IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 AS.No. 277 of 1999(Y) --------------------- OS.1061/1993 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/2MD DEFENDANT: ------------------------------------------- K.R. DINESH, KALAZHATHU PARAMBU, S.R.M. ROAD, PACHALAM, KOCHI-12. BY ADV. SRI.S.B.PREMACHANDRA PRABHU ADV. SRI. G. UNNIKRISHNAN, SRI.P.V. RAMESH SHANKER & SHRI. SHINOD G.P. RESPONDENTS/PLAINTIFF & DEFENDANTS 3 TO 18: -------------------------------------------------------------------------- 1. CHANDRAMATHY M., KALAZHATHU PARAMBU PACHALAM, KOCHI - 12. 2. SIVAN, KARUVELIPARAMBU, PACHALAM, KOCHI-12. 3. K.V. PARAMESWARAN, DO. DO. 4. K.V.PUSHPAVATHY, DO. DO. 5. K.R.PRADHEEP KUMAR, DO. DO. 6. K.R. PRAKASH KUMAR, KALAZHATHU PARAMBU, DO. DO. 7. K.R. PROMOD KUMAR, DO. DO. 8. K.R. PRAMEELA, DO. DO. 9. K.R. VIJAYALAKSHMI, DO. DO. 10. LEELA, DO. DO. 11. ANURUDHAN, PALAPARAMBU HOUSE, S.R.M. ROAD, PACHALAM P.O., KOCHI-12. 12. BALARAJ, DO. DO. 13. VASANTHAN, DO. DO. 14. AHALLIA, KONTHATTY PARAMBU, H.NO.XXIII/2146, PALLURUTHY, KOCHI-6. 15. SUSHEELA, PALAPARAMBU HOUSE, S.R.M. ROAD, PACHALAM P.O., KOCHI-12. 16. VALSALA, DO. DO. 17. SULOCHANA, DO. DO. R1 BY ADV. SRI.N.HARIDAS SRI.G.UNNIKRISHNON SRI.H.SUNDEEP THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON 08/09/2009 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 277 of 1999 - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of September, 2009 JUDGMENT This appeal is filed by the second defendant in O.S.No. 1061 of 1993 on the file of the Sub Court, Ernakulam. The first respondent herein is the plaintiff and other respondents are defendants 3 to 18 in that suit, which was filed for setting aside a sale deed, for specific performance of a contract for sale and for prohibitory and mandatory injunction. 2. The plaintiff's case in brief is as follows. The plaint schedule property was part of the properties that belonged to one Vajravala Shetty. He died intestate. Defendants 1, 3 and 4 are his children. The second defendant is the son of another son Ramachandran, who is no more. The fifth defendant is the wife of another son A.S.No. 277 of 1999 2 Ramadas. Defendants 6 to 10 are the children of Ramadas and the 5th defendant. 11th defendant is the wife of the 4th defendant. After the death of Vajravala Shetty, some of his legal representatives executed a partition deed No.2197 of 1964 in respect of his properties. One of his grand children filed O.S.No. 89 of 1968 for partition of his properties. The legal representatives of Vajraval Shetty, including defendants 1, 3 and 4 and Ramachandran, father of the second defendant and Ramadas, the husband of the fifth defendant and father of defendants 6 to 8, were parties to the suit. 3. On 28.7.1982, a preliminary decree for partition was passed. The preliminary decree fixed the share of the plaintiff in that suit as 1/9 and the others as 8/9. In A.S.No. 118 of 1973, the preliminary decree was modified by allotting 1/10 shares to the plaintiff and the 9th defendant in that suit and 9/10 shares to defendants 1 to 8 in that suit. The final decree was passed on 20.2.1985. A.S.No. 277 of 1999 3 4. The appeal, A.S. 51 of 1988, filed against the final decree was dismissed on 13.12.1989. The Second Appeal, S.A.457 of 1990, is pending before this Court. The plaint schedule property has been allotted to the share of the first defendant herein. It was actually in the possession of the third defendant, who mortgaged the property to one Padmakshy, who leased out the building in the property to the plaintiff on 29.6.1975. The plaintiff gave Rs.3,000/- to Padmakshy towards security for the rent. The monthly rent was Rs.50/- An amount of Rs.30/-, which was the interest on the security amount, was agreed to be adjusted towards the monthly rent. The plaintiff was liable to pay only the balance amount of Rs.20/- per month. She used to pay it. 5. In April, 1983, defendants 1, 3 and 4 informed the plaintiff that in O.S. 89 of 1968, a decree was passed allotting the plaint schedule property to the first defendant. The plaintiff was also told that the security amount of Rs.3,000/- paid by her A.S.No. 277 of 1999 4 to Padmakshy was adjusted towards the mortgage amount. The plaintiff was made to believe by defendants 1, 3, 4 and 11 that the first defendant had the absolute right to deal with the plaint schedule property. 6. On 6.4.1983, the plaintiff and the first defendant entered into an agreement for sale of the plaint schedule property to the former for Rs.15,000/- The plaintiff paid to the first defendant Rs.8,000/- towards the sale consideration. Defendants 2 to 11, who are also co-owners, were fully aware of the execution of the agreement. The first defendant undertook to execute the sale deed within one year from the date of the agreement or when the final decree was passed in O.S. 89 of 1968, whichever is earlier. The final decree was not passed within one year. After the passing of the final decree, an appeal was filed, which was later dismissed and the second appeal is pending. So, the agreement was renewed every year and was registered. The renewal was known to every co-owner. A.S.No. 277 of 1999 5 7. The plaintiff had filed an application before this court to get herself impleaded as an additional respondent. Meanwhile, the first defendant executed a sale deed on 18.8.1992 in favour of the second defendant in respect of the plaint schedule property. Suppressing this, the agreement for sale was renewed on 15.3.1993. When the plaintiff came to know about the execution of the sale deed in favour of the second defendant, she requested defendants 1 and 2 to cancel the sale deed and to execute a sale deed in her favour. The defendants have not complied with the same. The sale deed in favour of the second defendant was the result of collusion and fraud. The plaintiff was always ready and willing to perform her part of the contract. The agreement was renewed every year because of the pendency of the appeal. 8. In the written statement, the first defendant had raised a contention that Padmakshy is a necessary party to the suit. The suit is bad for her non-joinder. The first defendant had always A.S.No. 277 of 1999 6 been ready and willing to perform her part of the contract. It is not correct to say that the plaintiff had always been ready and willing to purchase the property. She did not have sufficient money to pay the balance sale consideration. Hence the first defendant had the right to alienate the property to anyone. The contention that the sale deed in favour of the second defendant was executed fraudulently is not correct. 9. In the written statement, the second defendant had raised a contention that the suit is barred by limitation. The allegation that the second defendant was aware of the execution of the agreement for sale of the property by the plaintiff and the first defendant is not correct. The second defendant is a bonafide purchaser. The plaintiff never requested the second defendant to cancel the sale deed, which is valid and is not liable to be set aside. 10. In the joint written statement, defendants 3, 4 and 11 have raised a contention that they are not necessary parties to A.S.No. 277 of 1999 7 the suit. They were not aware of the agreement between the plaintiff and the first defendant. It is the 4th defendant and not the the third defendant, who mortgaged the property to Padmakshy. All the properties of Vajravala Shetty are in the possession of Receiver. One Santhoshkumar is residing in the property as kudikidappukaran and he is a necessary party to the suit. 11. In the Sub Court, PW1 was examined and Exts.A1 to A17 and C1 were marked. No evidence was adduced from the side of the defendants. The learned Sub Judge, on considering the evidence, decreed the suit as follows: “This suit is decreed and the second defendant and additional defendants 12 to 18 are directed to execute a sale deed in favour of the plaintiff within 1 ½ months if the plaintiff deposits in court within 2 months the balance sale consideration of Rs.7,000/- (Rupees seven A.S.No. 277 of 1999 8 thousand only). It is made clear that the decree will be subject to the result of S.A. 457/90 and the plaintiff's right to get separate possession of the plaint schedule property will be only after the disposal of the second appeal unless otherwise directed by the Hon'ble High Court. The plaintiff is allowed to realise her costs from the second defendant.” Against that judgment and decree the second defendant filed this appeal. 12. Heard the learned counsel for the appellant and the learned counsel for the first respondent/plaintiff. 13. The learned counsel for the appellant submitted that the plaintiff has not prayed for specific performance of any particular agreement for sale, though several agreements for sale alleged to have been executed by the first defendant are mentioned in the plaint. That argument cannot be accepted since in the plaint while dealing with the A.S.No. 277 of 1999 9 cause of action, the plaintiff has mentioned about all the agreements executed by the first defendant. The learned counsel for the appellant further submitted that the appellant/second defendant is a bonafide purchaser of the plaint schedule property for consideration without notice of the alleged agreement for sale and as such the learned Sub Judge ought to have dismissed the suit. Answer to this argument will be given while considering the evidence on record. Whereas the learned counsel for the first respondent/plaintiff supported the judgment and decree. 14. The plaint schedule property is having an extent of 4½ cents comprised in Sy.No.29/2 with a line building, which was allotted to the share of the first defendant in the present suit as per final decree in O.S.No. 89 of 1968 on the file of the Sub Court, Ernakulam. The first defendant herein was the 7th defendant in that suit and H schedule shown in the commissioner's report and plan is allotted to A.S.No. 277 of 1999 10 her share. Ext.A1 is the copy of the final judgment in O.S.No. 89 of 1968 dt.20.2.1985. Ext.A2 is the registered agreement for sale dt.6.4.1983 entered into between the plaintiff and the first defendant, by which the first defendant agreed to sell the plaint schedule property to the plaintiff for a total sale consideration of Rs.15,000/- and that the first defendant received Rs. 8,000/- as part of the sale consideration from the plaintiff. 15. As per Ext.A2 agreement, the first defendant undertook to execute the sale deed within one year from the date of the agreement or when the final decree was passed in O.S.No.89 of 1968, whichever is earlier. But final decree was not passed in O.S.No. 89 of 1968 within one year. After passing of the final decree on 20.2.1985, an appeal, A.S.No. 51 of 1988, was filed before the Additional District Court, Ernakulam, which was dismissed as per judgment dt.13.12.1989. Ext.A17 is the copy of the judgment in that A.S.No. 277 of 1999 11 appeal. Against that judgment, a second appeal was filed, which was pending before this Court at the time of filing of the present suit. 16. Since the final decree had not become final due to the filing of appeal and second appeal, the first defendant and plaintiff executed Exts.A3 to A12 registered renewal agreements. Execution of Exts.A2 to A12 registered agreements and renewed agreements are reflected in Ext.A14 Encumbrance Certificate dt.12.9.1995 issued from the S.R.O., Ernakulam. The last renewal agreement was on 15.3.1993. Before the execution of the last renewal agreement, the first defendant executed the sale deed No.3799 of 1992 of S.R.O., Ernakaulam dt.18.9.1992 in favour of the second defendant, by which the first defendant sold the plaint schedule property to the second defendant. Ext.A13 is the copy of that sale deed. A.S.No. 277 of 1999 12 17. The relationship between the first defendant and the second defendant is not disputed. The first defendant is the daughter of Vajravala Shetty, to whom the plaint schedule property originally belonged. The second defendant is the son of Ramachandran, who is the son of Vajravala Shetty. One of the legal heirs of Vajravala Shetty filed O.S. 89 of 1968 for partition of the properties belonged to Vajravala Shetty. It is an admitted fact that the plaintiff is residing in one of the buildings situated in the plaint schedule property since 1975. 18. The learned counsel for the appellant argued that when the plaintiff was examined as PW1, she has stated in cross examination that she did not talk to the second defendant about the sale agreement and therefore it is clear that the second defendant was not aware of Ext.A2 agreement for sale and subsequent agreements. But this argument cannot be accepted in view of the fact that in A.S.No. 277 of 1999 13 chief examination PW1 has stated that all the defendants, including the second defendant, knew about the agreements. 19. According to Section 19(b) of the Specific Reliefs Act, subsequent transferee seeking to defend a suit for specific performance of an earlier agreement for sale is required to establish four things, viz. (1) that the subsequent transfer is for value, (2) that the money has been paid, (3) that the purchase was done in good faith and (4) that the purchase, including the payment of money, was without notice of the original agreement. But the second defendant has not adduced any evidence to prove these things. Therefore, the second defendant cannot be treated as a bonafide purchaser without notice of the agreement. 20. Ext.A11 agreement dt.17.3.1992 proves that it is only because of the pendency of the second appeal that the sale deed could not be executed. Even before the expiry of the period of renewed agreement the first defendant A.S.No. 277 of 1999 14 executed Ext.A13 sale deed in favour of the second defendant on 18.9.1992. As per the terms of the agreement, the plaintiff need not pay the balance of sale consideration before the disposal of the appeal and the second appeal. It is to be noted that suppressing the execution of Ext.A13 sale deed on 18.9.1992, the first defendant again renewed the agreement for sale on 15.3.1993. The plaintiff, who was examined as PW1, deposed that she was always ready and willing to purchase the plaint schedule property by paying the balance sale consideration. In appreciating the testimony of PW1 in the light of the subsequent conduct of the first defendant, it has to be held that the plaintiff was always ready and willing to perform her part of the contract. Since the plaintiff being a person, in whose favour there was a prior agreement, can compel the subsequent purchaser to execute a sale deed in his favour. The execution of sale deed by the original owner without the A.S.No. 277 of 1999 15 subsequent purchaser joining the same will not confer any title on the person, in whose favour there was a prior agreement to sell. Therefore, the learned Sub Judge is justified in directing the second defendant to execute the sale deed in favour of the plaintiff along with the legal heirs of deceased first defendant. 21. The jurisdiction to decree a specific performance is discretionary. The relief of specific performance cannot be denied in appeal simply on the ground that there has been considerable rise in the price of the land agreed to be sold due to passage of time since after the agreement. Since the learned Sub Judge exercised the jurisdiction on sound and reasonable judicial principle, I find no reason to interfere with the judgment and decree of the learned Sub Judge. 22. Accordingly, this appeal is dismissed. The judgment and decree in O.S.No. 1061 of 1993 on the file of A.S.No. 277 of 1999 16 the Sub Court, Ernakulam is confirmed. The first respondent/plaintiff is entitled to get her cost of this appeal from the appellant/second defendant. (M.L. JOSEPH FRANCIS) Judge tm