P. Kannadasan vs Pownammal (died) and another

K.P. Sivasubramaniam, J.

This Second Appeal is directed against the judgment of the learned Subordinate Judge, Vellore, in A.S. No.18 of 1984 dated 21.12.1984 in

confirming the judgment of the learned District Munsif, Vellore, in O.S. No.2373 of 1981, dated 3.1.1984.

The plaintiff is the appellant in the above Second Appeal.

The plaintiff filed the suit on the basis of the pleadings that the suit property originally belonged to the second defendant, that the second

defendant had antecedent debts and other pressing financial commitments and therefore, he wanted to sell the suit property, that the plaintiff agreed

to purchase from the second defendant and as per the agreement price was fixed at Rs.31,500, that after receiving the consideration the defendant

had executed a registered sale deed on 15.10.1980 and put the plaintiff in possession of the suit property. Thus by virtue of the sale deed dated

15.10.1980 the plaintiff had become the owner of the suit property and the plaintiff also claimed that he was in possession and enjoyment of the

same in his own right. The plaintiff further pleaded that the second defendant had lost his title and interest in the suit property and that after

alienating the property, the second defendant settled down at Kil Murungai village, that the first defendant is the wife of the second defendant, the

first defendant for herself and on behalf of her minor children appears to have filed a suit in O.S. No. 456 of 1975 on the file of District Munsif,

Vellore, for maintenance against the second defendant payable at Rs.75 per month towards maintenance. Subsequently, the first defendant also

appears to have filed an Execution Petition in E.P.No. 175 of 1981 and brought the property for sale. The plaintiff contended that the first

defendant was not entitled to bring the property for sale as her maintenance claim was satisfied by virtue of the sale deed dated 15.10.1980 and

the second defendant had in fact received a sum of Rs.6,000 from the plaintiff for the discharge of the decree debt and the second defendant had

also made arrangements for the payment of maintenance amount by depositing the amount in Vummidiyar Bankers in Madras. The deposit receipt

was handed over to the first defendant and further the second defendant had also sent a Demand Draft for Rs.700 towards arrears of maintenance

up to 31.10.1980. Therefore, the first defendant was not entitled to bring the suit property for sale in E.P.No. 175 of 1981 for realisation of the

decree debt. The plaintiff suspects that the defendants are colluding together and are attempting to defraud the plaintiff. Hence the suit property

was not liable to be brought for sale. The plaintiff came to know about the sale of the property on 14.10.1981 and came to know about the fraud

played by the defendants. Therefore, the plaintiff was constrained to file the suit for declaration of his right and title to the suit property and for a

permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property.

The first defendant filed a written statement contending that the plaintiff had suppressed the real facts and the plaintiff being a close friend of the

second defendant had colluded with the second defendant and appears to have created a document purporting to be a sale deed solely with the

object of cheating the first defendant and her children to escape the liability of the payment of the maintenance decree amount to them. The second

defendant had deserted the first defendant and he had also married a second wife arid therefore, the first defendant and her minor children had filed

O.S. No. 456 of 1975 claiming maintenance with a charge over the properties including the suit property. The said suit was contested by the

second defendant and the suit was ultimately decreed on 17.12.1975. The first defendant further pleaded that the second defendant set up his

eldest brother Krishnadoss to file a suit in O.S. No. 121 of 1978 to claim the entire properties comprised in O.S. No. 456 of 1975 as his own in

order to make the properties not available for the maintenance claim. The said suit was also dismissed and O.S. No. 456 of 1975 was decreed

granting maintenance to the first defendant and a charge was created on the properties including the suit properties. Subsequent appeal filed by the

second defendant was also dismissed and consequently an Execution Petition was filed by the plaintiff. As the decree amount was not satisfied the

first defendant had taken steps to bring the property for sale. In the said circumstances, the second defendant set up the plaintiff to file the present

suit and had prevented the first defendant and her children from bringing the property for sale. It is also contended that the sale deed alleged to

have been executed on 15.10.1980 was devoid of consideration and was not a true and valid document. The alleged sale by the second defendant

even if it was real or true, it was not valid and binding on the first defendant and the plaintiff was not a bonafide purchaser for value.

The second defendant chose to remain ex parte. Learned trial Judge after considering the evidence both oral and documentary, found that the

plaintiff was not a bonafide purchaser for value without notice of the charge in favour of the first defendant and that the plaintiff''s sale deed dated

15.10.1980 was not true and valid and that the plaintiff was not entitled to the relief of declaration and injunction. On appeal also the learned

appellate Judge came to the conclusion that the plaintiff was not a bonafide purchaser for value without notice of the charge in favour of the first

defendant, and that from the oral and documentary evidence adduced by the plaintiff, it was doubtful whether Ex. A.l sale deed was fully

supported by consideration. On the basis of the said findings the appeal filed by the plaintiff was rejected and hence the above Second Appeal.

In this Second Appeal, the learned counsel for the appellant submits that the very fact that the charge was mentioned in the document itself

would show that the property was purchased no doubt, with the knowledge of the charge over the property; but the payment of consideration was

inclusive of maintenance amount payable by the first defendant and in fact the amount towards maintenance was also paid by the plaintiff and as

such the transaction was bonafide. It is not the case of the plaintiff that he was not aware of the charge over the property for payment of

maintenance due to the first defendant. Therefore, according to learned counsel for the appellant, the transaction under Ex. A.1 was bona fide and

as the charge over the property in favour of the first defendant was duly discharged, the first defendant cannot have any grievance. It was further

pleaded that even otherwise the plaintiff was prepared to undertake that he will discharge the liability of maintenance payable to the first defendant.

Learned counsel for the appellant also relies on a judgment of this Court reported in, Melur Co-op Marketing Society v. Salia Maniam, 85 LW

That was a case where a suit for declaration of title in respect of the suit properties was filed whereunder the plaintiff did not pay the balance

of sale consideration as dispute was raised with regard to the title by a third party and that he was prepared to deposit the balance of the sale

consideration and that it was also alleged that he was put in possession of the properties. The suit was mainly resisted on the ground that title did

not pass in favour of the plaintiff as the intention was that payment of the entire consideration was a condition precedent for conferment of title on

the plaintiff and that as the plaintiff failed to pay the amount inspite of demand by the first defendant, the first defendant was competent to execute

the sale in favour of the fourth defendant. In the said circumstances, it was held that the intention of the parties was that title should pass to the

plaintiff though it was one of the terms of the contract that the balance of consideration should be paid by the plaintiff to the vendor at the time of

the registration of sale deed. But such payment was not a condition precedent for the passing of title as would be seen from a reading of all the

recitals. It was therefore, held that the purchaser was entitled to sue for possession, although he had not paid the price. Reliance for such a

conclusion was made on the basis of the expression as found u/s 54 of the Transfer of Property Act.

But the facts pertaining to the present Second Appeal are totally different. The transaction had taken place during the pendency of a suit

between the first defendant and the second defendant. The fact that there was a clause in the sale deed to the effect that the second defendant had

received a sum of Rs.6,000 from the plaintiff for the discharge of the decree debt and that the second defendant who had a charge over the

property. The transfer is pendente life which is definitely hit by Section 52 of the Transfer of Property Act. The issue is squarely covered by a

decision of a Division Bench of this Court in, Arunachalam Iyer v. Lingia and Brothers, 65 LW 729. Dealing with similar facts as in the present

case, the Division Bench held that on a reading of Section 100 of the Transfer of Property Act in conjunction with Section 52 of the Transfer of

Property Act, it was imperative that a purchaser of the properties subject to a charge created by a compromise decree, the satisfaction or

discharge of which has not been obtained or had not become barred by limitation, will not get any assistance from the proviso to Section 100 of

the Transfer of Property Act even though he might be a purchaser for value without notice of the charge. The Division Bench also held that as long

as the decree was not satisfied and kept alive the purchase would be hit by the rule of Us pendens irrespective of whether the purchase was a

bona fide transaction or not. In coming to the said conclusion the Division Bench also relied on a decision of an earlier Division Bench of this Court

in Rajagopala v. Kesava, 58 LW 14 whereunder it was held that Section 100 of the Transfer of Property Act cannot override the provisions of

Section 52 of the Transfer of Property Act.

Therefore, as long as the right of the first defendant with a charge over the suit property was subsisting by virtue of a decree, it was not open to

the second defendant to part with the title of the property. As pointed out by the Division Bench, the issue does not depend upon whether the

purchaser was a bona fide purchaser or not. In this case, the purchaser/plaintiff had in fact purchased the property with full knowledge of existence

of the charge over the property. That circumstance alone, namely, that sale consideration was inclusive of the maintenance charge in favour of the

first defendant, cannot validate the transaction which is otherwise hit by Section 52 of the Transfer of Property Act. As contended by the first

defendant, her rights were not satisfied and therefore, the irresistible conclusion would be that the charge over the property continued

notwithstanding the agreement between the plaintiff and the second defendant, that the second defendant will make use of the sale consideration for

discharging the maintenance claim of the first defendant.

Both the Courts have concurrently found that the transaction was not bona fide and there is no material to set aside the said concurrent findings

of both the Courts. The mere fact that the debt and the charge was disclosed in the sale deed and that the purchaser was fully aware of the liability

under the charge and that he had paid full consideration of the property inclusive of the charge, cannot absolve the basic infirmity in the transaction.

The said defect cannot be cured by the plaintiff merely offering that he was prepared to discharge the maintenance liability.

Therefore, there are no merits in the above Second Appeal and the same is liable to be dismissed.

In the result, the Second Appeal is dismissed. No costs.