchasers of the suit property. He submitted that the burden then shifted to the plaintiff to establish that defendant Nos.2 and 3 had knowledge of the prior agreement for sale executed by defendant No.1 in his favour before defendant Nos.2 and 3 entered into an agreement with defendant No.1. 8. It is true that the burden was discharged by defendant Nos.2 and 3 by denying any knowledge of the agreement for sale between the plaintiff and defendant No.1. The Trial Court accepted their testimony. It has disbelieved the evidence of the plaintiff’s witness that defendant No.2 was present when the agreement was signed between the plaintiff and defendant No.1 in February, 1976. No such suggestion was put to defendant No.2 when he was being cross-examined. Both, defendant Nos.2 and 3 deposed that the suit land was mortgaged in favour of their father, Maroti Nama Kadam, and that the mortgage was redeemed by defendant No.1 by securing a loan from the plaintiff. Immediately thereafter defendant No.1 entered into an agreement for sale of the suit property with defendant Nos.2 and 3 and thus they continued 8 SA514.89 in possession of the suit property. The Trial Court has observed that defendant Nos.2 and 3 were in possession of the suit property as mortgagees. They purchased the suit property as bona fide purchasers without notice of the plaintiff’s right and, therefore, their interest was required to be protected. The trial court was of the view that although the agreement for sale between the plaintiff and the defendant No.1 was a registered document it would not amount to a notice to the defendant Nos. 2 and 3. This was because such an agreement was not required to be compulsorily registered under the Registration Act. 9. The Appellate Court has accepted the fact that the plaintiff had failed to prove his possession of the suit property It has disbelieved his contention that after executing the agreement of sale, defendant No.1 had put him in possession of the suit property. However, the appellate Court was of the view that the pleadings in the written statements filed by defendants did not demonstrate that defendant Nos.2 and 3 had purchased the suit property bona fide for value, without notice. This conclusion was drawn by the Appellate Court because defendant Nos.2 and 3 purchased the suit property for `12,000/- whereas the agreement between the plaintiff and defendant No.1 was for the consideration of `14,000/-. 9 SA514.89 The findings of the appellate Court are that the agreement for sale executed by defendant No.1 in favour of defendant Nos.2 and 3 was not in good faith and shrouded with suspicion. 11. These findings of the Appellate Court, in my opinion, are unacceptable. The only issue which the Appellate Court had to consider was whether defendant Nos.2 and 3 were bonafide purchasers for value without notice of the previous agreement. For this purpose, as mentioned earlier, defendant Nos.2 and 3 had to discharge their burden by entering the witness box and assert that they had no notice of the prior agreement. Whether the agreement of sale in their favour was for a lesser consideration than the agreement of defendant No.1 with the plaintiff is not in issue and, therefore, the Appellate Court ought not to have been swayed by the consideration in both the transactions. Defendant No.1 in his deposition has stated that the agreement between him and the plaintiff was only a security for the loan he obtained from the plaintiff for redeeming the mortgage created in favour of Maruti Nama Kadam i.e. the father of defendant Nos.2 and 3. He has stated that the plaintiff took undue advantage and sought to convert that agreement into an agreement for sale. 12. I have considered the judgements of both the Courts 10 SA514.89 below and I find that the decision of the Appellate Court has led to a miscarriage of justice. Having held that the plaintiff had failed to prove his possession over the suit lands the appellate court has failed to consider the fact that the property was mortgaged with the father of defendant Nos.2 and 3 when the plaintiff entered into the agreement in February 1976. it has not dealt with the effect of the mortgage on the agreement for sale by observing that it was not necessary to do so in the present case where only specific performance of the agreement was sought by the plaintiff. This conclusion in my view is erroneous as the issue goes to the root of the matter as to whether in the given circumstances the relief of specific performance should be granted. 13. It is now well settled that before granting a decree for specific performance the court must consider the provisions of S.20 of the Specific Relief Act. The judgement of the appellate court does not disclose that it had at all adverted to this provision before granting the decree in favour of the plaintiff. The fact that the plaintiff had entered into the agreement for sale subject to the mortgage has not been given due importance by the appellate court. Besides, the circumstance that the defendants Nos.2 and 3 have been continuously in possession of the suit property has also not been noticed by 11 SA514.89 the appellate court. 13. In the circumstances the judgement and order of the appellate court is set aside and the judgement and order of the Civil Judge, Jr. Division, Tasgaon, in R.C.S. No.90 of 1978 is confirmed. 14. The appeal is allowed accordingly. (SMT.NISHITA MHATRE, J.) 12 SA514.89