Kerala High Court
Sabu Thomas vs N.Narayanan Namboothiri on 6 August, 2025
RFA No. 638 of 2008.
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2025:KER:58837
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
RFA NO. 638 OF 2008
OS NO.245 OF 2004 OF PRINCIPAL SUB COURT, KOTTAYAM
APPELLANT/2nd DEFENDANT
SABU THOMAS, AGED 41 YEARS,
KANDANTHODU VEEDU, THRIKODITHANAM KARA,
CHANGANACHERY TALUK.
BY ADVS.
SRI.MATHEW B. KURIAN
SRI.K.T.THOMAS
RESPONDENTS/PLAINTIFF & 1ST RESPONDENT
1 N.NARAYANAN NAMBOOTHIRI, AGED 68 YEARS,
KARAKKATTU ILLI, KAKKATHODE, VAZHAPPALLY,
KIZHAKKUMBHAGOM VILLAGE.
2 PONNAMMA RAJ, W/O.RAJAN
AGED 44 YEARS, PUTHENPURAYIL HOUSE,,
THRIKKODITHANAM KARA, CHANGANACHERRY TALUK.
BY ADVS.
SHRI.P.GOPAL
SRI.P.G.PARAMESWARA PANICKER (SR.)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 23.7.2025, THE COURT ON 06.08.2025 DELIVERED THE
FOLLOWING:
RFA No. 638 of 2008.
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2025:KER:58837
CR
JUDGMENT
Dated : 6th August 2025 The 2nd defendant in OS No. 245 or 2004 on the file of the Principal Sub Court Kottayam, is the appellant. (For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court.)
2. The plaintiff filed the suit for specific performance of an agreement for sale entered into with the 1st defendant agreeing to sell the plaint schedule property for a total consideration Rs. 8,00,000/-. On the date of agreement for sale on 31.07.2003(Ext.A1), a sum of Rs. 5,05,000/- was paid to the 1st defendant as part of the sale consideration. As per the terms of the agreement, the sale deed was to be executed on or before 24.03.2004, after paying the balance sale consideration. According to the plaintiff, he was always ready and willing to perform his part of the sale agreement, but it could not be performed due to the default of the 1 st defendant. Finally, on 24.03.2004, after informing the 1st defendant, the plaintiff reached the Sub Registrar's office with the balance sale consideration, expecting the 1st defendant to get the sale deed executed. However, the 1st defendant did not turn up. On enquiry, the plaintiff came to know that the 1st defendant had executed sale deed No.3142/2003 in RFA No. 638 of 2008.
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2025:KER:58837 respect of the scheduled property in favour of the 2 nd defendant for a consideration of Rs. 1,00,000/-. The 2nd defendant is a close friend of the 1st defendant and her family. The 2nd defendant was fully aware of the agreement executed by the 1st defendant in favour of the plaintiff. Therefore, it is contended that, the sale deed No. 3142/2003 (Ext.A2) is a fraudulent document created in collusion between defendants 1 and 2 to defeat the rights of the plaintiff and as such, it does not bind the plaintiff and the plaint schedule property. It was in the above context that the plaintiff preferred this suit for a decree for specific performance.
3. The 1st defendant remained ex parte. The 2nd defendant filed a written statement denying the averments in the plaint and denying the execution of any such sale agreement between the plaintiff and the 1 st defendant. It is also denied that the 1st defendant received a sum of Rs. 5,05,000/- being part of the sale consideration from the plaintiff. Further, according to the 2 nd defendant, the scheduled property was already mortgaged to Kottayam District Cooperative Bank, Kottayam for a sum of Rs.3,00,000/-. Further, the said property was under court attachments, in O.S. No. 273 of 2003 of the Munsiff's Court, Alapuzha and O.S. No. 458 of 2003 of the Sub Court, Kottayam. The 2 nd defendant purchased the property subject to the above encumbrances. After purchasing the said property, the 2nd defendant is in possession and enjoyment RFA No. 638 of 2008.
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2025:KER:58837 of the said property. It was further contended that the 2 nd defendant is a bona fide purchaser for valid consideration. He also denied the allegation in the plaint that he is a friend of the 1st defendant. Therefore, the 2nd defendant prayed for dismissing the suit.
4. The trial Court has framed five issues. The evidence in the case consists of the oral testimonies of PWs 1 and 2, DWs 1 and 2, Exhibits A1 to A6, B1 to B10 and X1 to X6. After evaluating the evidence on record, the trial Court decreed the suit in part. Though the prayer for specific performance was declined, the 1st defendant was directed to repay the advance amount Rs.5,05,000/- to the plaintiff and for the said sum, a charge was created in the plaint schedule property. Being aggrieved by the above judgment and decree of the trial Court, to the extent it created charge on the plaint schedule property for the decretal amount, the 2nd defendant preferred this appeal.
5. Now the points that arise for consideration are the following:
1) Whether a charge under Section 55(6)(b) of the Transfer of Property Act will lie even against a bona fide purchaser for consideration?
2) Whether the 2nd defendant is entitled to get the protection under Section 19(b) of the Specific Relief Act?
6. Heard Sri. K.T. Thomas on behalf of Sri. Mathew B. Kurian, the learned counsel for the appellant and Sri.P.Gopal, the learned counsel for the RFA No. 638 of 2008.
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2025:KER:58837 respondent.
7. The points: The plaint schedule property consisting of 10 cents of land and a residential building situated therein, originally belonged to the 1 st defendant. As per Exhibit A1 agreement for sale dated 31.07.2003 the 1 st defendant had agreed to sell the said property to the plaintiff for a consideration of Rs. 8,00,000/-. As per Exhibit A1 agreement, on the date of execution on 31.07.2003, a sum of Rs. 5,05,000/- was received by the 1st defendant. As per the terms of Exhibit A1, the contract is to be performed on or before 24.03.2004. From the evidence, it is revealed that before the expiry of the period provided for the performance of Exhibit A1, the 1 st defendant executed Exhibit A2 sale dead in respect of the scheduled property in favour of the 2nd defendant, on 18.11.2003. On 27.03.2004, the plaintiff issued a lawyer's notice to defendants 1 and 2, after he came to know about the execution of Exhibit A2 in favour of the second defendant, seeking specific performance of Exhibit A1 in his favour. Thereafter, the 2nd defendant issued Exhibit A5 reply notice dated 20.4.2004, stating that he is a bona fide purchaser for valid consideration, and also denying the execution of Exhibit A1 sale agreement between the plaintiff and the 1st defendant.
8. According to the plaintiff, he was always ready and willing to perform his part of the contract, and that the sale deed could not be executed RFA No. 638 of 2008.
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2025:KER:58837 due to the default of the 1st defendant. Though the 2nd defendant stoutly denied the above claim raised by the plaintiff, the trial court found that it is for the 1 st defendant to state whether the sale could not be executed due to the default of the plaintiff or not. Since the 1st defendant remains ex parte, the trial court found that there is nothing to disbelieve the evidence of the plaintiff as PW1, that he was always ready and willing to perform his part on the contract and that the sale deed could not be executed solely due to the default of the 1 st defendant. As per Exhibit A1 agreement for sale, the plaintiff had the period upto 24.03.2004 to get the sale deed executed. However, much before the said date, on 18.11.2003, the 1st defendant executed Exhibit A2 sale deed in favour of the 2nd defendant. In the meantime, on 24.03.2004, on the last day stipulated in the agreement, the plaintiff went to the Sub Registry after intimating the 1 st defendant and stood himself as a witness in Exhibit A6 document. Admittedly, the 1st defendant did not turn up before the SRO, as even before that date he had executed Exhibit A2 sale deed in favour of the 2 nd defendant. In the above circumstance, since the 1st defendant did not deny the claim of the plaintiff that he was always ready and willing to perform his part of the contract and that the contract could not be performed solely due to the default of the 1st defendant, I am also in agreement with the finding of the trial court that the breach of contract was committed by the 1st defendant and not by the plaintiff. It was in RFA No. 638 of 2008.
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2025:KER:58837 the above context, by virtue of Section 55(6)(b) of the Transfer of Property Act, the plaintiff claimed a charge over the plaint schedule property for the amount advanced by him.
9. Section 55(6)(b) of the Transfer of Property Act reads as follows:
"55(6) (a) ..........
(b). unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.
10. On the other hand, the learned counsel for the 2 nd defendant would argue that the 2nd defendant was a bona fide purchaser of the plaint schedule property for valid consideration and as such he is entitled to get the protection under section 19(b) of the Specific Relief Act. Section 19(b) of the Specific Relief Act, 1963 reads as follows :-
19. Relief against parties and persons claiming under them by subsequent title.--
Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) .............
(b). any other person claiming under him by a title arising RFA No. 638 of 2008.8
2025:KER:58837 subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract."
11. The learned counsel has relied upon S.100 of the Transfer of Property Act also, to substantiate his argument that, no charge will lie against any property in the hands of a transferee for consideration and without notice of the charge. Section 100 of the Transfer of Property Act, dealing with charge, reads as follows :-
100. Charges.--
Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.
Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.
12. Section 19(b) of the Specific Relief Act protects the interests of a bona fide purchaser against specific performance of an agreement for sale entered into prior to the sale deed. Though as per S.100 of the Transfer of RFA No. 638 of 2008.
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2025:KER:58837 Property Act no charge will lie against any property in the hands of a transferee for consideration and without notice of the charge, it is subject to a rider 'save as otherwise expressly provided by any law for the time being in force'. Section 55(6)(b) of the Transfer of Property Act provides for a charge in favour of the purchaser if he has not improperly declined delivery of the property. Therefore, now the question to be considered is whether the 2 nd defendant was a bona fide purchaser for value who has paid his money in good faith and without notice of the original contract and if so, the charge under Section 55(6)(b) of the Transfer of Property Act will lie against him also.
13. While in Exhibit A1 the total consideration shown was Rs. 8,00,000/-, in Exhibit A2 sale dead, the consideration shown is only Rs. 1,00,000/-. According to the learned counsel for the appellant, a lessor consideration was shown in Exhibit A2 for the purpose of reducing the stamp duty. However, the above argument advanced by the learned counsel could not be believed for more than one reason. In the proof affidavit filed by DW1 he claimed that the total consideration for the property was Rs.6,50000/- and total liability over the property including the mortgage money and two court attachments was Rs.5,50,000/- and the balance Rs.100,000/- was paid to the defendant. From Ext.B5 it is revealed that, as on 30.11.2003 the plaint scheduled property was subject to a liability of Rs. 3,75,000/- to DCB and that RFA No. 638 of 2008.
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2025:KER:58837 as on 20.12.2006, the liability has increased to Rs. 5,63,774/-. When DW1 was cross-examined on 7.8.2007, he admitted that the liability of DCB was still not repaid. In addition to the same, in Ext.A2, two court attachments, one in O.S. No. 273 of 2003 of the Munsiff's Court, Alapuzha and the other in O.S. No. 458 of 2003 of the Sub Court, Kottayam were acknowledged. In O.S. No. 458 of 2003, as per Exhibit B2 judgment, the liability is Rs.1,09,000/- with interest. As per the proof affidavit, the amount involved in O.S.No.273 of 2003 is Rs.53466/-.
14. In Ext.B1(same as Ext.A2) the liability due to DCB was not shown. The reason given by DW1 is to avoid hurdles in registering the document. At the time of evidence it is revealed that, at first the 1 st defendant attempted to execute Exhibit A2 sale deed suppressing the court attachments also. Only after the Sub Registrar refused to register the document without mentioning the above court attachments, they made necessary corrections in the sale dead and a revised sale dead was executed in the form of Exhibit A2. At the time of evidence, the 2nd defendant as DW 1 admitted that even before the execution of Exhibit A2 sale deed he was aware of the encumbrance over the scheduled property with DCB and that, he along with the 1 st defendant went to the bank and verified the details of the encumbrance. Even then, in Ext.B1 the liability due to DCB was not shown, to avoid hurdles in registering the RFA No. 638 of 2008.
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2025:KER:58837 document. On the other hand, in Ext.A2 it is specifically stated that except those two court attachments, there are no other liabilities over the said property. Ext.A2 further states that, in case it is found that there is any other liability over the scheduled property, the 1st defendant will be liable to indemnify the 2 nd defendant. Therefore, by declaring that except the above two court attachments there is no other liabilities over the said property and further undertaking to indemnify the 2nd defendant, in case there is any other liability over the scheduled property, the 1st defendant also has taken the risk of a possible claim by the 2nd defendant. However, both of them have no complaints against each other in that respect, so far.
15. Ext.B4 encumbrance certificate shows that, in addition to the two attachments disclosed in Ext.A2, there was one more court attachment by the Sub Court, Kottayam, in O.S.459/2003 for a sum of Rs.4,06,250/-. With regard to the above 3rd court attachment, there is no mention in Ext.A2. The learned counsel would argue that in Ext.B3 judgment, there is no mention about the said attachment and that there is no such attachment over the scheduled property. For the mere reason that in Ext.B3 there is no mention about the said attachment, the entry in Ext.B4 encumbrance certificate could not be ignored or disbelieved. In this context it is to be noted that it is a document produced by the 2nd defendant himself to convince that he purchased the property after RFA No. 638 of 2008.
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2025:KER:58837 verifying the encumbrances over the property. Therefore, it is evident that he has chosen to purchase the scheduled property after noticing that a third attachment for a sum of Rs.406250/- was also there on it.
16. The contention of the plaintiff that the 2nd defendant is a close friend of the 1st defendant and that Exhibit A2 sale deed was executed by them in collusion with each other to defraud the plaintiff is to be appreciated in the above context. It is true that the said contention was stoutly denied by the 2 nd defendant in his written statement. However, when he was examined as DW1, he admitted that he knew the 1st defendant at least one month prior to the date of execution of Exhibit A2. Thereafter he admitted that 16 cents of property lying on the immediate west of the plaint scheduled property originally belonged to the husband of the 1st defendant and that it was purchased in the name of his wife on 4.11.2003, just 14 days before the execution of Ext.A2. According to DW1, for the property purchased in the name of his wife for Rs.800,000/- also he paid only Rs.100,000/-. According to him, for that property also there was liability to DCB and the liability amounting to Rs.7,00,000/- was subsequently discharged by him.
17. DW1 claimed that the property in the name of his wife was purchased using the sale proceeds of her property. He also admits that one Satheesh has filed a case to set aside the sale deed executed in favour of his RFA No. 638 of 2008.
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2025:KER:58837 wife. He claims that the plaint schedule property was purchased using the money withdrawn by him from the bank. However, he has not produced any documents to prove the sale of any such property or withdrawal of any such money from the bank. According to DW1, an agreement was executed with the 1st defendant in respect of the plaint scheduled property, 15 days before the execution of Ext.A2. According to him, the said agreement was destroyed after the execution of Ext.A2. He would also admit that after the execution of Ext.A2 the 1st defendant and her husband absconded, due to financial problems.
18. According to DW1, the amount was paid to the 1 st defendant on 18.11.2003, at the premises of the SRO. However, in Ext.A2 it is stated that the amount was already received. He clarified that since the Registrar refused to register the document on 18.11.2003, pages from 3 onwards were to be changed and the document could be registered only on 24.11.2003 and that is why it was recorded as amount already received. However, it is to be noted that, even after such change, the date of Ext.A2 remains 18.11.2003. Therefore, the above discrepancy in the evidence of DW1 regarding the date of payment of the consideration remains as such.
19. Relying upon the evidence of PW2 it was argued that the signature of the 1st defendant present in Ext.A1 is different from that in Ext.A2. At the time of evidence both PWs 1 and 2 categorically deposed that the signature in RFA No. 638 of 2008.
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2025:KER:58837 Ext.A1 is that of the 1st defendant and he has not challenged his signature in that document. The 2nd defendant was not in the picture, at the time of execution of Ext.A1. Therefore, for the mere reason that there is some difference in the signatures of the 1 st defendant in A1 and A2, it cannot be held that Ext.A1 was not executed by the 1st defendant.
20. Generally, a bona fide purchaser will not purchase a property, if it is subject to encumbrance and court attachments, in view of the risk involved. In this case, even though the 2nd defendant came to know that the plaint schedule property was subject to a mortgage with the DCB and also under three court attachments in three different suits, in two different courts, he chose to purchase the said property with the liabilities. In such a context, it is quite natural to ask a question as to why the 2 nd defendant has taken such a risk for and on behalf of the 1st defendant? In this context it is to be noted that the price offered by the plaintiff was 800,000/- while according to the 2 nd defendant, the total consideration was 6,50,000/- including liabilities worth Rs.5,50,000/-. However, the total liability under the mortgage and three attachments taken together will exceed 9 lakhs.
21. At first Ext.A2 sale deed was drafted suppressing all the liabilities including the court attachments. Only when the Sub Registrar refused to register the document, the court attachments were included in it. There is RFA No. 638 of 2008.
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2025:KER:58837 absolutely no explanation from the side of the 2nd defendant as to why he has taken so much risk in purchasing the plaint schedule property though it was subjected to mortgage to DCB and three court attachments.
22. The learned counsel for the appellant would argue that the property of the wife of the 2nd defendant situated on the western side of the plaint schedule property and that is why the appellant chose to purchase the plaint schedule property, in spite of the fact that it was subject to mortgage with the DCB and three court attachments. It is true that from the description of the boundaries of the plaint schedule property it is revealed that the property which is situated on the western side of the plaint schedule property is the property of the wife of the 2nd defendant. Even then, as I have already noted above, the 2 nd defendant has taken the risk of purchasing the scheduled property in spite of the fact that it is subject to mortgage with DCB and three court attachments. As I have already noted above, generally, a bona fide purchaser will not purchase such a property by spending his hard earned money. Unless the 2 nd defendant is a close associate of the 1st defendant, after coming to know about such encumbrance and attachments, he would not have purchased the plaint schedule property. Therefore, the above explanation offered by the 2nd defendant for purchasing the scheduled property in spite of such encumbrance and attachments, also cannot be believed. In the above circumstance, the only RFA No. 638 of 2008.
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2025:KER:58837 probability is that the 2nd defendant is a close associate and wellwisher of the 1st defendant, as contended by the plaintiff. If so, the case of the 2 nd defendant that he was a bona fide purchaser of the scheduled property having no knowledge about Exhibit A1 sale agreement, could not be believed.
23. It is true that section 19(b) of the Specific Relief Act protects a bona fide purchaser for value and without notice, against a claim for specific performance of an agreement for sale entered into prior to the sale deed. However, Section 55(6)(b) of the Transfer of Property Act provides for a charge in favour of the purchaser if he has not improperly declined delivery of the property. In the instant case, the plaintiff has not improperly declined to accept the delivery of the plaint schedule property, and the agreement could not be performed only due to the default of the 1st defendant. In the above circumstances, by virtue of Section 55(6)(b) of the Transfer of Property Act, there is a statutory charge in favour of the plaintiff for the advance amount of Rs. 5,05,000/- paid by him to the 1 st defendant. Now the question to be considered is whether the above charge available under Section 55(6)(b) of the Transfer of Property Act is subject to the protection under section 19(b) of the Specific Relief Act and section 100 of the Transfer of Property Act.
24. Relying upon the decision of the Hon'ble Supreme Court in Thekkattu Hajara Ibrahim v. Mohammed Kutty and others, [2024] 0 (SC) RFA No. 638 of 2008.
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2025:KER:58837 1260, the learned counsel for the appellant would argue that Charge under Section 55(6)(b) of the Transfer Property Act will not lie against a bona fide purchaser for valid consideration. However, in the above decision, the property was assigned in performance of the 1st sale agreement and the person who claimed charge was the purchaser in the 2nd sale agreement. The seller rescinded the 2nd agreement and it was not challenged by the plaintiff. He also has not sued for specific performance. It was in the above context that the Apex Court held that the plaintiff in the suit is not entitled to get a charge under Section 55(6)(b). In the instant case, the earlier agreement was that of the plaintiff and the appellant is the subsequent purchaser. In the above circumstances, the above decision has no application in the facts of this case.
25. In the decision in K. A. Sebastian v. Bipin O. Nair and another, AIR 2004 Ker. 265, a learned single judge of this Court, while considering the impact of Section 100 and Section 55(6)(b) of the Transfer of Property Act held that, the charge will be binding on all persons even if it is a transfer for consideration and without notice.
26. In the decision in Delhi Development Authority v. Skipper Construction CO.(P) Ltd., and Others, (2000) 10 SCC 130, the Hon'ble Supreme Court, while evaluating the charge available to a purchaser under Section 55(6)(b) of the Transfer of Property Act held in paragraph 29 and 30 as RFA No. 638 of 2008.
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2025:KER:58837 follows :-
"29. Points 1 and 2 These points depend upon the effect of the provisions in sub-s.(6) of S.55 of the Transfer of Property Act. That section starts with the words: "In the absence of a contract to the contrary", and reads thus (insofar as it is material for our purpose):
"55. (6)(b) The buyer is entitled --
(a) xxxx xxxx xxxx
(b) unless he has improperly declined to accept delivery of the property to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase money property paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission." (emphasis supplied) It is plain from the above provision that, in the absence of a contract to the contrary, the buyer will have a charge on the seller's interest in the property which is the subject matter of the sale agreement insofar as the purchase money and interest on such amount are concerned, unless the buyer has improperly declined to accept delivery. The charge is available against the seller and all persons claiming under him. This charge in favour of the buyer is the converse of the seller's charge under S.55(4)(b). The buyer's charge under this section is a statutory charge and differs from a contractual charge which a buyer may be entitled to claim under a separate contract (M. M. R. M. Chettiar Firm v. S. R. M. S. L. RFA No. 638 of 2008.19
2025:KER:58837 Chettiar Firm, AIR 1941 PC 47 : 46 CWN 57). No charge is available unless the agreement is genuine (Trimbak Narayan Hardas v. Babulal Motaji, 1973 (2) SCC 154 : AIR 1973 SC 1363). As pointed out in Mulla's Commentary on Transfer of Property Act, 8th Edn. (p. 411), the charge on the property under S.55(6)(b) is enforceable not only against the seller but against all persons claiming under him. Before the amending Act of 1929, the words "with notice of payment" occurred after the words "all the persons claiming under him". These words were omitted as they allowed a transferee without notice to escape. After the amendment of 1929, notice to the purchaser has now become irrelevant.
30. When the property upon which the charge is created gets converted into another form, the buyer will be entitled to proceed against the substituted security. This is a general principle of law and S.73 of the Transfer of Property Act is only an example of the said principle. The above principle has been applied to enforce mortgage on substituted securities (see Barhamdeo Prasad v. Tara Chand (1913 (41) IA 45 : 12 All LJ 82 : 16 Bom LR 89 : ITR 1914 (41) Cal 654 (PC)) and Surapudi Muniappa v. Nookala Seshayya Gari Subbaiah (AIR 1917 Mad. 880)). The same principle which is applicable to mortgages applies to cases of statutory charge under S.55(6)(b). If immovable property is charged and is converted into another property or money, then the charge will fasten on the property or money into which the subject matter of the agreement is converted.
27. In the decision in Krishnamenon v. Pradeep Kumar and Anr. (AS No. 249 of 2001 dated 2.12.2016 - 2017 1 KHC 283), in a similar RFA No. 638 of 2008.
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2025:KER:58837 instance, while an agreement for sale was in force in favour of the plaintiff, the 1st defendant executed a sale deed in favour of the 2 nd defendant. In the suit filed by the plaintiff for specific performance, the trial court has directed the 1 st defendant to pay the advance amount. However, the trial court refused to grant charge on the plaint schedule property for the amount covered by the decree. However, in appeal, reversing the above finding of the trial court, a Division Bench of this court held that the charge under Section 55(6)(b) of the Transfer of Property Act is available even against a bona fide transferee for value from the seller. In paragraph 21, the Division Branch held as follows :-
"21. The legal position that emerges from the decisions referred to above is that, the provisions under clause (b) of subsection (6) of Section 55 of the Transfer of Property Act, as amended by Act 20 of 1929, makes the charge of the buyer for the purchase-money properly paid effective not only against the seller, but also against all persons claiming under him, irrespective of notice of such payment of purchase-money. Therefore, the charge provided under clause (b) of sub-section (6) of Section 55 of the Act is available even as against a bona fide transferee for value from the seller."
28. In the light of the above discussions, it can be seen that the charge under Section 55(6)(b) of the Transfer of Property Act is available even against a bona fide transferee for value from the seller. At the same time, in this case there is no evidence to prove that the 2 nd defendant is a bona fide purchaser for RFA No. 638 of 2008.
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2025:KER:58837 value. Therefore, I have no hesitation in holding that the plaintiff in this case is entitled to get a charge for the advance amount paid by him, in the plaint schedule property. In the above circumstance, the trial court was justified in holding that the plaintiff is entitled to get a charge for the decreetal amount in the plaint schedule property. I do not find any irregularity or illegality in the impudent judgment and decree of the trial court so as to call for any interference. Points are answered accordingly.
In the result, this appeal stands dismissed with costs. All pending interlocutory applications in the appeal will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge Mrcs/25.7.