The main legal point established in the judgment is the burden of proof on subsequent purchasers, the evidentiary value of untested evidence, and the significance of time in the contract.

1. When the rights of subsequent purchaser will prevail over the rights of the prospective purchaser, i.e., the person, who holds a prior “agreement to sell” or

On whom the burden of proof lies, i.e., with regard to payment of full consideration and payment of the same in good faith and without notice, i.e., -

(a) the subsequent purchaser has paid the full value for which he has purchased the property;

(b) that he paid the full value in good faith and without notice of the prior contract, i.e., the agreement of sale – whether it is on the agreement holder or on the subsequent purchaser/defendant? and

1.1. Where the witness could not be cross-examined on account of his death, what is the evidentiary value of the evidence given by him? whether the evidence can be rejected, as inadmissible, as it is not tested by cross-examination or the evidence is admissible, but the weight to be attached to such evidence should depend on the facts and circumstances of each case.

1.2. Whether the plaintiff can apply for issuance of subpoena under Order XVI Rule 14 for examination of defendants who are contesting parties on the allegations made in the plaint?

1.3. These are the issues cropping up in this appeal, which are to be answered by this Court.

2. Defendants 10 and 11 are the appellants. The plaintiff-Kanniyappa Naidu filed a suit in O.S.No.23 of 1987, seeking the relief of specific performance in respect of A and B Schedule properties. The plaintiff claimed such a relief based upon Ex.A-1-sale agreement. The trial court dismissed the suit, holding that, (a) the sale agreement under Ex.A-1 is not proved; and (b) the appellants, i.e., defendants 10 and 11 are the bona fide purchasers for value, without notice of Ex.A-1-sale agreement.

2.1. The plaintiff preferred an appeal in A.S.No.61 of 1992 and the first appellate court allowed the appeal and thus, the judgment and decree of the trial court came to be set-aside and the suit got decreed. One month time was granted to pay the balance of sale consideration before the trial court. Therefore, the purchasers have filed the second appeal.

2.2. The second appeal has been admitted on the following substantial question of law:

“When the trial court has exercised its power under Section 73 of the Indian Evidence Act, in comparing the signatures of Boomi Naidu in Ex.D-2 and Ex.A-1, the non-appreciation of the said position by the lower appellate court has materially affected the judgment or not?”

3. Brief facts:

The suit A and B Schedule properties belonged to Boominaidu and Chockammal. Four persons, by name, Kuppuswamy, Kishtappa, Raju and Perumal were brothers. Boominaidu is the son of Kuppuswamy, chockammal is the wife of Kishtappa and plaintiff is the son of Perumal. Boominaidu died on 06.03.1986. His legal representatives are defendants 1 to 8. After the death of Chockammal, during the pendency of the appeal, her legal representatives have been brought on record as respondents 12 and 13. R-10 and R-11/purchasers are the appellants in the second appeal.

3.1. ‘A’ schedule property belonged to Boominaidu and ‘B’ Schedule property belonged to Chockammal. The case of the plaintiff is that they executed a sale agreement (Ex.A-1) in favour of him on 15.02.1985. The case of defendants 10 and 11 is that the properties have been sold to them under the sale deeds, dated 13.09.1985 and 04.11.1985. It was an admitted fact that defendants 10 and 11, were in possession and enjoyment of the property, in pursuance of the said sale deeds. The sale agreement, dated 15.02.1985 is claimed to be ante-dated and forged.

3.2. The trial court framed the following issues:

(i) Whether the sale agreement, dated 15.02.1985 is true, valid and whether it will bind the defendants?

(ii) Whether the defendants have title and possession based upon sale deeds, dated 30.11.1985 and 04.11.1985?

(iii) Whether the plaintiffs are entitled to the relief of specific performance?

(iv) Whether defendants are the bona fide purchasers without notice