A statutory charge under Section 55(6)(b) of the Transfer of Property Act is enforceable against a bona fide purchaser for value, despite their claim to protection under the Specific Relief Act.

JUDGMENT :

C. PRATHEEP KUMAR, J.

The 2^nd defendant in OS No. 245 or 2004 on the file of the Principal Sub Court Kottayam, is the appellant. (For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court.)

2. The plaintiff filed the suit for specific performance of an agreement for sale entered into with the 1^st defendant agreeing to sell the plaint schedule property for a total consideration Rs. 8,00,000/-. On the date of agreement for sale on 31.07.2003(Ext.A1), a sum of Rs. 5,05,000/- was paid to the 1^st defendant as part of the sale consideration. As per the terms of the agreement, the sale deed was to be executed on or before 24.03.2004, after paying the balance sale consideration. According to the plaintiff, he was always ready and willing to perform his part of the sale agreement, but it could not be performed due to the default of the 1^st defendant. Finally, on 24.03.2004, after informing the 1^st defendant, the plaintiff reached the Sub Registrar's office with the balance sale consideration, expecting the 1^st defendant to get the sale deed executed. However, the 1^st defendant did not turn up. On enquiry, the plaintiff came to know that the 1^st defendant had executed sale deed No.3142/2003 in respect of the scheduled property in favour of the 2^nd defendant for a consideration of Rs. 1,00,000/-. The 2^nd defendant is a close friend of the 1^st defendant and her family. The 2^nd defendant was fully aware of the agreement executed by the 1^st defendant in favour of the plaintiff. Therefore, it is contended that, the sale deed No. 3142/2003 (Ext.A2) is a fraudulent document created in collusion between defendants 1 and 2 to defeat the rights of the plaintiff and as such, it does not bind the plaintiff and the plaint schedule property. It was in the above context that the plaintiff preferred this suit for a decree for specific performance.

3. The 1^st defendant remained ex parte. The 2^nd defendant filed a written statement denying the averments in the plaint and denying the execution of any such sale agreement between the plaintiff and the 1^st defendant. It is also denied that the 1^st defendant received a sum of Rs. 5,05,000/- being part of the sale consideration from the plaintiff. Further, according to the 2^nd defendant, the scheduled property was already mortgaged to Kottayam District Cooperative Bank, Kottayam for a sum of Rs.3,00,000/-. Further, the said property was under court attachments, in O.S. No. 273 of 2003 of the Munsiff’s Court, Alapuzha and O.S. No. 458 of 2003 of the Sub Court, Kottayam. The 2^nd defendant purchased the property subject to the above encumbrances. After purchasing the said property, the 2^nd defendant is in possession and enjoyment of the said property. It was further contended that the 2^nd defendant is a bona fide purchaser for valid consideration. He also denied the allegation in the plaint that he is a friend of the 1^st defendant. Therefore, the 2^nd defendant prayed for dismissing the suit.

4. The trial Court has framed five issues. The evidence in the case consists of the oral testimonies of PWs 1 and 2, DWs 1 and 2, Exhibits A1 to A6, B1 to B10 and X1 to X6. After evaluating the evidence on record, the trial Court decreed the suit in part. Though the prayer for specific performance was declined, the 1^st defendant was directed to repay the advance amount Rs.5,05,000/- to the plaintiff and for the said sum, a charge was created in the plaint schedule property. Being aggrieved by the above judgment and decree of the trial Court, to the extent it created charge on the plaint schedule property for the decretal amount, the 2^nd defendant preferred this appeal.

5. Now the points that arise for consideration are the following:

1) Whether a charge under Section 55 (6)(b) of the Transfer of Property Act will lie even against a bona fide purchaser for consideration?

2) Whether the 2^nd defendant is entitled to get the protection under Section 19 (b) of the SPECIFIC R