Madras High Court
Angayarkanni vs Sundaramoorthy on 28 October, 2024
S.A.No.1010 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 02.08.2024
JUDGMENT PRONOUNCED ON : 28.10.2024
CORAM
THE HON'BLE MRS. JUSTICE N.MALA
S.A.No.1010 of 2021
and
CMP.No.19003 of 2021
Angayarkanni ...Appellant
vs
1. Sundaramoorthy
2. Arikrishnan
3. Kamala @ Selvi
4. Sundar @ Munisamy
5. Patchaiammal
...Respondents
Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure
Code, 1908 to set aside the Judgment and Decree dated 10.11.2014 passed in
O.S.No. 52 of 2008 by Additional Sub Judge at Pondicherry as confirmed in the
Judgment and Decree dated 20.07.2021 passed in A.S.No.1 of 2015 by the Honble
Principal District Judge at Puducherry.
For Appellant : Mr.C.Ravichandran
For Respondents : Mrs.V.Kamala Kumar
for R1
For RR2 to 5 – No appearance
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1/27
S.A.No.1010 of 2021
JUDGMENT
th
The 5 defendant in the suit is the appellant in the Second Appeal. The
Second Appeal is filed against the confirming judgment of the lower appellate
court decreeing the plaintiff's suit for declaration of title and permanent injunction.
2.The parties will be referred to as per their rank in the trial court.
Gist of the Plaint and Amended Plaint:
3. The plaintiff filed the suit for declaration of title and for permanent
injunction. The defendants 1 & 2 were the original owner's of the suit property
having purchased the same under registered sale Deed dated 18.01.1996. The
defendants 1 & 2 entered into a sale agreement with the plaintiff on 04.06.1997
for sale of the suit property for sale consideration of Rs.25,000/-, received a sum
of Rs.15,000/- as advance and thereafter received a further sum of Rs.5,000/- as
advance. As defendant's failed to execute the sale Deed in terms of the sale
Agreement, the plaintiff filed the suit in O.S.No.211 of 1999 on the file of the
Additional Subordinate Judge, Puducherry, for specific performance. The
defendant's 1 & 2 executed the sale Deed on 17.08.1999 in favour of the plaintiff
and thereafter the suit was dismissed as not pressed on 29.10.1999. According to
the plaintiff, he was put in possession of the suit property and the Patta was also
transferred in his name. The plaintiff states that while the plaintiff tried to take
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rd
steps to secure the property by putting up a fence, the 3 defendant objected to the
same. The matter was taken to the police station and it was then that the plaintiff
st nd
came to know that the 1 and 2 defendants with a view to defraud the plaintiff, in
rd rd
collusion with the 3 defendant, executed a Power of Attorney in favour of the 3
rd
defendant on 04.06.1998, for sale of the property and the 3 defendant in
th
pursuance of the Power of Attorney executed a sale Deed in favour of the 4
th th
defendant on 16.07.1998. The 4 defendant thereafter sold the property to the 5
defendant on 05.03.2007. The plaintiff states that all the transactions of the
defendant's were fraudulent, sham and nominal and not binding on the plaintiff.
The plaintiff left with no other option was hence constrained to file the suit for
declaration of his title and for permanent injunction restraining the defendant's
from interfering with his peaceful possession and enjoyment of the suit property.
st nd
4. The defendant's filed separate written statement. The 1 and 2 defendant
th
filed a common written statement and so also defendants 3 & 4. The 5 defendant
filed a separate written statement.
5. The gist of the defendant's written statements are as follows:
The defendant's 1 & 2 filed a written statement denying generally all the
averments made in the plaint. The defendant's 3, 4 & 5 denied the plaintiff's
rd
contention that the defendant's 1 & 2 colluded with the 3 defendant and executed
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a Power of Attorney in favour of the 3 defendant to thwart the plaintiff's efforts
to enforce the agreement of sale in his favour. The defendant's further denied the
plaintiff's possession of the suit properties. According to the defendant's, it was the
plaintiff who had colluded with the defendant's 1 & 2 and created the alleged suit
Agreement and maneuvered to obtain the judgment and decree in O.S.No.211 of
1999. According to the defendant's the alleged sale Agreement was a fraudulent
st nd
document purposely manipulated by the plaintiff in collusion with the 1 and 2
defendant to defeat the lawful right, title and interest of the defendant's 3, 4 & 5.
th
The 5 defendant apart from reiterating the contentions of the defendant's 3 & 4
further submitted that she was a bonafide purchaser for value of the suit property.
th
The 5 defendant further stated that the plaintiff had approached the court with
unclean hands by giving an entirely false story on her right to the suit property.
6. Before the trial court the plaintiff examined himself as P.W1 and marked
rd
Ex.A1 to Ex.A13. The 3 defendant examined himself as D.W1, the Power Agent
th st
of the 5 defendant examined himself as D.W2 and the 1 defendant examined
himself as D.W3. The defendant's marked Ex.B1 to Ex.B6 on their side.
7. The trial court framed relevant issues and additional issues. The trial
court held that the sale Deed dated 17.08.1999 in favour of the plaintiff by the
defendant's 1 & 2 was true and valid. The trial court further found that the Power
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rd th
of Attorney in favour of the 3 defendant and the sale Deeds in favour of the 4
th
and 5 defendants were not genuine documents. The trial court also found that the
plaintiff as absolute owner of the suit property was entitled to the relief of
permanent injunction. On the said findings the trial court decreed the suit as
prayed for.
th
8. Aggrieved by the judgment and decree of the trial court, the 5 defendant
preferred the appeal in A.S.No. 1 of 2015 on the file of the Principal District
Judge, Puducherry. The lower appellate court concurred with the finding of the
trial court that the plaintiff had proved the validity and genuineness of the sale
Deed in his favour. The lower appellate court on the basis of the evidence of
D.W3 held that the plaintiff was in possession of the suit property. The lower
appellate court on its aforesaid findings confirmed the judgment and decree of the
trial court.
9. Aggrieved by the concurrent judgment and decree of the courts below,
th
the 5 defendant has filed the above Second Appeal.
10. Learned counsel for the appellant/ 5th defendant referring to the
substantial questions of law submitted that the suit as framed was not maintainable
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for failure of the plaintiff to challenge the sale Deed dated 16.07.1998, under
Ex.A7, and the sale Deed dated 05.03.2007, under Ex.B4, by way of declaration
that same were null, void, sham, nominal and not binding on the plaintiff. Learned
counsel further submitted that courts below failed to note that title over the suit
property under Ex.A5 dated 17.08.1999 did not pass to the plaintiff, since on the
date of execution of the said sale Deed, the defendants 1 and 2 had lost their title
over the said property, in view of the sale Deed dated 16.07.1998 under Ex.A7
equivalent to Ex.B3. Learned counsel further submitted that the courts below
failed to note that the plaintiff had failed to discharge the burden cast on him and
that it was settled principle of law that the plaintiff could not pick loop-holes in the
defendants case and the plaintiff has to succeed on the strength of his own case.
The learned counsel submitted that as the court's below committed grave error in
appreciation of the facts and law involved in the case, the Second Appeal should
be allowed.
11. Learned counsel for the respondents on the other hand submitted that the
Second Appeal deserved to be rejected as no substantial questions of law were
involved. Learned counsel submitted that this court under Section 100 CPC could
not interfere with the concurrent findings of fact of the courts below. Learned
counsel referring to first substantial question of law submitted that the execution
of the agreement of sale dated 04.06.1997 under Ex.A1 was not disputed by the
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defendants 1 and 2, owners of the property and further the courts below
concurrently found that Ex.A1, was not forged document, created in collusion
with the defendants 1 and 2, and hence charge was created in favour of the
plaintiff in respect of the suit property on the basis of Ex.A1. Learned counsel
relied on Section 55(6)(b) of Transfer of Property Act,1882 and also judgment of
Hon’ble Supreme Court in the case of Videocon Properties Ltd. Dr.Bhalchandra
Laboratories and others reported in (2004) 3 SCC 711, in support of her
submission. Learned counsel further submitted that under Ex.A1, not only a
charge was created in the suit property in favour of the plaintiff but also Ex.A1,
created a right and interest in favour of the plaintiff over the suit property, in as
much as the plaintiff was handed over physical possession of the suit property by
the defendants 1 and 2 under Ex.A1, bringing into play part performance as
contemplated under Section 53-A of the Transfer of Property Act,1882.
12. As regards, the 2nd substantial question of law, learned counsel for the
plaintiff submitted that as the plaintiff and the defendants 1 and 2 had no
knowledge of the sale Deed dated 16.07.1998 under Ex.A7, executed by the 3rd
defendant as power agent of the defendants 1 and 2 in favour of his wife, 4 th
defendant, the plaintiff could not be expected to pray for setting aside the same.
Learned counsel, relying on Section 19(b) of the Specific Relief Act, 1963
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submitted that the rights of the subsequent purchaser, the appellant/ 5th defendant
herein were subject to the decree of specific performance, as the suit agreement
was enforceable against them, unless it was proved by the subsequent purchaser,
that the appellant/ 5th defendant was a bonafide purchaser for value without notice
of the original agreement. Learned counsel for the plaintiff relied on the Judgment
of the Hon’ble Supreme Court in the case of Maharaj Singh &Ors. Vs. Karan
Singh (Dead) thr. Lrs. &Ors., in Civil Appeal No.6782/2023, in support of the
above proposition. Learned counsel therefore submitted that there were no merits
in the Second Appeal and same deserved to be dismissed.
13. I have heard both the learned counsels and perused the materials placed
on record.
14. This Court admitted the Second Appeal on the following substantial
questions of law:
(i) Whether the lower Appellate Court committed error in
holding that Defendants 1 and 2 had created a charge in favour of
the Plaintiff in respect of the suit property on the basis of
agreement of sale deed dated 04.06.1997 under Ex.A1?
(ii) Whether the execution of sale deed by Defendants 1 and
2 on 17.08.1999 in favour of the Plaintiff, without setting aside the
sale deed dated 16.07.1998 in favour of the 4th Defendant and
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granting of declaratory decree by the Courts below can be
sustained?
Gist of facts of the case:
15. The undisputed fact is that the suit property belonged to defendants 1
and 2, they having purchased the same on 18.01.1996 under a registered
Document No.200 of 1996 from one Rathinam under Ex.A4. The said defendants
as the absolute owners of the suit property executed an agreement of sale (Ex.A1)
in favour of the plaintiff on 04.06.1997, agreeing to sell the same for a sale
consideration of Rs.25,000/- and received a sum of Rs.15,000/- as advance. The
defendants having failed to perform their part under the agreement of sale, the
plaintiff filed the suit for specific performance in O.S.No.211 of 1999. In the suit
the defendants 1 and 2 appeared and expressed their unconditional willingness to
execute a sale Deed in favour of the plaintiff. Accordingly, the sale Deed was
executed on 17.08.1999 by the defendants 1 and 2 in favour of the plaintiff under
Ex.A5. Thereafter the suit in O.S.No.211 of 1999 was disposed of by the judgment
and decree dated 29.10.1999 under Ex.A2 and Ex.A3 as not pressed. According to
the plaintiff, he was put in possession of the suit property in pursuance of the sale
on 17.08.1999. While so, the plaintiff came to know that the defendants 1 and 2
executed a general Power of Attorney dated 04.06.1998 and registered the same on
15.07.1998 under Ex.A6 in favour of the 3rd defendant and the 3rd defendant on
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the next day registered a sale Deed under Ex.A7 in favour of his wife, the 4th
defendant. Thereafter under Ex.B4, dated 05.03.2007, the 4th defendant executed a
sale Deed in favour of the 5th defendant. According to the plaintiff, when he was
trying to put up a fence to secure his possession of the suit property, the defendants
objected and prevented the plaintiff from going ahead with the construction. For
five years thereafter stalemate continued. Again on 20.01.2008, when the plaintiff
tried to clean up the suit property for starting construction, the 3rd defendant
stopped the plaintiff and threatened him with dire consequences, if he continued
the work. The plaintiff reported the same to Mettupalayam Police Station on the
same day, but the police officials advised the plaintiff to seek redress before a
court of law, as the dispute was of civil nature. The plaintiff was therefore
constrained to file the suit for declaration of title and permanent injunction.
16. The defendants 3, 4 & 5 stated that the plaintiff colluded with the
defendants 1 and 2 and created agreement of sale ante-dating the same.The
defendants further submitted that the suit, O.S.No.211 of 1999, was a collusive
suit filed with malafide intention to defeat the lawful right, title and possession of
the 5th defendant. The defendants further stated that the sale Deed in favour of the
plaintiff did not convey any right, title and interest to the plaintiff, as the alleged
sale Deed was manipulated by him and never acted upon. The defendants stated
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that the alleged sale agreement and the sale Deed in favour of the plaintiff was
sham and nominal. The defendants therefore prayed for dismissal of the suit. The
defendants 1 and 2 filed a written statement denying generally all the contentions
and allegations raised in the plaint and prayed for the dismissal of the suit.
Discussions:
II Substantial Question of law:
17. At the outset the relevant recitals of the sale agreement Ex.A1 executed
by the defendants 1 and 2 in favour of the plaintiff under Ex.A1 on 04.06.1997 are
extracted. They are as follows:
@,jdoapy; fd;l brhj;jhdJ 18/01/1996?y; vGjp.
Chth;fiu cjtpg; gjpthsh; mYtyfj;jpy; g[f;?1.
thy;a{k;?1060?y; gf;fk; 237 Kjy; 239 tiuapy;
200?Mk; vz;zhfg; gjpag;gl;l fpuag;gj;jpug;go ek;kpy;
1?tJ ghh;l;of;Fr; brhe;jkhdJk;. mtuJ
mDnghfj;jpYk;. RthjPdj;jpYk; ,Ue;J tUtJkhd
gpd;dhy; brhj;J tpguj;jpy; Fwpg;gplg;gl;l brhj;ij
ek;kpy; 2?tJ ghh;l;of;F tpw;f rk;kjpj;J
,Ughh;l;ofSk; tpiyngrp jPh;j;Jf;bfhz;l fpuatpiy
U:gha;/25.000-? (U:gha; ,Ugj;ije;jhapuk; kl;Lk;) ,jpy;
,d;iwa njjpapy; ek;kpy; Kjy; ghh;l;o 2?tJ
ghh;l;oaplkpUe;J mr;rhukhf bgw;Wf;fbfhz;lJ
U:gha;/15.000-? (U:gha; gjpide;jhapuk; kl;Lk;)/ ghf;fp
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fpuaj;bjhifia ek;kpy; 2?tJ egh; ,d;WKjy;
10?(gj;J) khj fhybfLt[f;Fs; 1?tJ ghh;l;oaplk;
bfhLj;J jd;brhe;j brytpy; fpuag; gj;jpuk; vGjp
fpuak; bgw;Wf;bfhs;s ek;kpy; 2?tJ ghhl;o
rk;kjpf;fpd;whh;/
nkw;Fwpg;gpl;lg;go ek;kpy; 1?tJ ghh;l;o 2?tJ
ghh;l;oaplkpUe;J i& mr;rhuj; bjhifiag;
bgw;Wf;bfhz;L gpd;fz;l brhj;jpy; xhp$pdy;
gj;jpuj;ij ek;kpy; 2?tJ ghh;l;oaplk;
xg;gilj;Jtpl;lhh;/ nkw;fz;l bfLt[f;Fs; 1?tJ
ghh;l;o gpd;fz;l brhj;jpw;Fz;lhd rfytpjkhd
K:yj!;jhnt$;fs;. 30?tUlj;jpw;Fz;lhd tpy;y';f
rhd;wpjH; kw;Wk; brhj;ij mse;J rh;nt bra;J
gpd;fz;l brhj;ij ek;kpy; 1?tJ ghh;l;of;nf gl;lh
khw;wk; bra;J brhj;ij rh;t tpy;y';f fj;jpaha;
ek;kpy; 2?tJ ghh;l;of;nf fpuak; bra;Jf;bfhLj;J
ghf;fp fpuaj;bjhifia bgw;Wf;bfhs;s 1?tJ ghh;l;o
rk;kjpf;fpd;whh;/ mjdhy; ,d;iwa njjpapnyna
gpd;fz;l brhj;ij 2?tJ ghh;l;of;F RthjPdk; bra;J
bfhLj;J ,lj;ija[k; ,d;iwa jpdnk 1?tJ ghh;l;o
xg;gilj;Jtpl;lhh;fs;/
nkw;Fwpg;gpl;lgpufhuKk; mjhtJ bfLt[f;Fs;
1?tJ ghh;l;o nkw;fz;l tpjkhf vy;yhtpjkhd
j!;jhnt$;fSld; jhahuhf ,Ue;J fpuak; bra;Jf;
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bfhLf;f Vjthf 1?tJ ghh;l;o mwptpg;g[ nehl;O!;
bfhLj;Jk; 2?tJ ghh;l;o fpuak; bra;Jf; bfhs;sj;
jtwpdhy; ,d;iwa njjpapy; 1?tJ ghh;l;oaplk;
bfhLj;j ml;thd;!; bjhifia ,He;Jtplntz;oaJ/
nkw;Fwpg;gpl;l gpufhuKk; mjhtJ bfLt[f;Fs;
2?tJ ghh;;l;o fpuak; bgw;Wf;bfhs;sj; jahuhf ,Ue;J
1?tJ ghh;l;o fpuak; bra;Jf;bfhLf;fj; jtwpdhy; i&
2?tJ ghh;l;o gpd;fz;l brhj;jpd; kPJk;. 1?tJ
ghh;l;oapd; kPJk; nfhh;l;oy; @!;bgrpgpf; bgh;ghkd;!;
upyPg; Mf;l;@?d; fPH; tHf;F bjhlh;e;J ghf;fp
fpuaj;bjhifia 1?tJ ghh;l;opapd; bgawpy; nfhh;l;oy;
brYj;jp i& nfhh;l;lhh; K:yk; nry;?OL ofpup bgw;W
gpd;fz;l brhj;ij 2?tJ ghh;l;lna fpuak;
bgw;Wf;bfhs;st[k;. i& nfhh;l; bryt[. !;lhk;g; L:l;o
Kjyhd midj;J bryita[k; 1?tJ ghh;l;ona
Vw;Wf;bfhs;st[k; rk;kjpf;fpd;whh;/
nkw;Fwpg;gpl; bfLt[f;Fs; gpd;fz;l brhj;ij
1?tJ ghh;l;o vt;tpj tpy;y';fj;jpw;F cl;gLj;jnth
my;yJ ntW ahUlDk; Kd;njjpapl;L mr;rhu
cld;gof;if bra;Jf;bfhs;snth. my;yJ
bghJmjpfhuk; bra;Jf;bfhLf;fnth 1?tJ ghh;l;of;F
cupikapy;iy ? mg;go nkw;fz;lthW VnjDk;
tpy;y';fk; Vw;gLj;jpdhy; mJ 2?tJ ghh;l;oia
vt;tpjj;jpYk; fl;Lg;gLj;jhJ vd;Wk; 1?tJ ghh;l;o
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cWjp mspf;fpd;wdh;/@
18. Before proceeding further, in my view, it is necessary for better
appreciation of the facts to refer to the documents and their dates.
S.No. Exhibits Description of Documents Dates
1. Ex.A1 Sale Agreement executed by D1 & D2 in favour of 04.06.1997
plaintiff on or before 04.04.1998
2. Ex.A6 Deed of Power of Attorney executed by D1 & D2 in 04.06.1998
favour of D3
3. Ex.A7 Sale deed executed by D3 in favour of D4 16.07.1998
4. Ex.A5 Sale Deed executed by D1 & D2 in favour of plaintiff 17.08.1999
5. Ex.A2 Judgement in OS/211/1999 29.10.1999
6. Ex.A3 Decree in OS/211/1999 29.10.1999
19. Keeping in mind the above dates the recitals in the sale Agreement are
alluded to. From a reading of the terms of the sale agreement, it is clear that the
plaintiff agreed to have the sale Deed executed in his favour within 10 months of
the sale agreement. The 10 month’s period stipulated under the agreement expired
on 04.04.1998. As per the terms of the agreement, between 04.06.1997 to
04.04.1998, the defendants 1 and 2 were precluded from creating any
encumbrance over the property. It was only after the expiry of the 10 months
period precisely 2 months thereafter that, the defendants 1 and 2 executed the
Power of Attorney in favour of the 3rd defendant under Ex.A6. The said power
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was registered on 15.07.1998 and on the very next day, the 3rd defendant executed
the registered sale Deed in favour of his wife, the 4th defendant. It was long after
the execution of the sale Deed in favour of the 4th defendant under Ex.A7 that the
plaintiff issued the suit notice dated 19.04.1999 in O.S.No.211 of 1999 to the
defendants 1 and 2. The plaintiff stated that neither he, nor the defendants 1 and 2
had knowledge of the execution of the sale Deed, Ex.A7 by the 3 rd defendant in
favour of the 4th defendant and therefore the defendants 3 and 4 were not
impleaded in the suit in O.S.No.211 of 1999. It is to be seen if the said contention
of the plaintiff can be endorsed.
20. From the terms of the sale agreement extracted supra, it is clear that the
defendants 1 and 2 were restrained from encumbering the property by way of
lease, sale, Power of Attorney etc., for a period of 10 months from the date of
agreement of sale and the said period expired on 04.04.1998. It was therefore the
bounden duty of the plaintiff to cause reasonable enquiry on the encumbrance, if
any, over the property beyond 04.04.1998. Admittedly, the Power of Attorney was
executed in favour of the 3rd defendant by the defendants 1 and 2 on 04.06.1998
i.e two months after the period stipulated in the agreement and the said Power of
Attorney was registered on 15.07.1998. On the next day (ie) on 16.07.1998, the
3rd defendant executed the registered sale Deed in favour of the 4th defendant i.e.
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16.07.1998. It is not the case of the plaintiff in the plaint that before getting the
sale Deed in his favour from the defendants 1 & 2, he had enquired with them
about creation of any encumbrance over the property. Even in the evidence of the
plaintiff, there is no such statement. It would be very relevant to note here that the
plaintiff admitted that he is a real-estate dealer. The plaintiff is therefore
conversant with the formalities of registration of documents, encumbrance
certificates etc. Prudence therefore required the plaintiff to verify the encumbrance
over the property before registration. It is further pertinent to note that the plaintiff
in his evidence deposed that on 20.12.2002 he complained to the police against the
rd
3 defendant, and he was advised to file civil suit and that even after knowledge of
th
the 4 defendant's sale Deed, the plaintiff did not take any steps to cancel it. The
relevant portion is as follows:
@20/12/2002 ,y; g[fhh; bfhLj;njd;/ ehDk;. 3tJ
gpujpthjpa[k; gj;jpuk; itj;Js;sjhy; ePjpkd;wk; K:yk;
jPh;f;f brhd;dhh;fs;/ gpujpthjpa[k; fpiuag; gj;jpuk;
itj;Js;sJ bjhpa te;j gpwF me;j gj;jpuj;ij
uj;J bra;a eltof;if VJk; vLf;ftpy;iy/@
rd
The plaintiff even in the plaint admits that the statement with the 3 defendant
continued for 5 years after the police compliant on 20.12.2002. The plaintiff has
not given any plausible reasons for not taking steps against the defendant's
documents eventhough he was aware of the same 5 years prior to the suit. As the
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plaintiff failed either to enquire the defendants 1 and 2 or to verify the
encumbrance over the property, the contention of the plaintiff that he was not
aware of the Power Deed in favour of the 3rd defendant and the sale Deed in
favour of the 4th defendant and therefore he did not implead them as parties in the
suit O.S.No.211 of 1999, in my view, cannot be accepted.
21. Even the suit O.S.No.211 of 1999, in my view is a collusive suit
between the plaintiff and the defendants 1 and 2. The plaintiff obtained the
registered sale Deed in his favour under Ex.A5 on 17.08.1999 and the suit was
dismissed as not pressed on 29.10.1999, without even recording the sale in favour
of the plaintiff. No reasons were assigned by the plaintiff for not reporting to the
court about the execution of the sale Deed in his favour, moreso, when the plaintiff
and the defendants recited in the sale Deed that the sale Deed was executed in
pursuance of the undertaking given to the court.
22. In the back drop of the above facts, the learned counsel for the
appellant/ 5 defendant submitted that subsequent purchaser i.e. 4th defendant was
th
a necessary party to the suit in O.S.No.211 of 1999 and in the absence of the 4 th
defendant, no title could be transferred to the agreement holder if he/she was
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successful in the suit for specific performance. Learned counsel relied on several
judgments in support of the said proposition. In my view, it would suffice to refer
to the judgment of this court in the case of Chinna Vannan v. Alamelu and others
reported in 88 L.W 767. It was held as follows:
“4........The agreement-holder can acquire title to the
property only if proper conveyance is executed by the subsequent
purchaser as well. Though this judgment might be interpreted as
holding that the sale deed in purchase of a decree for specific
performance is to be executed only by the subsequent purchaser
and to that extent is not fully supported by the view of the Supreme
Court in Durga Prasad v. Deep Chand the decision is certainly an
authority for the position that the original owner by himself could
not confer or convey any title in respect of the property, which be
bad already sold to a subsequent purchaser. These principles
clearly show that the subsequent purchaser is a necessary party in
a suit for specific performance and the decree should direct both
the owner and the subsequent purchaser to execute the conveyence
in favour of the agreement-holder........”
The Division Bench of this court in the case of A.Ramakrishnan @
Ramakrishnappa Versus N.Parvathi and Others reported in (2024) 1 MLJ 446,
relying on the judgment of the Hon'ble Supreme Court in the case of Lala Durga
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Prasad and Another v. Lala Deep Chand and Others reported in AIR 1954 SC 75,
held as follows:
“19. While dealing with the right of an agreement vendor to
sell the property and the right of a purchaser, after the agreement
of sale, the Hon'ble Supreme Court has clearly spelt out that on
execution of Sale Deed by the agreeement vendor, the title in the
property stood transferred to the subsequent pruchaser and
therefore, the subsequent purchaser should be added as a
defendant and should be made to join execution of the Sale Deed,
so that the title stood transfered to the purchaser if he/she is
successful in a suit for specific performance.”
23. It is therefore clear that in the absence of the 4th defendant, the sale in
favour of the plaintiff is invalid, as the defendants 1 and 2 could not pass title to
the plaintiff, having parted with the same in favour of the 4th defendant before
execution of the sale in favour of the plaintiff.
24. As the tile had passed to the 4th defendant by virtue of Ex.A7, the
plaintiff's title was inchoate. The plaintiff in order to remove the insuperable
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obstruction in the form of sale Deed Ex.A7, in favour of the 4th defendant, ought
to have prayed for declaration that the sale Deed Ex.A4 was null and void, sham,
nominal and not binding on him. So also, the plaintiff should have prayed for
declaration as regards Ex.B4. The plaintiff was not a party to the sale Deeds and
therefore he was not required to seek cancellation of the same. But when the
plaintiff sought to establish his exclusive title he was bound to remove the
unsurmountable obstruction under Ex.A7 & Ex.B4, by praying for a declaration
that the said sale Deeds were invalid so far as he was concerned. I am fortified in
my view by the judgment of this court in the case of Vellayya v. Kamaswami,
reported in ILR (1940) Mad 73, held as follows:
“When, the plaintiff seeks to establish a title in himself and
cannot establish that title without removing an insuperable
obstruction such as a decree to which he has been a party or a
deed to which he has been a party, then quite clearly he must get
that decree or deed cancelled or declared void 'in toto', and his
suit is in substance a suit for the cancellation of the decree or deed
even though it be framed as a suit for declaration. But when he is
seeking to establish a title and finds himself threatened by a decree
or a transaction between third parties, he is not in a position to get
that decree or that deed cancelled 'in toto'. That is a thing which
can only be done by parties to the decree or deed or their
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representatives. His proper remedy therefore in order to clear the
way with a view to establish his title, is to get a declaration that
the decree or deed is invalid so far as he himself is concerned and
he must therefore sue for such a declaration and not for the
cancellation of the decree or deed.”
In the light of the above discussions, I am of the view that the suit of the
plaintiff as framed is not maintainable without a specific prayer to declare the sale
th
Deed dated 16.07.1998 in favour of the 4 defendant as non-est and not binding on
him. I therefore answer the 2nd substantial question of law in favour of the
appellant/ 5th defendant.
25. Though the finding on the 2nd substantial question of law would suffice
st
to allow the Second Appeal, for the purpose of completion the 1 substantial
question of law is also discussed.
I Substantial Question of Law:
26. At this stage, I would like to refer to the judgment of the Hon’ble
Supreme Court in the case of Union of India and others Versus Vasavi
Cooperative Housing Society Limited and Others, reported in (2014) 2 SCC 269.
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The Hon'ble Supreme Court held that “in a suit for declaration of title, the burden
always lies on the plaintiff to make out and establish a clear case for granting
such a declaration and the weakness, if any, of the case set up by the defendants
would not be a ground to grant relief for the plaintiff.” Therefore it is the duty of
the plaintiff to establish his case and he cannot rely on the lacunae in the
defendant's case.
27. It is the contention of the learned counsel for the plaintiff that under
Ex.A1 a charge was created over the suit property in favour of the plaintiff and
therefore the plaintiff was entitled to enforce the said charge against the said
th
property in the hands of third parties. Learned counsel for the appellant/ 5
defendant on the other hand submitted that mere agreement of sale does not of
itself create any interest or charge over the suit property.
Section 54 of the Transfer of Property Act, 1882 reads as follows:
“54. “Sale” defined. - “Sale” is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-
promised.
Sale how made. - Such transfer, in the case of tangible
immoveable property of the value of one hundred ruppees and
upwards, or in the case of a reversion or other intangible thing,
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can be made only by a registered instrument.
In the case of tangible immoveable property of a value less
than one hundred rupees, such transfer may be made either by a
registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when
the seller places the buyer, or such person as he directs, in
possession of the property.
Contract for sale. - A contract for the sale of immoveable
property is a contract that a sale of such property shall take place
on terms settled between the parties. It does not, of itself, create
any interest in or charge on such property.”
28. It is clear from Section 54 of the Transfer of Property Act, that the
agreement of sale does not of itself create any interest or charge in the suit
property. The Hon’ble Supreme Court in the case of Narandas Karsondas Versus
S.A.Kamtam and Another reported in (1977) 3 SCC 247 held as follows:
“32. A contract of sale does not of itself create any interest
in, or charge on, the property. This is expressly declared in Section
54 of the Transfer of Property Act. See Rambaran Prosad V. Ram
Mohit Hazra. The fiduciary character of the personal obligation
created by a contract for sale is recognised in Section 3 of the
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Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The
personal obligation created by a contract of sale is described in
Section 40 of the Transfer of Property Act as an obligation arising
out of contract and annexed to the ownership of property, but not
amounting to an interest or easement therein.”
29. So also Division Bench judgment of this court in its latest judgment
reported in (2024) 1 MLJ 446 held that Section 54 of the Transfer of Property Act
clearly spells that contract of sale by itself does not create any interest over
immovable property. In view of the settled law the contention of the plaintiff that a
charge was created in favour of the plaintiff under Ex.A1, cannot be
countenanced. The courts below on a misconception of the law erroneously held
that under Ex.A1, a charge was created in favour of the plaintiff with respect to the
st
suit property. I therefore answer the 1 substantial question of law in favour of the
th
appellant/ 5 defendant.
30. Though the learned counsel for the respondents raised other issues
relating to Section 19(b) of the Specific Relief Act and Section 53-A of Transfer of
Property Act, and also produced judgments in support of the same, in my view in
the absence of any plea in this regard, the said submissions cannot be entertained.
As the judgments relied on by the learned counsel for the respondents are not
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applicable to the facts of the case, the same are not referred to in the judgment.
31. As regards, the contention of the learned counsel for the plaintiff that the
Second Appeal was not maintainable as the same did not involve any substantial
questions of law, but raised only questions of fact, I am of the view that on the
facts of the case, the said contention cannot be accepted. It is clear from the
judgments of the courts below that they committed grave error in thinking that a
mere agreement of sale created a charge over the property and the suit as framed
was maintainable. In my view the said findings are baseed on total misconception
of law and facts and therefore this court can very well exercise its jurisdiction
under Section 100 CPC.
I therefore find merits in the Second Appeal and hence the same is allowed.
Consequently, connected CMP is closed.
28.10.2024
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation:Yes/No
dsn
To
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1. The Additional Sub Judge,
Puducherry.
2. The Principal District Judge,
Puducherry.
N.MALA,J.
dsn
PRE-DELIVERY JUDGMENT IN
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JUDGMENT PRONOUNCED ON
28.10.2024
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