Xavier Joseph v. Thankachan and Eswaran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.RAMKUMAR & THE HONOURABLE MR.JUSTICE K.HARILAL MONDAY, THE 23RD DAY OF JANUARY 2012/3RD MAGHA 1933 RFA.No. 737 of 2011 ( ) ----------------------OS.257/2009 of PRL.SUB COURT,KOTTAYAM APPELLANT(S)/APPELLANT/2ND DEFENDANT: ------------------------------------ XAVIER JOSEPH, AGED 60 YEARS, S/O. JOSEPH, NEDUNILATHIL HOSUE, KANJIRATHANAM.P.O. OMALLUR KARA, KOTHANELLOOR, VILLAGE VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.SAJU J.VALLYARA RESPONDENT(S)/PLAINTIFF & 1ST DEFENDANT: ---------------------------------------- 1. THANKACHAN, AGED 40 YEARS, S/O. DAMODARAN, THEKKUMKALAYIL HOUSE PERUMTHURUTHU KARA, KALLARA VILLAGE, VAIKOM TALUK KOTTAYAM DISTRICT. 2. ESWARAN, AGED 62 YEARS, S/O. NARAYANAN, OMALLUR PAZHAYAMADATHIL HOUSE KOTHANELLOOR VILLAGE,VAIKOM TALUK, KOTTAYAM DISTRICT. R1 BY SRI.K.N.CHANDRABABU THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 19-01-2012, THE COURT ON 23-01-2012 DELIVERED THE FOLLOWING: ## Draft for approval ## V. RAMKUMAR & K. HARILAL, J J. ........................................................ R.F.A. NO. 737 OF 2011 ......................................................... Dated: ## JUDGMENT The second defendant in O.S. No. 257 of 2009 on the file of the Principal Sub Court, Kottayam, is the appellant in this appeal. The said suit was one for specific performance of Ext.A1 agreement for sale dated 14-11-2008 entered into between the first defendant and the plaintiff and for a declaration that Ext.A7 sale deed dated 29-01-2009 executed by the first defendant in favour of the second defendant (appellant herein ) is null and void. 2. Eventhough the suit was resisted by both defendants 1 and 2, the Court below granted a decree to the plaintiff as prayed for. Hence, this appeal. 3. We heard the learned counsel for the appellant as well as the learned counsel appearing for the first respondent/plaintiff. R.F.A. NO. 737 OF 2011 -:2:- 4. The proved facts are the following:- On 14-11-2008, D1 agreed to sell the plaint schedule property (14.45 Ares) of land to the plaintiff for a consideration at the rate of Rs. 15,750/-per cent. Rs. 25,000/- was paid as advance. As per the agreement the plaintiff was to pay a sum of Rs. 1,00,000/- to D1 on or before 20-12-2008. 14-02-2009 was the last date for execution of the sale deed. According to the plaintiff, eventhough he tendered the aforesaid amount to D1 the latter refused to accept the same. On 2002-2008 the plaintiff deposited Rs. 1,01,000/- in the Kaduthuruthy Service Co-operative Bank as evidenced by Ext.A2 pass book. On 18-4-2009 he deposited another sum of Rs. 25,000/- in the said bank. Yet another amount of Rs. 1,50,000/- was deposited on 242-2009. Again on 12-08-2009 the plaintiff deposited Rs. 3 lakhs. Another sum of Rs. 88,000/- was deposited on 2-1-2010. All those entries in Ext.A2 pass book were not disputed by D1 whose contention that the plaintiff was not ready to pay Rs. 1,00,000/- on 20-122008 as agreed, was false. On getting reliable information to the effect that D1 was intending to transfer the property to somebody else, the plaintiff filed O.S. No. 8 of 2009 before the Minsiff's Court R.F.A. NO. 737 OF 2011 -:3:- Ettumanoor on 22-12-2008 for a perpetual injunction restraining D1 from selling the plaint schedule property to any person other than the plaintiff. On 22-12-2008 an interim injunction in terms of the above prayer was granted by the learned Munsiff as per the order passed on I.A. 1949 of 2008. The said order was served on D1 on 24-12-2008. D1 entered appearance in O.S. 8/2009 on 15-1-2009. On 24-1-2009 D1 filed his counter to I.A. 1949/2008. On 29-01-2009 D1 sold the property to D2 (the appellant herein) as per Ext.A7 registered sale deed in flagrant violation of the order of injunction. Thinking that D1 was about to sell the property to the appellant the plaintiff sent Ext.A3 lawyer notice dated 10-2-2009 to D1. But later he discovered that the property was already sold. The plaintiff thereupon filed I.A. 270/2009 in O.S. 8 of 2009 before the Munsiff's Court under Order XXXIX Rule 2 A C.P.C. to prosecute D1 for violating the interim injunction and alienating the plaint schedule property to the appellant herein. As per order dated 17-08-2009 the learned Munsiff found D1 guilty of violating the interim injunction and sentenced D1 to imprisonment. It was thereafter that the plaintiff filed the present suit. R.F.A. NO. 737 OF 2011 -:4:- 5. The court below rightly rejected the defence of D1 that it was to meet the urgent need of his daughter's marriage that he was constrained to sell the property and it was with the knowledge and consent of the plaintiff that the property was alienated. 5. The learned counsel for the appellant contended that the appellant was a bona fide transferee for valid consideration and without notice about the pendency of the suit and, therefore, he should have been protected by the court below by virtue of Section 19 (b) of the Specific Relief Act, 1963. 6. We are afraid that we find ourselves unable to agree with the above submissions. This is a case in which the first defendant was transferring the property to the appellant not only during the pendency of O.S. 8 of 2009 and the transfer was, therefore, hit by lis pendens, the transfer was made in blatant violation of of the interim injunction. In such a case, the Court has the inherent power to nullify the transfer and put the parties back to the previous position under its inherent power even without any application or suit by the aggrieved person. (See ......................). R.F.A. NO. 737 OF 2011 -:5:- The plaintiff was entitled to seek specific performance of Ext.A1 contract as against the first defendant even without the 2[nd] defendant on the party array. The only question germane for consideration in a suit for specific performance is whether the agreement for sale is genuine. The subsequent purchaser need not be a party for deciding the said question. (Ramesh Chandra Pattanaik v. Pushpendra Kumari and Others -(2008) 10 SCC 708). It is well settled that Section 52 of the Transfer of Property Act, 1882 which recognises the doctrine of lis pendens overrides Section 19 (b) of the Specific Relief Act which affords protection to a bona fide transferee . (See Padmaja v. Erattil Sajeev - 2006 (1) KLT 265) and Guruswami Nadar v. Lakshmi Ammal - (2008) 5 SCC 796) . That apart, there are circumstances to indicate that the appellant is not a bona fide purchaser . He cannot be heard to say that he was not aware of the pendency of the earlier suit O.S. No. 8 of 2009 or the order of injunction passed therein against his assignor. After bestowing our anxious consideration to the facts and R.F.A. NO. 737 OF 2011 -:6:- circumstances of the case, we see no reason to to interfere with the judgment and decree passed by the court below. This appeal is, accordingly, dismissed. V. RAMKUMAR, JUDGE. ani/ K. HARILAL, JUDGE. R.F.A. NO. 737 OF 2011 -:7:-