Sargunam Vs. Chidambaram &
Another  Insc 621 (7 October 2004)
Ashok Bhan & S.H. Kapadia
This civil appeal, by grant of special leave, is directed against the
judgment and order dated 24.2.1999 passed by the High Court of Karnataka in RFA
No.464 of 1992 decreeing the suit filed by respondent no.1 herein in the Court
of VIth Additional City Civil Judge, Bangalore, being Suit No. O.S. 8296 of
For the sake of convenience, the parties herein are referred to as they are
arrayed in the trial Court.
The facts giving rise to this civil appeal are as follows: By an agreement
for sale dated 14.6.1979, R.
Srinivasan, (since deceased) agreed to sell the suit premises bearing
No.15/18/1, Cambridge Road, Ulsoor, Bangalore to Shri Chidambram (respondent
no.1 herein) for a sum of Rs.16000/-. Under the said agreement, Srinivasan
agreed to complete the sale by 13.11.1979.
Under the said agreement, the vendor agreed to sell the suit premises free
from all encumbrances. The vendor agreed to deliver the title deeds to the
plaintiff. On the execution of the agreement, the vendor received Rs.3000/-
from the plaintiff. However, the said vendor, defendant no.1, failed to carry
out his obligations under the agreement. He failed to deliver the title deeds. He
failed to clear the property free from encumbrances.
In the circumstances, the plaintiff issued legal notices on 5.11.1979 and
9.11.1979 to the vendor to carry out his obligations under the said agreement.
On 29.11.1979, plaintiff came to know that the vendor, defendant no.1, had
purported to sell the suit premises in favour of Smt. Sargunam (since
deceased), defendant no.2. In the circumstances, the plaintiff instituted suit
bearing no.8296 of 1980 in the Court of VIth Additional City Civil Judge., Bangalore
(hereinafter referred to as "the trial Court").
In the suit, it was alleged by the plaintiff that the conveyance dated
29.11.1979 executed by defendant no.1 in favour of defendant no.2 was sham and
bogus. That defendant no.2 had notice of the suit agreement. The plaintiff
further submitted that he was always ready and willing to comply with his
obligations under the suit agreement; that defendant no.1 had committed breach
thereof and consequently, he was entitled to specific performance of the suit agreement.
By written statement dated 9.7.1981, defendant no.1 alleged that he had
terminated the suit agreement as the plaintiff had failed to complete the sale
within the time stipulated in the suit agreement; that defendant no.1 had given
notice of termination to the plaintiff which notice came to be returned with
the postal remarks "refused" and, consequently, he had sold the
property to the second defendant.
On 7.8.1981, defendant no.2 filed a memo adopting the written statement of
defendant no.1 dated 9.7.1981.
On 20.11.1986, defendant no.2 filed her amended written statement. By the
said written statement, defendant no.2 alleged that the sale in her favour
dated 29.11.1979 was in pursuance of the agreement dated 15.4.1978 executed by
defendant no.1; that she was the bona fide purchaser for value without notice;
that she had no notice of the suit agreement when she entered into the
conveyance with defendant no.1 on 29.11.1979; that she was the prior purchaser
and in the circumstances, the sale in her favour was protected.
After framing the issues and after recording evidence, the trial Court inter
alia held that the time was essence of the suit agreement (Ex.P1); that the
plaintiff had failed to complete the sale by 13.11.1979; that the plaintiff had
failed to pay the balance amount by 13.11.1979, which period was essence of the
that defendant no.1 was always ready and willing to comply with his part of
the contract and, therefore, he had every right to sell the suit premises vide
Ex.P17 dated 29.11.1979 to the second defendant. The trial Court further held
that the plaintiff had failed to prove that defendant no.2 had notice of the
suit agreement (Ex.P1); that Ex.P17 was pursuant to the agreement dated
15.4.1978 (Ex.D4) and in the circumstances, the plaintiff had failed to prove
that Ex.P17 was sham, bogus and nominal. Consequently, vide judgment and order
dated 24.9.1992, the trial Court dismissed the suit.
In appeal, the High Court, as the First Appellate Court, re-appreciated the
evidence and came to the conclusion that the second defendant had notice of
Ex.P1 dated 14.6.1979 at the time of the sale, Ex.P17; that Ex.D4 dated
15.4.1978 was concocted and was made to defeat the claim of the plaintiff; that
the signatures of the vendor on Ex.D4 differed from signatures on Ex.P17;
that defendant no.2 did not prove her signature on Ex.D4;
and in the circumstances, Ex.P17 was not protected. In the circumstances,
the High Court reversed the findings of the trial Court and decreed the
Being aggrieved, legal representative of defendant no.2 has come to this
Court by way of this civil appeal.
Mr. S. Muralidhar, learned counsel appearing on behalf of the original
defendant no.2 (appellant herein) submitted that the trial Court had exercised
its discretion on the basis of evidence on record in refusing the relief for
specific performance sought by the plaintiff and in the circumstances, the High
Court should not have interfered with the findings of fact recorded by the
trial Court. He contended that prior to the suit agreement, Ex.P1, defendant
no.2 had agreed to purchase the suit premises from defendant no.1 as far back
as 15.4.1978 vide Ex.D4, and, therefore, defendant no.2 was the prior purchaser
of the suit premises. He contended that in pursuance of Ex.D4, defendant no.1
had executed Ex.P17 in favour of defendant no.2; that the balance consideration
of Rs.11,500/- was paid by defendant no.2 to defendant no.1 at the time of the
conveyance Ex.P17; that Ex.D4 has been duly signed by the vendor and the vendee
and was duly attested and, therefore, the High Court had erred in coming to the
conclusion that Ex.D4 was concocted.
Learned counsel further submitted that defendant no.2 had no notice of Ex.P1
when she entered into the conveyance Ex.P17 and that defendant no.2 had paid
the balance consideration of Rs.11,500/- without notice of Ex.P1. In the
circumstances, it was urged that the trial Court was right in dismissing the
Lastly, it was urged that defendant no.2 was in possession of the suit
premises for last couple of years and consequently, the High Court ought to
have refused the decree for specific performance as passing of such a decree
would cause greater hardship to the second defendant as compared to the
In this civil appeal, two points arise for determination viz. whether it is
proved before the trial Court that defendant no.2 was a bona fide purchaser for
value without notice and whether the plaintiff has proved that Ex.P17 was sham,
bogus and nominal sale entered into to defeat the claim of the plaintiff.
In the case of Jagan Nath v. Jagdish Rai reported in [AIR 1998 SC 2028], it
has been held that where a transferee has knowledge of facts which would put
him on enquiry which if prosecuted would have disclosed a previous agreement,
such transferee is not a transferee without notice of the original contract
within the meaning of exception in section 19(b) of the Specific Relief
Similarly, in the case of Baburam Bag v. Madhab Chandra Pallay reported in
[AIR 1914 Cal. 333], it has been held that possession of a property by a tenant
affects subsequent purchaser with notice of the tenant's rights, and if the
purchaser fails to make enquiry, into the nature of that possession, he cannot
claim to be a transferee without notice under section 27(b) of the Specific Relief
In the light of the above tests, we may now examine the evidence on record.
At the outset, it may be noted that on 12.2.1980, the above suit was filed in
which the plaintiff inter alia alleged that Ex.D4 was never acted upon by
defendants no.1 and 2 and that Ex.P17 was not entered into pursuant to Ex.D4.
It was further alleged that defendant no.2 had notice of Ex.P1 at the time she
entered into the conveyance Ex.P17. On 9.7.1981, defendant no.1 filed his
written statement. He did not deny the above allegations mentioned in the
plaint. On 7.8.1981, defendant no.2 adopted the written statement of defendant
no.1. She filed a short memo stating that she was adopting the written
statement of defendant no.1.
On 20.11.1986, after five years, defendant no.2 files an amended written
statement in which she denies for the first time the aforestated allegations of
the plaintiff concerning Ex.D4. She does not explain the delay in not filing
the written statement for five years. In his evidence, DW1 conceded that Ex.P17
does not refer to Ex.D4. He further conceded that in the conveyance Ex.P17,
there was no recital stating that the conveyance was being executed pursuant to
Ex.D4. In the circumstances, it cannot be said that Ex.P17 was executed
pursuant to Ex.D4. Further, there is no evidence to show that time to complete
the sale under Ex.D4 was ever extended by defendant no.1.
PW1 in his evidence has deposed that he was a tenant of the suit premises
from 1945; that defendant no.2 had instituted an eviction suit under section
21(1)(h) of the Karnataka Rent Control Act, 1961 on the ground of bona fide
requirement after she had entered into the conveyance Ex.P17. PW1 in his
evidence has further stated that he had entered into the agreement Ex.P1 with
defendant no.1 when he came to know that defendant no.1 intended to sell the
suit premises. It is at this stage that PW1 offered to purchase the suit
premises. PW1 has further deposed that the agreement Ex.P1 was for Rs.16000/-
whereas the conveyance Ex.P17 was for Rs.12000/-. PW1 further deposed that he
had paid Rs.3000/- as advance on 14.6.1979, at the time of entering into the
agreement Ex.P1. PW1 in his evidence has further deposed that defendant no.1
had agreed to deliver title deeds of the suit premises to him; that defendant
no.1 had agreed to sell the suit premises free from all encumbrances; that the
final sale was to be completed by 13.11.1979, by which time defendant no.1 had
agreed to free the suit premises from all encumbrances; that after entering
into the agreement Ex.P1, defendant no.1 informed PW1 that the title deeds were
with the money lender; and accordingly on 5.10.1979 PW1 paid a further sum of
Rs.1000/- to the first defendant to enable him to get back the title deeds.
PW1 in his evidence has further deposed that he had given legal notices on
5.11.1979 and 9.11.1979 calling upon defendant no.1 to complete the sale; that,
however, defendant no.1 had failed to carry out his contractual obligations and
in the circumstances PW1 instituted the suit for specific performance.
On behalf of defendant no.1, DW1 was examined.
DW1 is the husband of defendant no.2. DW1 is the constituted attorney of
defendant no.2. DW1 deposed in his evidence that before entering into the
conveyance Ex.P17, defendant no.1 had informed DW1 that Ex.P1 was executed on
account of coercion and threats given by PW1. This evidence has been rightly
relied upon by the High Court to come to the conclusion that defendant no.2 had
notice of Ex.P1 when she entered into conveyance, Ex.P17, on 29.11.1979. DW1
has not given any reason as to why there is no reference to Ex.D4 and Ex.P1 in
the conveyance Ex.P17. DW1 has not produced any evidence to show that defendant
no.1 had extended the time to complete the sale under Ex.D4, as alleged by
defendant no.2. In the circumstances, the High Court was right in coming to the
conclusion, on the above evidence, that defendant no.2 has failed to prove that
she was a bona fide purchaser of the suit premises for value without notice.
Lastly, the evidence on record indicates that Ex.P17 was a nominal sale. It
was executed in order to defeat the plaintiff's claim. In this connection, the
evidence on record shows that the signatures of the vendor on Ex.D4 do not
tally with the signatures with Ex.P17. There were two attesting witnesses who
were examined on behalf of the defendants. Both the attesting witnesses have
deposed that the signatures of defendant no.1 on Ex.D4 did not tally with the
signatures on Ex.P17. Therefore, the High Court was right in coming to the
conclusion that Ex.D4 was a concocted document.
In the circumstances, we do not see any reason to interfere with the
findings recorded by the High Court.
As stated above, it was urged on behalf of defendant no.2 that the present
case falls under section 20(2)(b) of the Specific Relief
Act, 1963; that in the present case, the family of defendant no.2 is in
possession of the suit premises for the last couple of years; that the
performance of the contract Ex.P1 would involve hardship on the defendant
whereas its non- performance would involve no hardship on the plaintiff.
We do not find any merit in this argument.
In the case of Mademsetty Satyanarayana v. G.
Yelloji Rao and others reported in [AIR 1965 SC 1405], it has been held that
the jurisdiction to decree specific performance is discretionary and the Court
is not bound to grant such relief merely because it is lawful to do so;
that in cases where one of the three circumstances mentioned in section
20(2) is established, no question of discretion arises. Hence, in this case, we
are required to examine, on facts, whether the circumstances in section
20(2)(a) or section 20(2)(b) are established.
In the case of P. D'Souza v. Shondrilo Naidu reported in [(2004) 6 SCC 649]
it has been held that Explanation-I appended to section 20 clearly stipulates
that mere fact that the contract is onerous to the defendant or improvident in
its nature would not constitute an unfair advantage within the meaning of
Applying the above tests to the facts of the present case, we find that
defendant no.2 was aware of plaintiff's possession in the suit premises as a
tenant. Defendant no.2 had filed, in the Court of Small Causes, Bangalore, HRC
No.10561/81 for eviction of the plaintiff herein, under section 21(1)(h) of the
Karnataka Rent Control Act, 1961. A bare reading of the order dated 14.10.1985
passed by the Small Causes Court in the above eviction suit indicates that
defendant no.2 was put to notice that in case the plaintiff succeeds in the
suit for specific performance, defendant no.2 will have to vacate. In the
circumstances, it cannot be said that second defendant was not in a position to
foresee the ensuing hardship.
Hence, section 20(2)(b) is not applicable to the facts of the present case.
In any event, as stated above, defendant no.2 had notice of Ex.P1 when she
entered into the conveyance Ex.P17.
In the result, the appeal fails and is dismissed, with no order as to costs.