Smt. Sarvjeet Kaur vs Rang Lal

T.H.B. Chalapathi, J.—This appeal is directed against the judgment and decree of the Additional District Judge (1), Faridabad in Civil Appeal No.70 of 1995 dated 9.12.1997.

The plaintiff-respondent filed a suit for specific performance of an agreement to sell executed by Smt.Kishni, the first defendant and Jagdish Chand defendant No.2, whereby they agreed to sell the suit property to the plaintiff for a sum of Rs. 1,80,281/- on 10.3.1983. A sum of Rs.25.000/- was paid as earnest money to Kishni under the agreement. The sale deed has to be registered by 15.10.1987. According to the plaintiff he was ready and willing to perform the contract on his part and since the defendant Nos. 1 and 2 failed to execute the sale deed in terms of the agreement, they filed a suit for specific performance.

During the pendency of the suit, the property has been transferred by the first defendant to the present appellant, who was impleaded as third defendant in the suit. In defence, the first defendant took the plea that the plaintiff was unable to arrange funds for the payment of balance amount. Therefore, he failed to perform his part of his contract and hence, the suit is liable to be dismissed. The second defendant was only a tenant in the suit property and he took the plea that there was no specific agreement between the plaintiff and the first defendant. Sarvjeet Kaur, who has been impleaded as defendant No.3, pleaded that she is a bona fide purchaser without notice of the agreement for a valuable consideration. Therefore,'' the suit is liable to be dismissed.

On the basis of the pleadings, the trial Court on a proper consideration evidence on record dismissed the suit holding that the third defendant was a bona fide purchaser and that the plaintiff was not willing and ready to perform his part of the contract. Aggrieved by the said decree and judgment of the trial Court, the plaintiff preferred the appeal. The learned Additional District Judge on appraisal of the evidence on record, decreed the suit for specific performance. Against the said decree and judgment of the lower Appellate Court, the third defendant who is the subsequent purchaser of the suit property filed this appeal.

The learned counsel for the appellant contended that the appellant is a bona fide purchaser for valuable consideration without knowledge either of the agreement of sale in favour of the plaintiff or the pendency of the suit. Therefore, he is a bona fide purchaser and that the trial Court rightly dismissed the suit.

There is no dispute of the fact that the first defendant executed an agreement of sale on 10.3.1987 and that the suit for specific performance was filed on 4.4.1998. Though a plea has been taken by the fist defendant that the plaintiff was not ready and willing to perform his part of the contract, the evidence on record clearly shows that the first defendant failed to obtain Income Tax Clearance Certificate so as to enable him to execute the sale deed. In these circumstances, it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. Rather it is otherwise. It is the failure of the first defendant to obtain the Income Tax Clearance Certificate because of which the first defendant could not execute the sale deed. I, therefore, agree with the lower Appellate Court that the plaintiff is ready and willing to perform his part of the contract. Further it is not open to the appellant to contend that the plaintiff was at fault, since he is only a subsequent purchaser during the pendency of the suit.

The only question that remains to be decided in this appeal is whether the appellant can be said to be bona fide purchaser without notice of the proceedings. Section 52 of the Transfer of Property Act is very clear in terms. According to the said, section, the property which is the subject matter of the suit cannot be transferred so as to affect the rights of any other party to the suit which he may have under the decree or order made therein. Section 52 of the Transfer of Property act does not envisage any notice of the proceedings to the purchaser. The pendency of the proceedings are clearly within the knowledge of the defendant to the suit who sold the property. It is the duty of the first defendant to inform the intending purchaser of the pendency of the proceedings in the Court and if any wrong or fraudulent representation has been made by the defendant to the purchaser it gives right or cause of action to the purchaser to claim damages against the defendant but the purchaser will always be subject to the result of the suit. Therefore, in my view, the plea that the appellant has no notice of the proceedings, cannot be accepted. It is useful to refer to the decision of this Court in Balwinderjit Kaur V. Financial Commissioner (sic) 1997 PB & HR 189 wherein it has been held that the vendees purchasing the property from the vendor during pendency of the civil suit against the vendor for specific performance of the agreement to sell would be bound by the decree against the vendor and the plea that they were bona fide purchaser without notice, would be of no consequence.

In this view of the matter, I do not find any error warranting interference with the decree and judgment of the lower Appellate Court. The appeal, therefore, fails and is accordingly dismissed. However, there will be no order as to costs.