VOMISETTI PAPARAO Vs. JANNADA VENKATARAMANA
LAWS(APH)-1969-10-13
HIGH COURT OF ANDHRA PRADESH
Decided on October 01,1969

VOMISETTI PAPARAO Appellant
VERSUS
JANNADA VENKATARAMANA Respondents


Cited Judgements :-

B RAJAMANI VS. AZHAR SULTANA [LAWS(APH)-2004-12-122] [REFERRED TO]
GOMI BAI VS. UMA RASTOGI [LAWS(APH)-2004-12-88] [REFERRED TO]
ARUNACHALA THEVAR AND ORS. VS. GOVINDARAJAN CHETTIAR AND ORS. [LAWS(MAD)-1976-12-39] [REFERRED TO]


JUDGEMENT

RAMACHANDRA RAJU, J. - (1.)This Letters Patent Appeal arises out of a suit O. S. No. 137 of 1967 on the file of the court of the District Munsif, Kakinada, for specific performance of an agreement of sale dated 14-1-1960 executed by the defendants 1 and 2 in favour of the plaintiff agreeing to sell the plaint scheduled property to the plaintiff for a sum of Rs. 3,900/- and for possession of the same after ejecting the defendants 1 and 2 and the 3rd defendant, subsequent purchaser therefrom or in the alternative to pass a decree for a sum of Rs, 504-20 np, with interest being the amount of advance received by defendant 1 and 2 and for a sum of Rs. 2,000/- towards damages for breach of contract: The 3rd defendant purchased the suit property for the same amount of Rs. 3,900/- under sale deed (Ex. B-4) dated 2-2-196 executed by defendants 1 and 2. The 3rd defendant resisted the suit claiming the benefit of the exception as provided under 27 (b) of the Specific Relief Act, alleging that he had no notice of the prior agreement of sale in favour of the plaintiff and that he is a bona fide purchaser for value. The trial court found that the 3rd defendant had notice of the prior agreement of sale in favour of the plaintiff and accordingly decreed the suit for specific performance. Against the said decision the 3rd defendant filed an appeal in the court of the Subordinate Judge at Kakinada. In the appeal the learned Subordinate Judge accepted the contention of the 3rd defendant that he purchased the suit property and obtained the sale deed (Ex. B-4) without the knowledge of the prior agreement of sale in favour of the plaintiff, But, however, he held that the 3rd defendant cannot be held to be a bonafide purchaser for value without notice of the prior agreement of sale in favour of the plaintiff on the ground that the 3rd defendant did not pay the entire sale consideration amount under Ex. B-4 before he came to know about the prior agreement of sale in favour of the plaintiff. Ex. B-4 shows that out of the consideration amount Rs. 3,900/- a sum of Rs. 3,207-25 was paid before the Registrar at the time of the registration of the sale deed and the balance sum of Rs. 692-75 was left with the 3rd defendant to be pared to the Government in discharge of some loan and taxes due on the land from defendants 1 and 2. It has been found that this amount of Rs. 692-75 was not paid by the 3rd defendant in full to the Government before he had notice of the prior agreement of sale in favour of the plaintiff. On these facts the learned Subordinate Judge came to the conclusion that part of the consideration stipulated for the sale was not paid before the 3rd defendant became aware of the agreement of sale and accordingly he is not entitled to the benefit as provided under Section 27 (b) of the Specific Relief Act, and decreed the claim of the plaintiff for specific performance. Aggrieved by the said decision of the learned Subordinate Judge the 3rd defendant took the matter in Second Appeal: The appeal came to be disposed of by Mr. Justice Chandrasekhara Sastri on 28th day of February 1957. The learned Judge after holding that the undertaking given by the 3rd defendant to pay the loan and taxes due to the Government from defendants 1 an 2 does not amount to no more than a promise to pay and it does not amount to actual payment and accordingly agreed with the learned Subordinate Judge and dismissed the second appeal. It is against the said decision of the learned Judge with leave this Letters Patent Appeal has been filed.
(2.)Therefore the question that falls for our consideration is whether when the 3rd defendant was allowed to retain with him a sum of Rs. 692-75 out of the sale consideration amount of Rs. 3,900/- after paying the balance of Rs. 3,207-25 in cash to defendants 1 and 2, the vendors, to pay that amount to the Government in discharge of a loan and taxes due to the Government from defendants 1 and 2 on the land sold, amounts to payment to the defendants 1 and 2 and therefore it can be said that the entire consideration amount of Rs. 3,900/- has been paid by the 3rd defendant to defendants 1 and 2 at the time of the registration of the sale deed and therefore before he learnt about the prior agreement of sale in favour of the plaintiff which happened to be subsequent to the registration of the sale deed (Ex. B-4).
(3.)At this stage it may be convenient to read Section 27 of the Specific Relief Act of 1877 which is the same as Section 19 of the present Specific Relief Act of 1963 and so far as it is relevant for our purpose it is as follows:-
"S. 27 : Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against - (a) either party thereto ; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; ........................" By a plain reading of the above provision it appears that a subsequent purchaser in order to successfully resist a suit for specific performance of a prior agreement of sale must establish that be is a purchaser for value without notice of the prior agreement of sale and he paid the consideration money for the sale before he had notice of the prior agreement of sale. Tn order to better appreciate what 'payment' means, it is necessary to examine some decided cases on this point, The following are the decisions relied on by the Bar on either side in this connection : HIMATLAL MOTILAL Vs. VASUDEO GANESH MAKESHAR, GUDUR RANGA REDDY AND OTHERS Vs. GUNDALA PITCHI REDDI & ANOTHER, ARUNACHALA THEVAN Vs. MADAPPA THEVAR AND OTHERS, MARWADI SUMMERMAL JAMATRAT Vs. B. THUKKAPPA, SMT. MARY JOSEPH Vs. TAYUB MOHAMED HAJEE MOOSA AND CO. AND ANOTHER, SATYA MAMALINI AND ANOTHER Vs SAHADUR MONDAL AND OTHERS, VEERAMALAI VANNIAR AND OTHERS Vs, THADIKARA VANNIAR AND OTHERS,

;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.