Sri Suresh Bhatia Vs Smt K Manjula

7(b). SMT.SNEHA PUNIT KHICHA, D/O LATE VINOD KUMAR, AGED ABOUT 40 YEARS, C/O PUNIT LALIT KHICHA, R/AT: NEW HERITAGE CO-OP HSG SOC. LTD, B WING FLAT NO.86, 8^TH FLOOR, OFF DADABHAI ROAD, NEAR AMBRE GARDEN, MAHARASHTRA-400 058.

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RFA No. 38 of 2012

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7(c). SRI.VIBISH PAREKH, S/O LATE VINOD KUMAR, R/AT NO.20, MANPHO HOUSE, 3^RD CROSS, GANDHI NAGAR, BANGALORE-560 009.

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(CAUSE TITLE AMENDED AS PER COURT ORDER DATED 02.07.2024)

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SMT.SUDHA BAI, W/O RAJENDRA KUMAR, AGED ABOUT 52 YEARS, NO.4, 4TH CROSS, GANDHI NAGAR, BANGALOE-560 009.

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…RESPONDENTS

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[BY SRI.B.K.CHANDRASHEKAR, ADVOCATE FOR R1 TO R4; SRI.P.H.RAMALINGAM, ADVOCATE FOR R5, R6 AND R8; SRI.M.N.RAHGU, AVOCATE R7 (A TO C)]

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THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.11.2011 PASSED IN O.S.17571/2005 ON THE FILE OF THE XXVIII-ADDL. CITY CIVIL JUDGE, MAYO HALL, BANGALORE, DISMISSING THE SUIT FOR THE SPECIFIC PERFORMANCE.

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THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12.11.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, JAYANT BANERJI J. , DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI AND HON'BLE MR. JUSTICE K. V. ARAVIND

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RFA No. 38 of 2012

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE JAYANT BANERJI)

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This appeal has been filed seeking to set aside the judgment and decree dated 21.11.2011 passed in O.S.No.17571/2005 on the file of the XXVIII Additional City Civil Judge, Mayo Hall, Bengaluru. By means of the impugned decree, the suit of the plaintiff/appellant seeking specific performance of agreement dated 23.07.2004, stated to be executed by the defendants has been dismissed.

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The plaint case is that the defendants are the absolute owners of land bearing Sy.No.78/3, of Nagavara village, Kasaba Hobli, Bangalore North Taluk, measuring 32 guntas and kharab land of 6 guntas, which is the subject matter of the suit.

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The defendants became the absolute owners of the properties mentioned in the schedule pursuant to certain family arrangements/partition entered into

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between the family members.

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RFA No. 38 of 2012

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The defendants entered into an agreement with

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the plaintiff/appellant to sell the land on 23.07.2004 and an ‘Aide Memorie’ was executed. It was stated that the plaintiff has been ready and willing to pay the duty and penalty on the documents as it was insufficiently stamped. It was further stated that all the legal representatives of the sellers were required to execute a sale deed in favour of the plaintiff as per the agreed rate. A sum of Rs.6.00 lakhs and Rs.5.00 lakhs was paid by cheques in favour of the defendant Nos. 2 and 1 respectively and both cheques had been encashed. In view of the permission granted by the defendants by means of the letter dated 27.07.2004, paper publication was made on 30.07.2004 and 31.07.2004 intimating the purchase and calling for objections. The objections were lodged by the Cooperative Housing Society and the Managing Director of the Central Bank, Bengaluru Rural District. In which, the particulars of ownership was sought and it was mentioned that the land was notified for acquisition and that mutation entries had been stayed by the Assistant Commissioner. In this regard there were a number of Writ Petitions filed. One of the

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Writ Petition was allowed and a direction was issued to consider the objections made. It is stated that ultimately the land acquisition proceedings were withdrawn by the Government of Karnataka during the year 2001. It was stated that the claim of the cooperative housing society is therefore without any merit. By an order dated 09.07.2004 the land was converted for non-agricultural purpose. Therefore, it is clear that defendants No.1 to 4 are the absolute owners of the property. Since the defendants were postponing receipt of balance consideration of the money payable and to get the sale deed registered, the plaintiff caused a notice to be issued to the defendants No.1 to 4 which was not received by them and returned. It is stated that defendants No.2 to 4 then sold the property measuring 9 guntas out of Sy.No.78/3 in favour of defendants No.5 to 8 under a deed of sale dated 04.11.2004. It is the plaintiff’s case that the defendants No.5 to 8 are not bonafide purchasers and knew fully well that defendants has an agreement to sell the same. It was stated that time is not the essence of the contract. Accordingly, a decree for specific performance

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RFA No. 38 of 2012

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was sought directing the defendants to execute a deed of sale in favour of the plaintiff or his nominee in respect of the suit schedule property after receiving the balance consideration from the plaintiff; to put the plaintiff in possession of the property; for a permanent injunction restraining the defendants etc., from changing the nature of the property or altering the nature of the same; for permanent injunction restraining the defendants etc., from digging pits, laying trenches, erecting structures etc., were also prayed for. The schedule of the plaint reflected the area, survey number, its conversion for residential use and the boundaries of the properties.

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A written statement was filed by defendants No.1 to 4. It was denied by the said defendants that they had entered into any agreement to sell the land with the plaintiffs on 23.07.2004. It was denied that an Aide Memorie has been executed and the plaintiff was ready and willing to pay the duty and penalty of the documents and that out of the total extent of land 19 guntas was agreed to be registered after clearance and paper

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RFA No. 38 of 2012

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publication was to be issued within 20 days and after payment of the balance, sale deed had to be registered within two months. Any obligation in this regard by the legal representatives of the defendants was also denied. It was denied that the plaintiff was ready and willing to perform his obligation by paying balance of the consideration. As far as permission for paper publication is concerned, it is stated that it is not within the knowledge of the defendants filing the written statement. It was stated that the alleged agreement relied upon by the plaintiff is not an agreement to sell. A plain reading of the document relied upon by the plaintiff was stated not to disclose that it is an agreement to sell. It was further stated that in the absence of clear specific description of the suit documents by the plaintiff, the suit is liable to be rejected.

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The defendants No. 5 and 6 also filed their

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written statement. The defendants No.5 and 6 are the subsequent purchasers of the suit schedule property. The allegations made by the plaintiff in the petition were

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denied. It was however admitted that defendants No.1 to 4 were the absolute owners of the suit property. They stated that they are the bonafide purchasers of the suit property. It appears that no written statement was filed by defendants No.7 and 8. But they filed a memo on 01.04.2006 stating that they adopt the objections of defendants No.5 and 6, which may be taken as their objections too.

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7. On 03.08.2010 the trial Court framed the

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following issues:

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ISSUES

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1. Whether the plaintiff proves that defendant is being absolute owners of the suit property agreed to sell the AIDE MEMORIE for Rs.53/- per Sq., Ft., received Rs.1,10,000/- by defendants No.2 through two cheques and executed on agreement on 23.07.2004?

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2. Whether the plaintiff was never ready and willing to perform his part of contract?

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3. Whether defendant no.5 to 8 proves that they are bonafide purchasers of the suit property for value?

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4. Whether the agreement dated 23.07.2004 is incapable of being enforced?

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5. What Order or Decree?

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Thereafter, testimony of the witnesses were

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recorded and after considering the evidence, the trial

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RFA No. 38 of 2012

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Court proceeded to dismiss the suit. The plaintiff was examined as PW-1, and documents Exs.P.1 to P.6 were marked. One witness was examined on behalf of plaintiff as PW-2. However neither of the witnesses were crossexamined by the defendants. The plaintiff closed his side. The defendants did not adduce any evidence from their side and their side was closed.

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On issue Nos.1 and 2, the finding of the trial

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Court was in the negative and on issue Nos.3 and 4, the findings were in the affirmative.

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The contention of the learned counsel for the appellant is that the trial Court has misdirected itself in coming to an unwarranted conclusion that the Aide Memorie executed on 23.07.2004 is a document different from an agreement to sell which was of a later date. It is stated that the contents of the plaint have been misinterpreted and misconstrued by the trial Court. Learned counsel has placed the Aide Memorie which is Ex.P.1 to contend that it reflected an acceptance, description of the property was clearly specified therein

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RFA No. 38 of 2012

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and the amount of consideration as well as the advance payment made, were duly recorded. It is stated that the terms and conditions were mentioned in the Aide Memorie which reflected that it is an agreement to sell. Learned counsel has referred to the Aide Memorie to state that the time was not the essence of the contract. It is stated that the defendants were required to produce the title deeds and other documents to the satisfaction of the purchasers advocate and on failure to do so, the sellers would return the amount on demand and till then the purchasers would have claim on the property and also enforce that contract at the sellers cost and in case of variation in the area of the property being found on joint survey, proportionate variation would be made in the sale price. It is stated that it was signed in the presence of the witnesses by the defendants as well as the appellant on 23.07.2004. The contention is that as far as interpretation of deed is concerned, the intention of the parties is to be gathered from the contents of the documents and not by its title. In support of the said contention he relied on the judgments

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of Supreme Court in the case of B.K. Muniraju Vs. State of

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Karnataka and Ors .¹ and Namburi Basava Subramanyam V. Alapati Hymavathi,² .

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With regard to his submission that time is not

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the essence of contract with respect to immovable property, the following judgments have been relied upon.

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i) Gaddipati Divija and another v. Pathuri Samrajyamand others³

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ii) Chand Rani V. Kamal Rani⁴ and

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iii) Saradamani Kandappan Vs. S. Rajalakshmi⁵

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It is stated that earlier, in the case of Chand

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Rani ( supra ) it was observed by the Supreme Court that even if time is not essence of the contract, the Court may infer that it is to be performed in a reasonable time if certain conditions are evident.

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Since, the admitted case is that the defendants

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did not cross-examine the plaintiff nor did they lead any evidence, adverse inference is to be drawn against such a party. In support of that, he has relied on the judgments

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1 (2008) 4 SCC 451

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2 (1996) 9 SCC 388

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3 2023 SCC OnLine SC 442

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4 (1993) 1 SCC 519

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5 (2011) 12 SCC 18

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RFA No. 38 of 2012

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in Muddasani Venkata Narasaiah Vs. Muddasani

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Sarojana⁶ and Vidhyadhar Vs. Manikaroa and another⁷ .

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With regard to the aspect that subsequent

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transferees can be made parties to join in executing a sale deed in favour of the plaintiff without seeking cancellation

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of their sale deed the following judgments were cited:

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i) P. Ramasubbamma Vs. V. Vijayalakshmi and others⁸ and

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ii) Maharaj Singh and others Vs. Karan Singh⁹

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Learned counsel appearing for respondents No.1 to 4 has urged that the Aide Memorie – Ex.P.1 does not reflect offer and acceptance. It is a still-born document which will not give any right to the plaintiff/appellant. Learned counsel has quoted the definition of Aide Memorie appearing in the 5^th edition of Oxford English Dictionary which reflects that it is “(book, document, serving as) an aid to memory (est. in diplomatic use)”. It is stated that such a document cannot be considered to be an

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6 (2016) 12 SCC 288

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7 (1999) 3 SCC 573

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8 (2022) 7 SCC 384

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9 (2024) 8 SCC 83

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agreement to sell. His further contention is that Ex.P.1 does not have any date but in the plaint it is reflected that this was executed on 23.07.2004. It is stated that on one hand that two cheques that are referred in the Aide Memorie bear the date of 08.07.2004, yet the Aide Memorie was signed on 23.07.2004. It is quite suspicious inasmuch as the Memorie ought to have been signed on 08.07.2004 itself. His contention is that it is the Aide Memorie that was executed on 08.07.2004, however, the agreement to sell that was executed on 23.07.2004 had not been produced and therefore the trial Court was justified in dismissing the suit of the plaintiff for not producing the agreement to sell. His further contention is that the full description of the property has not been given in the Aide Memorie. Therefore, it cannot be considered to be an agreement to sell. It is stated that the terms and conditions are required to be recorded in an agreement to sell which do not exists in the Aide Memorie. It is further stated that the stamp duty has not been paid in full and therefore no credence to be attached to such document

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(Ex.P.1).

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RFA No. 38 of 2012

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Learned counsel appearing for the legal representatives of defendant No.7 stated that during the pendency of the suit itself, defendant No.7 died on 09.01.2010 and the suit was dismissed on 21.11.2011. His contention is that therefore the suit has been decreed against a dead person. He further states that defendant No.7 and by extension, his legal representatives are bonafide purchasers of the suit schedule property and therefore the suit was correctly dismissed.

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The plaintiff/appellant submitted his

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examination-in-chief by way of an evidence affidavit dated 31.01.2011 and was also called for the purposes of his examination-in-chief in Court and his depositions were recorded on 28.03.2011 and on 17.09.2011.

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The PW.2, who is a witness to the Aide Memorie, also submitted his evidence by way of an affidavit dated 21.06.2011 and was also called to testify in his examination-in-chief before the Court on 21.07.2011.

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The Aide Memorie dated 23.07.2004 was proved

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by the PW.1 and marked as Ex.P1. He also proved and marked Ex.P2, which were the four unserved envelopes (pertaining to notice). Ex.P3 is the statement of the over draft account of the plaintiff/appellant, in his account maintained at the ABN-AMRO Bank showing the description, deposit, withdrawal and balance amounts therein. Ex.P4 is the paper publications. Ex.P5 which is the sale deed dated 08.12.2004 executed by the defendant No.1-Manjula in favour of the Defendant Nos. 5, 6, 7 & 8 transferring the disputed property for a sale consideration of Rs.47.00 Lakhs. This was proved by the PW.1 on 17.09.2011. Yet another sale deed dated 04.11.2004 was marked as Ex.P6 by the PW.1, which is the sale deed entered into between the Defendant Nos.2, 3 & 4 as ‘vendors’, in their personal capacity as well as in their capacity as GPA holders for,- (a) Smt.Subbamma; (b)Smt. Chikkammaiah @ Hanumakka; (c) Smt. R. Shakuntala; and (d) Smt. R. Vishalakshi, in favour of the Defendant Nos. 5, 6, 7 & 8 being the remaining part of the disputed property for a sale consideration of Rs.47.00 Lakhs.

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The points for determination that would arise in

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the instant case are:-

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i) Whether the Aide Memorie dated 23.07.2004 executed by the defendant Nos. 1 to 4 (Ex.P1) is an agreement to sell and is capable of being enforced?

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ii) Was time not the essence of the contract?

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iii) Whether the plaintiff/appellants are entitled to a decree of specific performance?

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The points for determination are taken up for consideration together.

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In the written statement of the defendants No.1 to 4, the area of Sy.No.78/3 being 32 guntas and Kharab land of 6 guntas which is described in the schedule of the plaint is not denied. It is also not denied that the defendants No.1 to 4 are the owners of the disputed property.

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In their written statement, the defendants No.1 to 4 have denied entering into an agreement to sell the disputed land on 23.07.2004. It is also denied that an Aide Memorie had been executed and the plaintiff is ready

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RFA No. 38 of 2012

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and willing to pay duty and penalty on that document as it is insufficiently stamped and that out of the total extent of land 19 guntas was agreed to be registered after legal clearance and paper publication to be issued within 20 days, and that the balance land to be registered within two months.

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However, what the defendants No.1 to 4 have not denied is that the Ex.P1, which is the Aide Memorie, does bear their signatures. The Aide Memorie bears signatures of the four ‘sellers’ over the names of the defendants No.1 to 4 and ‘purchaser’ who is the plaintiff, and is attested by two witnesses on 23.07.2004. The signatures of the defendants No.1 to 4 in their written statement tallies with the signatures of the ‘sellers’ in Ex.P1, the Aide Memorie. Therefore, it is held that the Ex.P1, the Aide Memorie was signed and executed by the defendants No.1 to 4.

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Now coming to the contents of the Aide

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Memorie:-

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RFA No. 38 of 2012

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25.1. The 1^st page discloses the names and address of the owners, that is the defendant Nos. 1 to 4. The name of the purchaser that is the plaintiff is also mentioned on page-2 are the description and extent of the property (including the Survey No., area, location and boundaries), the rate agreed, the terms of advance payment (which reflects cheque of Rs.6.00 Lakhs in favour of the defendant No.2 and a cheque of Rs.5.00 Lakhs in favour of defendant No.1).

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25.2. The aforesaid terms of payment and advance, continue on page 3 of the Aide Memorie, which also reflect that both cheques were dated 08.07.2004. Moreover, 16 guntas + 03 guntas kharab land is to be registered after legal clearances and paper publication within 20 days of the above and balance area within two months of earlier registration. On page 3 itself, against the heading of ‘other terms’, it is mentioned that all legal heirs of the above mentioned vendors to sign at the time of registration and further agreement if any. Thereafter, on page 3, the following covenants are mentioned:

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RFA No. 38 of 2012

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“The Vendors undertakes with the Purchaser that they have not signed any agreement with any third parties and they further undertakes with the purchaser that they will not encumber the aforesaid property by way of Sale, Lease, Mortgage etc., during the subsistence of the Agreement of Sale and till the Sale Deed is registered in favour of the purchaser or in favour of the nominee/s. Further, it is hereby agreed that absolute sale of the Scheduled property shall be completed and vacant position shall be delivered against payment of the balance sale consideration before the Sub-Registrar and the sale is subject to marketability of title and free from all encumbrances and the cost of Stamp paper and registration fees to be met by the Purchaser and all the title deeds will be produced to the satisfaction of the Purchaser’s advocate and on failure the sellers will return the amount on demand and till then the purchaser will have the claim on the property and can also enforce this contract at the sellers cost and in case variation in the area in the property is found on joint survey, proportionate variation will be made in the sale price.”

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25.3. Lastly, on page 4 the following recitals appear:-

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“The Scheduled property is free of all encumbrances and the seller/s are the absolute owners and sole signatories for the sale of property.”

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RFA No. 38 of 2012

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“The contents of this agreement has been read over and explained to the sellers in their native language by the witnesses to this agreement.”

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In the written statement filed by the

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defendants Nos. 1 to 4 it is stated that the relief as claimed in the suit is incapable of being granted as insofar as 19 guntas, that is half portion of the suit schedule property is concerned, the time for performance of the contract was fixed to be 20 days from the alleged agreement and the time thus fixed has expired and the alleged agreement is incapable of being enforced. However, the 20 days referred to in the writ petition finds mention in the ‘terms of payment and advance’ in the Aide Memorie which states that 16 guntas + 03 guntas Kharab to be registered after legal clearances and paper publication within 20 days of the above (i.e., 08.07.2004, being the date mentioned in both the cheques) and balance area within two months of earlier registration. That is to say, the period of 20 days would be upto 28.07.2004, within which the said 19 guntas land was

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RFA No. 38 of 2012

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required to be registered after legal clearances and paper publication. Thus the aforesaid terms and details mentioned in the ‘Aide Memorie’ reflect that it is an agreement to sell the disputed land. Given the provision of Article 54 of the Limitation Act, 1963, a period of three years is the limitation for filing a suit for specific performance. The aforesaid suit was filed on 09.11.2005. It is pertinent to mention here that mere title of a deed should not be seen to determine the real nature of the document, but the intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record¹⁰ . As noted above, neither were the PW1 and PW2 cross examined by any of the defendants, nor did any of the defendants testify before the trial court.

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Though the learned counsel for the defendants nos. 1 to 4 has contended that the trial court was justified in observing that the ‘Aide Memorie’ and the agreement to sell were different deeds and therefore the suit must fail due to non-production of the agreement to sell, however,

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10 B.K. Muniraju v. State of Karnataka – (2008) 4 SCC 451

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RFA No. 38 of 2012

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we find that in the written statement of the defendant nos. 1 to 4 there is neither any averment nor indication that the Aide Memorie and agreement to sell are separate documents. As a matter of fact, in paragraph no.14 of the written statement it is stated that the defendants nos.1 to 4 have never executed any agreement to sell.

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On failure of the defendants No.1 to 4 to execute the sale deed, legal notice on behalf of the plaintiff was dispatched on 27.08.2004 by Registered Post with Acknowledgement Due. However, the covers were returned unserved. In the plaint, the plaintiff has stated that he has been ready and willing to perform his obligations and ready to pay the entire balance of consideration and have the sale deed registered at his cost. It was stated that, he has the necessary wherewithal to pay the same. He owns immoveable property in Bengaluru; that he requested the defendant to receive the balance of consideration and have the sale deed registered, but the defendants are postponing the same on some pretext or the other. The plaintiff as PW1

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RFA No. 38 of 2012

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has stated that in his testimony that he has been ever ready and willing to perform his obligations namely by paying the balance of consideration and have the sale deed registered at his cost and he has the wherewithal to pay the same. The PW1 has not been cross-examined. The suit was filed about one year and four months from the date of the cheques dated 08.07.2004. Thus it is inferred that the plaintiff was ever ready and willing to perform his part of the contract.

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As far as the plea in the written statement that time was the essence of the contract, the terms in the Aide Memorie that have been quoted above, reveal that defendants nos.1 to 4 undertook that they have not signed any agreement with any third parties and that they will not encumber the aforesaid property by way of sale, lease, mortgage etc., during the subsistence of the Agreement of Sale and till the Sale Deed is registered in favour of the purchaser or in favour of the nominee/s. Further, it was agreed that absolute sale of the Scheduled property shall be completed and vacant position shall be delivered

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RFA No. 38 of 2012

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against payment of the balance sale consideration before the Sub-Registrar and the sale is subject to marketability of title and free from all encumbrances. All title deeds were required to be produced to the satisfaction of the plaintiff’s advocate and on failure the defendants would return the amount on demand and till then the plaintiff would have claim on the disputed property and could also enforce this contract at the sellers cost and in case variation in the area in the property is found on joint survey, proportionate variation would be made in the sale price. Thus the terms reflect that time was not the essence of the contract, but that it should be reasonable time. The law in this regard was iterated by the Supreme Court in Gaddipati Divija and Another Vs. Pathuri Samrajyam and others¹¹ . As already stated above, the Aide Memorie though did prescribe a schedule specifying certain time periods for execution of two sale deeds, however the plaintiff has proceeded to seek its enforcement well within time and without untoward delay.

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11 2023 SCC Online SC 442

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RFA No. 38 of 2012

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As such the plaintiff cannot be non-suited on the ground that time is the essence of contract.

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As far as the averment made in the plaint that the amounts of Rs.6.00Lakhs and Rs.5.00 Lakhs were paid by cheques drawn in favour of the defendant Nos. 2 & 1 respectively and that both the cheques were encashed, this is not denied by the defendants No.1 to 4. Therefore, the consideration for the agreement which is the Aide Memorie being the amount of money tendered by the two cheques which were encashed by the defendants, the contract stood concluded.

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As noted aforesaid, neither the plaintiff was cross-examined by any of the defendants and neither did any of the defendants appear as witnesses to testify. As such adverse inference is liable to be drawn against the defendants. ( ref: Muddasani Venkata Narasaiah Vs. Muddasani Sarojana¹² and Vidhyadhar v. Manikaroa &

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12 (2016) 12 SCC 288

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RFA No. 38 of 2012

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Another.¹³ ) Therefore, we answer points No. (i), (ii) & (iii) in the affirmative.

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As far as the contention of the learned counsel for the petitioner is concerned that the defendant no.7 had died during the pendency of the suit but his legal representatives were not brought on record, it is noted that the legal representatives of the defendant no.7 have already been substituted in the instant appeal after his death was intimated before the Court.

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This brings us to the question that what would be the effect of the aforesaid findings and what relief can be granted. As noted aforesaid, the disputed property has been sold by means of two sale deeds dated 08.12.2004 and 04.11.2004 by the defendant Nos. 1 to 4 in favour of the defendant Nos.5, 6, 7 & 8. A decree of specific performance has been sought against all the defendants, with an averment being made in Para-17 of the plaint that defendant Nos. 5 to 8 are bound to join in execution of the sale deed in favour of the plaintiff or his nominees along

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13 (1999) 3 SCC 573

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RFA No. 38 of 2012

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with defendant Nos. 1 to 4. If the defendants No.5 to 8 do not join, they would have to pass on their title to the plaintiff.

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The Supreme Court in the case of Maharaj

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Singh and Others Vs. Karan Singh and others¹⁴ considered the question that whether in view of the decision of this Court in B. Vijaya Bharathi Vs. P. Savitri and Others¹⁵ , the plaintiffs are not entitled to a decree of specific performance in the absence of any prayer for cancellation of the two subsequent sale deeds? Referring to the judgment of a Bench of three Hon’ble Judges of the Supreme Court in Durga Prasad Vs. Deep Chand¹⁶ the Supreme Court observed as follows:-

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20. Now, we deal with another argument that the plaintiffs ought to have prayed in the suit to cancel the subsequent sale deeds executed by the first defendant. On this aspect, the law has been laid down by a Bench of three Hon'ble Judges of this Court in Durga Prasad v. Deep Chand [Durga Prasad v. Deep Chand, (1953) 2 SCC 509] , paras 40 to 42 of the said decision read thus : (SCC p. 532)

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14 (2024) 8 SCC 83

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15 (2018) 11 SCC 761

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16 (1953) 2 SCC 509

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RFA No. 38 of 2012

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“40. First, we reach the position that the title to the property has validly passed from the vendor and resides in the subsequent transferee. The sale to him is not void but only voidable at the option of the earlier “contractor”. As the title no longer rests in the vendor it would be illogical from a conveyancing point of view to compel him to convey to the plaintiff unless steps are taken to revest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him. We do not know of any case in which a reconveyance to the vendor was ordered but Sulaiman, C.J. adopted the other course in Kali Charan Singh v. Janak Deo Singh [Kali Charan Singh v. Janak Deo Singh, 1932 SCC OnLine All 154] . He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordance with the contract of sale of which the plaintiff sought specific performance. But though this sounds logical the objection to it is that it might bring in its train complications between the vendor and the subsequent purchaser. There may be covenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a desirable solution.

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41. We are not enamoured of the next alternative either, namely, conveyance by the subsequent purchaser alone to the plaintiff. It is true that would have the effect of vesting the title

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to the property in the plaintiff but it might be inequitable to compel the subsequent transferee to enter into terms and covenants in the vendor's agreement with the plaintiff to which he would never have agreed had he been a free agent; and if the original contract is varied by altering or omitting such terms the court will be remaking the contract, a thing it has no power to do; and in any case it will no longer be specifically enforcing the original contract but another and different one.

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42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [1930 SCC OnLine Cal 46] and appears to be the English practice. See Fry on Specific Performance, 6th Edn., p. 90, Para 207; alsoPotter v. Sanders [Potter v. Sanders, (1846) 6 Hare 1 : 67 ER 1057] . We direct accordingly.”

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21. Reliance is placed by the appellants on the decision of this Court in B. Vijaya Bharathi [B. Vijaya Bharathi v. P. Savitri, (2018) 11 SCC 761 : (2018) 5 SCC (Civ) 239] . In para 17 of the said decision, this Court held thus : (SCC pp. 767-68)

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“17. It must also be noted that though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again, would stand in the way of a decree of specific performance for unless the sale made by Defendant 1 to Defendant 2, and thereafter by Defendant 2 to Defendant 3 are set aside, no decree for specific performance could possibly follow. While Mr Rao may be right in stating that mere delay without more would not disentitle his client to the relief of specific performance, for the reasons stated above, we find that this is not such a case. The High Court was clearly right in finding that the bar of Section 16(c) was squarely attracted on the facts of the present case, and that therefore, the fact that Defendants 2 and 3 may not be bona fide purchasers would not come in the way of stating that such suit must be dismissed at the threshold because of lack of readiness and willingness, which is a basic condition for the grant of specific performance.”

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(emphasis supplied)

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22. A Bench of two Hon'ble Judges has rendered this decision. Unfortunately, the attention of the Bench was not invited to binding precedent in the form of a decision of a larger Bench in Durga Prasad [Durga Prasad v. Deep Chand, (1953) 2 SCC 509] . Hence, the decision in B. Vijaya Bharathi [B. Vijaya Bharathi v. P. Savitri, (2018) 11 SCC 761 : (2018) 5 SCC (Civ) 239] is not a binding precedent. Therefore, there was no requirement to make a prayer in the

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plaint for cancellation or setting aside the subsequent sale deeds.

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23. Clauses (a) to (c) of Section 19 of the Specific Relief Act read thus:

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“ 19. Relief against parties and persons

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claiming under them by subsequent title .— Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against—

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(a) either party thereto;

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(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

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(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;”

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(emphasis supplied)

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24. In view of clause (b) of Section 19, the defendants who are claiming under the sale deeds executed after the execution of the suit agreement can be subjected to a decree of specific performance as the suit agreement can be enforced specifically against such defendants unless they are bona fide purchasers without the notice of the original contract. When, in a given case, the defendants, who are subsequent purchasers, fail to prove that they entered into

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the sale deed in good faith and without notice of the suit agreement, in view of Section 19(b), a decree for specific performance can be passed against such defendants. Therefore, in such a case where Section 19(b) is applicable, under the decree of specific performance, the subsequent purchasers can be directed to execute the sale deed along with the original vendor. There is no necessity to pray for the cancellation of the subsequent sale deeds.

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Further, in Maharaj Singh, another question that was considered was “were the second to fourth defendants bona fide purchasers for value without notice of the suit agreement?” The Supreme Court answered this question as follows:-

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“19. The three courts concurrently found that under the Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976, clause (v) of Section 17(2) of the Registration Act, 1908 was amended, which made an agreement for the sale of an immovable property, a compulsorily registerable document in the State. On this aspect, no arguments have been canvassed by the appellants. Therefore, in view of Explanation 1 to Section 3 of the TP Act, the second to fourth defendants shall be deemed to have knowledge of the suit agreement, which was duly registered. It cannot be said that the second to fourth defendants had no knowledge of the suit agreement in view of the constructive notice. It is not their case that they took a search in the office of the Sub-Registrar before getting the sale deeds in their favour.

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Hence, it cannot be said that they paid money in good faith to the first defendant. Therefore, the second to fourth defendants can never be held to be bona fide purchasers who have paid consideration in good faith without the notice of the suit agreement.”

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Further, the fact that the plaintiff had entered into an agreement to purchase the disputed property was published in Kannada and English newspapers of 30.07.2004 and 31.07.2004 intimating about the purchase and calling for objections. In view of the aforesaid, it cannot be said that the defendant Nos. 5 to 8 are bonafide purchasers. Accordingly, the defendants No.5 to 8 shall join the defendant Nos. 1 to 4 in execution of necessary sale deeds in favour of the plaintiff.

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For the reasons aforesaid we pass the following

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order:-

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i) The appeal is allowed.

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ii) The defendants shall execute and register deeds of sale in favour of the plaintiff or his nominee/s in respect of the suit schedule property after receiving the balance of consideration from the plaintiff and are directed to put the plaintiff in possession of the suit property within a period of three months. The

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