- (1.) THIS is a plaintiff's second appeal. A suit was filed by Munna Lal for specific performance of an agreement dated 15-2-1969 on the allegations that (Shrimati) Krishna Kumari, his sister, was a co-sharer to the extent of 1/7th share in the disputed house. She was residing with her mother and needed money for her marriage. Consequently she entered into an agreement with Munna Lal, her brother, on 15-2- 1969, to sell her 1/7th share of the house in question, for a consideration of Rs. 800. The entire sum was paid in advance. It was agreed that within two years of her marriage, Shrimati Krishna Kumari defendant No. 1, shall execute a sale deed in favour of the plaintiff. In the event of default he will be entitled to get the same executed through court. It was further alleged that after the marriage of defendant No. 1 she was asked several times to execute the sale deed but she avoided the same. On 8-2-1971, Shrimati Krishna Kumari executed a sale deed in favour of Shrimati Raj Kumari defendant No. 2 with respect to the same property for a consideration of Rs. 1,000. THIS sale deed was duly registered. It is also alleged that at the time of the execution of the sale deed defendant No. 2 knew very well about the agreement of the sale which existed between the plaintiff and defendant No. 1. The plaintiff thus prayed for a decree of specific performance of the contract. In the alternative, a prayer was made for a decree for Rs. 800. with interest.
(2.) THE defendants contested the suit. Defendant No. 1 admitted the allegations in the plaint with regard to the agreement but alleged that she was always willing to execute the sale deed but the plaintiff committed default. As such she subsequently transferred the same in favour of defendant No. 2. Defendant No. 2 contested the suit on the grounds inter alia that at the time of the execution of the agreement between defendant No. 1 and the plaintiff, defendant No. 1 was a minor and as such the agreement was void. It was also pleaded that no consideration of Rs. 800 had passed between the parties. Defendant No. 2 further pleaded that she is a bona fide purchaser for value and as such the plaintiff was not entitled to any decree against her. The Trial Court decreed the suit of the plaintiff. His findings were that the defendant No. 1 was not a minor at the time of the agreement entered into between her and the plaintiff on 15-2-1969. He also held that defendant No. 2 was not a bona fide purchaser because she did not make any enquiries from the members of the family of the plaintiff, before effecting the purchase. Aggrieved thereby an appeal was filed before the Additional District Judge, Etah, which has been allowed by him on 22nd Aug. , 1974. The suit of the plaintiff for specific performance of contract had been dismissed and instead he had been granted a decree for Rs. 800 against defendant No. 1 with costs throughout. In these circumstances, the instant second appeal has been filed. I have heard learned counsel for the parties and have also perused the impugned orders. I have also waded through the oral evidence on the record. This was necessary because the submission made by the appellant's counsel was that the defendant No. 2 was not a bona fide purchaser for value. His submission was that due enquiries had not been made by the defendant No. 2 with respect to the house in dispute before making the purchase. He alleged that purchase had not been effected in good faith and if she had taken due care and made proper enquiries, she would have come to know the correct factual position.
(3.) THE contention on behalf of the respondents' counsel is that the considerations which apply to purchasers of property in cases where the same is transferred by ostensible owner under S. 41 Transfer of Property Act are different from S. 19 (b) Specific Relief Act. I have been referred to a number of cases by the counsel for the parties. Counsel for the appellant has cited some of cases of Privy Counsel viz. , AIR 1932 PC 228, AIR 1934 PC 68 and AIR 1946 PC 97. The ratio which can be derived after a perusal of these cases is that the initial burden of proving that the subsequent transferee is a purchaser in good faith and without notice, lies upon the transferee and not upon the transferor. It is the transferee who has to establish the circumstances which will entitle him to the benefit of this section. There can be no quarrel with this proposition of law. The question, however, is whether this burden has been successfully discharged or not?;