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2002 Supreme(Ker) 217
Judges : S.SANKARASUBBAN,R.BHASKARAN
Rajan - Appellant
Versus
Yunuskutty - Respondent
Case No : AS. No. 346 of 1990
Decided On : 04/02/2002
Advocates Appeared :
For the Petitioner: TRG. Warrier (Sr.), P.V. Rama Wariar, Bhavadasan, Advocates. For the Respondent: R1 S.V. Balakrishna Iyer, A.M. Pratap Singh, R2 Thottathil B. Radhakrishnan, Advocates.
Headnote:
Specific Relief Act 1963 – Sections 20, 48 – Sale Agreement – Specific Performance of Agreement – Held, S. 48 of the Registration Act states that all non-testamentary documents duly registered under the Act and relating to any property whether movable or immovable; shall take effect against the oral agreement or declaration relating to such property unless where the agreement or declaration has been accompanied or followed by delivery of possession – When the agreement to sell is oral the plaintiff has to satisfy the conscience of the court by adducing necessary and proper evidence with regard to the truth of the oral agreement and also all the terms and conditions of the agreement – Court is not satisfied that the oral agreement set up by the plaintiff is proved in the case and the reasoning of the trial court in so far as it has omitted to take note of the inconsistencies in the evidence on the side of the plaintiff and improbability of such an oral agreement cannot be sustained – In this case since the assignment is already registered even if oral agreement set up is true it cannot be enforced except on the ground of lis pendens – Where the subsequent transferee had obtained his transfer with notice of the prior oral agreement and in fraud of the right created in favour of a third party under the oral agreement S. 48 of the Registration Act has no application – Burden to prove the same is in the subsequent transferees.
R. Bhaskaran, J.
These appeals are directed against the judgment and decree in a suit for specific performance of an agreement for sale. Defendants 1 to 3 in O.S. 87/84 have filed A.S. 535/1990 and defendants 4 to 6 have filed A.S. No. 346/1990. The trial court decreed the suit for specific performance with mesne profits and subject to the right of the mother of defendants 1 to 3 for payment of amounts due to her life interest.
2. The plaint allegations are as follows :
The plaint schedule property belongs to defendants 1 to 3. The plaintiff and first defendant had negotiated for sale of the same and for that purpose the plaintiff along with Ramachandran Pillai and Razak Kunju Musaliar went to the residence of defendants at Kalamassery on 9-11-1984. The first defendant represented that he is the power of attorney holder of defendants 2 and 3 and was entitled to negotiate and execute sale deed for and on their behalf. Draft copy of power of attorney was shown to the plaintiff. The first defendant in the presence of defendants 2 and 3 agreed to sell the plaint schedule property at a sale price of Rs. 1,100/- per cent and received Rs. 5000/- as advance and agreed to sell the property on or before 20-12-1984 after receipt of balance sale consideration. An attested copy of the partition deed and draft copy of the Mukthyar were given to the plaintiff. The first defendant wrote on a sheet of paper his address and noted the amount of consideration received by him on that date. The piece of paper was given to the plaintiff along with the other two documents. When the plaintiff went to the house of first defendant with the balance consideration on 11-12-1984 defendants 1 and 2 demand higher amount of sale consideration and were not prepared to accept the sale consideration and execute the document. Hence the suit for specific performance with a claim for mesne profits at the rate of Rs.700/- per month. It is also stated that the plaintiff was always ready and willing to perform his part of the agreement.
3. The first defendant filed a written statement with the following averments. All the averments in the plaint are denied. The plaint schedule property belonged to Varadan Pillai, father of defendants 1 and 3 and on his death it devolved on his mother Lekshmikutty Amma and the defendants. The property was in the possession of the second defendant under an otti assignment. The case of negotiation for sale and that the plaintiff went to the house of defendants 1 to 3 on 9-11-1984 with Ramachandran Pillai and Abdul Razak Kunju are false. The allegation that he agreed to sell the plaint schedule property to the plaintiff for Rs.1,100/- per cent and that he received Rs.5,000/- as advance and gave it to the second defendant are also false. The first defendant did not give any attested copy of then partition deed Or draft copy of the Mukthiar as alleged in the plaint. The allegation that he wrote on a sheet of paper his address and the amount received is also false. The further allegation that the plaintiff went to the house of first defendant on 11-12-1984 with the balance sale consideration is also false. It is also contended that the plaintiff is not entitled to get the document executed and the mesne profits claimed too law and he is not entitled any mesne profits. The defendants had already executed an agreement on 22-8-1984 to one P.N. Yohannan to sell the property at the rate of Rs. 2,900/- per cent to him or his nominee and received Rs. 5,001/- as advance. It is also contended that the plaintiff, during the end of October or beginning of November 1984 had approached the first defendant with an offer purchase the property. He was told that an agreement was already executed for sale of the property. A few days later the plaintiff again came to the industrial unit of the first defendant at Kalamassery and said that he was prepared to purchase the property at the rate of Rs. 3,500/- per cent but showing only Rs. 1,100/- in the dee
