The legal framework for specific performance and the obligations of subsequent purchasers.

1. Second defendant is the appellant. The first respondent/plaintiff filed the suit in O.S.No.67 of 1986 on the file of the Sub Court, Nagercoil, for a direction to the first defendant to execute a sale deed in favour of the plaintiff after directing the plaintiff to pay the balance sale consideration of Rs.9,400 and directing the defendant to hand over possession of plaint property to the plaintiff. The trial court granted a decree directing the first defendant to execute a sale deed. On appeal filed by the appellant/first defendant, the District Judge, Kanyakumari District at Nagercoil granted a decree against defendants 1 and 2 to execute a sale deed and hand over possession of the suit property, against which, this second appeal is preferred.

2. Thenecessary facts for the purpose of this Second Appeal are as follows :-

The first defendant is the owner of the suit property. On 14.5.1983, the first defendant entered into an agreement with the plaintiff for the sale of the suit property for a consideration of Rs.29,400, agreeing to execute a sale deed after getting possession in O.S.No.77 of 1978 or within four months whichever is later. He received a sum of Rs.3,500 on that date. The time was further extended on 1.9.1983, 1.11.1983, 1.3.1984 and 12.5.1984 in the meantime, a further sums of Rs.3,000, Rs.3,500 and Rs.10,000 were received by the first defendant under the said agreement. In total, the first defendant has received a sum of Rs.20,000 from the plaintiff. The first defendant got possession of the suit property as per the decree in O.S.No.77 of 1978 on 28.4.1984. In the meanwhile, one Jeevarathinam filed a suit in O.S.No.831 of 1984 before the court of the Principal District Munsif, Nagercoil alleging a lease and claiming to be in enjoyment of the property as lessee and seeking an injunction against the plaintiff and the first defendant from entering into the suit property. The plaintiff had been making repeated requests to the first defendant to execute the sale deed after receiving the balance consideration and he was ready and willing to perform his part of the contract. The plaintiff would further state that he understood that the first defendant had executed a sale deed in respect of the plaint property in favour of the second defendant collusively and fraudulently and hence, he filed the suit for a direction to the first defendant to execute the sale deed and hand over possession of the plaint schedule property. The trial court granted a decree for a direction and the appellate court modified the decree directing both the defendants to execute the sale deed and to hand over possession of the suit property. This second appeal is now filed by the second defendant, namely, the subsequent purchaser.

3. Mr. T.R. Rajagopalan, Senior Counsel appearing on behalf of the appellant/second defendant submits that the suit is a collusive suit between the plaintiff and the appellant’s vendor and no relief had been sought against the appellant/second defendant from the lower appellate court to modify the decree granted by the Trial Court and therefore the decree ought not been passed in the facts and circumstances of the case. In any event, according to him, the appellant/second defendant is the bona fide purchaser for the value without notice of the agreement. According to him, the court cannot, without a relief for setting aside the sale, hold the sale to the appellant invalid. According to him, the learned District Judge erred in granting a decree for specific performance as against the second defendant without a prayer in the plaint. The sale deed cannot be invalid simply because a security in reference to the property situate in Kerala was shown in the sale deed. In any event no reliance can be pla ced on Ex.A.6, Tahsildhar’s Certificate.

4. Mr. R. Alagar, Senior Counsel, appearing on behalf of the first respondent/plaintiff submits that the sale under Ex.B.1 Sale Deed is a void sale and is a fraud on the law