Usha v. Jose and Antony

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR MONDAY, THE 16TH DAY OF JULY 2018 / 25TH ASHADHA, 1940 RSA.No. 1294 of 2017 AGAINST THE DECREE & JUDGMENT IN AS 14/2010 of ADDITIONAL DISTRICT COURT, IRINJALAKUDA DATED 14-11-2017 AGAINST THE DECREE & JUDGMENT IN OS 363/2005 of PRINCIPAL SUB COURT,IRINJALAKUDA APPELLANT IN RSA/APPELLANT IN AS/DEFENDANT NO.1 IN OS. USHA AGED 53 YEARS, W/O.MANDY RAPPAI, MURINGOOR DESOM, MURINGOOR THEKKEMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 683. BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE RESPONDENTS IN RSA/RESPONDENTS IN AS/PLAINTIFF & DEFENDANT NO.2 IN OS: 1. JOSE AGED 60 YEARS, MULLANKUZHI OUSEPH, MURINGOOR VADAKKUMURI VILLAGE AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 683. 2. ANTONY AGED 65 YEARS, MANDI LONAPPAN, GHANNA NAGAR P.O., KORATTY, MURINGOOR THEKKEMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 683. R1 BY ADV. SRI.V.M.KRISHNAKUMAR R2 BY ADV. SRI.R.SREEHARI THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-07-2018 ALONG WITH RSA 166 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **R.S.A. Nos.1294 of 2017 & 166 of 2018** ## **----------------------------------------------Dated 16[th] day of July, 2018.** ## **J U D G M E N T** These second appeals arise from the suit O.S.No.363 of 2005 on the file of the Principal Sub Court, Irinjalakkuda. The appellant in R.S.A.No.1294 of 2017 is the first defendant in the suit and the appellant in R.S.A.No.166 of 2018 is the second defendant in the suit. 2. O.S.No.363 of 2005 is a suit for specific performance. The suit property belonged to the first defendant. On 31.1.2005, the first defendant entered into an agreement with the plaintiff for sale of the suit property and received a portion of the sale consideration by way of advance. The period fixed in terms of the agreement for the plaintiff to obtain conveyance deed in respect of the suit property was four months. The case of the plaintiff is that though he was ready and willing to obtain the conveyance deed in terms of the RSA 1294/17 & 166/18 2 provisions contained in the agreement, the first defendant postponed the execution of conveyance deed for one or other reason. It is alleged by the plaintiff that while so, the first defendant has sold the suit property to the second defendant who is none other than the brother-in-law of the first defendant. The suit was, therefore, filed for specific performance of the agreement for sale. Defendants 1 and 2 filed separate written statements raising various contentions. The trial court repelled the contentions raised by the defendants and decreed the suit. Though the defendants filed separate appeals challenging the decree of the trial court, the appellate court, on a reappraisal of the materials on record, confirmed the decision of the trial court. Hence these appeals by the defendants. 3. Heard the learned counsel for the appellants as also the learned Senior Counsel for the first respondent in the appeals, the plaintiff in the suit. 4. The learned counsel for the appellants contended that in so far as it is admitted by the plaintiff that the suit property was sold by the first defendant to the second RSA 1294/17 & 166/18 3 defendant, the plaintiff ought to have sought a decree for cancellation of the sale deed in favour of the second defendant also. According to the learned counsel, in the absence of a prayer in the suit for cancellation of the sale deed in favour of the second defendant, the suit is not maintainable. It was pointed out by the learned counsel that the courts below have not taken note of the said defect in the suit while passing the impugned decrees. The learned counsel has relied on the decision of the Apex Court in **B.Vijaya Bharathi v. P.Savitri and others** [Laws (SC) 2017 826], in support of the said contention. 5. Ext.A1 is the agreement for sale executed by the first defendant in favour of the plaintiff. Ext.A1 is dated 31.1.2005. Ext.B3 is the conveyance deed executed by the first defendant in favour of the second defendant in respect of the suit property. Ext.B3 is dated 18.7.2005. It is settled that since the agreement for sale does not create any interest in the property, if the property is transferred after the agreement, the transferee of the property shall be made a party to the suit. RSA 1294/17 & 166/18 4 The question is as to whether in a given case where the property is transferred to a third party in defiance of the agreement, the conveyance deed needs to be cancelled by the court for the purpose of granting the decree for specific performance. There is no difficulty in answering this question, for, Section 19 of the Specific Relief Act, 1963 (the Act) provides the answer to the question. The said provision categorically provides that specific performance of a contract may be enforced not only against parties, but also against persons claiming under them by a title arising subsequently to the contract. Section 19 of the Act reads thus : 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) 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; - (c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant; (d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which RSA 1294/17 & 166/18 5 arises out of the amalgamation; (e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract. In the light of Section 19 of the Specific Relief Act, I do not think that it is necessary for the plaintiff to seek cancellation of the sale deed executed subsequent to the agreement in a case of this nature. It is all the more so in the light of the decision of the three judge Bench of the Apex Court In **Durga Prasad v. Deep Chand** (AIR 1954 SC 75). In the said case, it was held by the Apex Court that in a case where the property is transferred subsequent to the execution of the agreement, the proper form of decree to be sought is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. The said judgment was rendered after referring to the provision corresponding to Section 19 of the Specific Relief Act, 1963, RSA 1294/17 & 166/18 6 contained in the Specific Relief Act 1877. A Division Bench of this Court also held in **Sachidanandhan v. Vijesh** [2016 KHC 161] that a decree for specific performance can be enforced against a subsequent transferee without a separate decree cancelling the subsequent document or declaration as to its validity. 6. True, in **Vijaya Bharathi** (supra), the Apex Court has observed that the plaintiff in a suit for specific performance which was the subject matter of the case dealt with therein, should have sought a decree for cancellation of the conveyance deeds executed subsequent to the agreement also. A close reading of the said judgment indicates that the suit for specific performance in the said case was though decreed by the trial court, the High Court reversed the decree passed by the trial court and dismissed the suit holding that the suit was filed almost after a period of two years after the first defendant therein, the owner of the property repudiated the contract and therefore, it cannot be said that the plaintiff was ready and willing all throughout to discharge his obligations RSA 1294/17 & 166/18 7 under the contract. It appears, in so far as the suit was instituted after almost a period of two years, the Apex Court took the view that the plaintiff therein should have asked for cancellation of the document as well. The said judgment may not be of any avail for the defendants in this case, especially in the light of the statutory provisions contained in Section 19 of the Act and the decision of the Larger Bench of the Apex Court in **Durga Prasad** (supra). The second appeals, in the circumstances, are without merits and the same are, accordingly, dismissed. ## **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** tgs