IMPORTANT POINT
Agreement to Sell – If there is some doubt as to interpretation of evidence given by subsequent purchaser during cross-examination which was not clarified by way of re-examination, benefit of doubt should go to person seeking specific performance.

JUDGMENT

“Were you not once prosecuted and punished?”-to this blunt question during cross-examination, the witness tried to give an explanation. He was cut short with a firm “Say, yes or no”. The poor witness meekly replied “yes sir”. The cross examining counsel after a few more questions sat down with a victorious smirk. The other side counsel was alert and with the leave of the court to re-examine his witness, put a question “can you tell the Hon’ble Court as to why you were prosecuted and what was the punishment you received?”. The witness explained with a sense of relief “I was charged for a traffic violation and paid a small amount as fine”.

2. This story highlights the importance of re-examination. If the counsel had failed to elicit this explanation, the judge would have carried an impression that the witness is an ex-convict. Failure to reexamine a witness can sometimes turn out to be fatal. The case on hand is a good illustration.

3. This second appeal arises out of a suit for specific performance of the sale agreement dated 25.02.2006 entered into between the plaintiff (K.Rajendran) and the first defendant (G. Amsavalli). The appellant purchased the suit property from the first defendant on 28.05.2006 under Ex.B2. While the trial court dismissed the suit, the first appellate court granted the relief of specific performance.

4. The substantial questions of law formulated for consideration were whether the case of the appellant will fall under the exception set out in Section 19 (b) of the Specific Relief Act, 1963 and whether the impugned decree goes beyond the suit agreement.

5. The plaintiff filed O.S No.89 of 2006 on the file of the Principal District Munsif Court, Valangiman, Kumbakonam for specific performance of the sale agreement which he entered into with the 1st defendant on 25.02.2006. The appellant herein was impleaded as the fourth defendant. The 1st defendant remained ex parte after filing written statement. The appellant alone contested the proceedings. Based on the divergent pleadings, the trial court framed the necessary issues. The plaintiff examined himself as P.W.1. Ex.A1 to Ex.A4 were marked. The appellant examined herself as D.W.1. Ex.B1 to Ex.B4 were marked. After consideration of the evidence on record, the trial court by judgment and decree dated 23.01.2008 denied specific performance but ordered refund of the advance amount. Questioning the same, the plaintiff filed A.S.No.79 of 2008 before the Additional Sub-Court, Kumbakonam. By the impugned judgment and decree dated 11.09.2009, the first appellate court granted the relief of specific performance. Challenging the same, the subsequent purchaser/4th defendant filed this second appeal.

6. Heard the learned counsel on either side.

7. There is no dispute that the suit property originally belonged to the 1st defendant. That the plaintiff entered into Ex.A1-Sale Agreement, dated 25.02.2006 with the 1st defendant is also beyond any pale of controversy. The 1st defendant had agreed to sell the property covered under Ex.A1 in favour of the plaintiff for a sum of Rs.73,500/- The 1st defendant also received a sum of Rs.10,000/- as advance amount. The period for concluding the sale was fixed as three months. Since the 1st defendant did not come forward for concluding the sale transaction, the plaintiff issued notice dated 15.05.2006 (Ex.A2). The 1st defendant issued reply dated 25.05.2006 (Ex.A4) claiming that the plaintiff had taken her signatures in blank stamp papers and that he had fabricated a sale agreement. Since the 1st defendant repudiated her liability under the agreement, the plaintiff filed O.S.No.89 of 2006 before the trial court on 08.06.2006. In the meanwhile, the appellant herein had purchased the suit property from the 1st defendant on 28.05.2006 (Ex.B2).

8. The primary contention of the learned counsel appearing for the appellant is that the appellant is a transferee for value who had paid her money in good faith and without notice of t