P.Retnaswamy v. A.Raja

conclusion in the suit that the appellant/plaintiff has not provedEx.P.1-Agreement dated 10.07.1996 as a true, genuine and validdocument etc. and resultantly, held that the appellant/plaintiff isnot entitled to the relief of specific performance as per Ex.P.1-Agreement dated 10.07.1996 and also held that the secondrespondent/second defendant is a bona fide purchaser for value withoutnotice and dismissed the suit without costs.4.The learned counsel for the appellant/plaintiff urges that thelearned Single Judge is not correct in coming to the conclusion thatEx.P.1-Agreement for sale dated 10.07.1996 has not been proved andwhen the first respondent/first defendant has not filed the writtenstatement and contested the matter and when the signature of the firstrespondent/first defendant has not been disputed, the finding arrivedat by the learned Single Judge that Ex.P.1-Agreement for sale dated10.07.1996 is not proved, is unsustainable in law and that the viewtaken by the learned Single Judge that the plaintiff/appellant shouldhave examined atleast one contesting witness to prove Ex.P.1 is notcorrect, in view of the fact that there is no need for theappellant/plaintiff to examine the attestor to establish Ex.P.1-Agreement for sale.5.The further plea of the appellant/plaintiff is that the learnedSingle Judge ought to have held that Ex.D.4-sale deed dated 30.01.1997is not a genuine sale deed and that the recitals of the said sale deedwill only prove the case of the appellant/plaintiff that the sale deedis a sham and nominal one.6.According to the learned counsel for the appellant/ plaintiff,the first respondent/first defendant issued many cheques on15.06.1998, including a post dated cheque and when the firstrespondent/first defendant has not disputed the claim made in theplaint, it is not open to the second respondent/second defendant todispute the same.7.It is significant to point out that when theappellant/plaintiff has filed the suit for specific performanceoriginally, the first respondent alone has been arrayed as adefendant. The second respondent/second defendant has been impleadedas party in the suit as per order in Application No.848 of 1998 dated24.08.1998 and as per order in Application No.3434 of 1998 dated08.10.1998.8.The case of the appellant/plaintiff is that the firstrespondent/first defendant has proposed to sell the plaint scheduleproperty to him for a consideration of Rs.10,05,000/- (Rupees Tenlakhs and five thousand only) and the appellant/plaintiff has acceptedand agreed to purchase the same and that the appellant/plaintiff andfirst respondent/first defendant executed a sale agreement on https://hcservices.ecourts.gov.in/hcservices/

10.07.1196 and pursuant to the agreement, the appellant/ plaintiffpaid Rs.8,05,000/- to the first respondent/first defendant as part ofsale consideration and the balance of Rs.2,00,000/- to be paid withinnine months from 10.07.1996 by the appellant/plaintiff to the firstrespondent/first defendant and to get the sale deed executed.9.It is the further case of the appellant/plaintiff that when heapproached the first respondent/first defendant on 03.02.1997 forproduction of the original documents pertaining to the suit propertyfor the purpose of obtaining legal opinion and informing that he isready with the balance amount of Rs.2,00,000/- for registration ofsale deed, the first respondent/first defendant has not handed overthe original title deeds and that the appellant/ plaintiff asinformation from reliable sources that the first respondent/firstdefendant is actively negotiating with the third parties to sell thesuit property, in violation of the agreement of sale dated 10.07.1996.10.The appellant/plaintiff's counsel contends that theappellant/plaintiff made enquiry in the District Registrar's OfficeSouth and that he came to know that the suit property was sold infavour of second respondent/second defendant for a consideration ofRs.4,60,000/-, as per sale deed dated 31.01.1997 (document No.326) andthat the encumbrance certificate dated 18.02.1997 indicated that thefirst respondent/first defendant was the owner till 17.02.1997.11.According to the learned counsel for the appellant, the realvalue of the property is more than Rs.10 lakhs and that the propertywas sold for a paltry sum of Rs.4,60,000/- and in fact, no such sumwas paid by the second respondent/ second defendant to the firstrespondent/first defendant and that the second respondent/seconddefendant is only a name lender and as such, no right has accrued infavour of the second respondent/second defendant and that the saledeed dated 31.01.1997 executed by the first respondent/first defendantin favour of the second respondent/second defendant is void and nonest in law.12.The stand of the second respondent/second defendant is thatthe appellant/plaintiff filed Application No.95 of 1997 praying forthe relief of interim injunction restraining the firstrespondent/first defendant from alienating the suit property pendingsuit and the first respondent/first defendant filed a counter statingthat he has not entered into an agreement with the appellant/plaintiff for sale of the suit property and that a sum ofRs.8,05,000/- received from the appellant/plaintiff was only towardsloan, since they were employees in the same organisation andtherefore, it is clear that the so-called agreement is sham and thatthe said application was dismissed by the Court on 03.04.1997.13.The learned counsel for the second respondent/second defendant https://hcservices.ecourts.gov.in/hcservices/ submits that the second respondent/second defendant purchased the suitproperty for value by a registered sale deed dated 30.01.1997, priorto the date of filing of the suit and that the appellant/plaintiff andthe first respondent were of the same department and that theappellant/plaintiff has fabricated the sale agreement dated 10.07.1996and that it is the contention of the first respondent/first defendantthat he used to take loans from the appellant/plaintiff and in thisregard, the first respondent/first defendant has handed over to theappellant/plaintiff stamp papers and white papers affixed with revenuestamps duly signed and these papers were utilised for creating thesale agreement and therefore, the said agreement is fabricated, shamand void.14.Expatiating his contentions, the learned counsel for thesecond respondent/second defendant contends that the suit property waspurchased by the second respondent/second defendant by means of aregistered sale deed dated 31.01.1997 and that the secondrespondent/second defendant had no notice of prior agreement and thathe is a bona fide purchaser for value and that the secondrespondent/second defendant has obtained an encumbrance certificatefor the period from 01.01.1961 to 31.12.1993 on 06.12.1996 and anotherencumbrance certificate has been obtained by the secondrespondent/second defendant in regard to the period from 01.07.1974 to09.07.1996 on 15.07.1996 and another encumbrance certificate has beenobtained for the period from 01.01.1994 to 04.12.1996 on 24.12.1996and for the period from 01.12.1996 to 30.04.1998, the secondrespondent/second defendant has obtained the encumbrance certificateafter registration of the sale deed on 20.05.1998.15.For the proposition that the second respondent/ seconddefendant is a bona fide purchaser for value, the learned counsel forthe second respondent/second defendant cited the decision 2007(1) CTC449 Jayalakshmi Ammal and 8 others V. Chinnasamy Gounder, whereby itis held as follows:"Evidence Act, 1872 (1 of 1872) Sections 3, 101 to 103 –Appreciation of Evidence and Burden of Proof – Defendant whowas owner of property in Suit for specific performancepleaded that he was pressurized to sign in blank papers byplaintiff and plaintiff had created agreement by using suchpapers – Burden of proving existence of agreement isprimarily on plaintiff – When defendants admitted signaturebut pleaded coercion, burden to prove same shifts ondefendants – Uncorroborated testimony of defendant is notenough to come to conclusion that agreement had been enteredinto because of coercion – Discrepancy in evidence regardingplace of execution of agreement is not very much relevantwhen signature is admitted by defendant who disputes suchagreement. https://hcservices.ecourts.gov.in/hcservices/ Specific Relief Act, 1963 (47 of 1963), Section 19 and 20 –Plaintiff sought specific performance of agreement andarrayed vendor and subsequent purchaser of such property andsought alternative relief of damages against vendor –Subsequent purchaser had purchased property without noticeof prior agreement and plaintiff could recover amounts paidto vendor and specific performance could not be granted".16.He also placed reliance on (2000) 2 SCC 428 Ram Awadh (Dead)by Lrs. And others V. Achhaibar Dubey and another, wherein it isobserved as follows:"Specific Relief Act, 1963 – S.16(c) – Suit for specificperformance of agreement to sell property – Plea thatplaintiff was never ready and willing to perform his part ofthe agreement – Held, can be raised also by subsequentpurchaser of the property or his LRs who were defendants inthe suit".17.The learned counsel for the second respondent/second defendantcited 2000(I) CTC 484 Nalluswamy Reddiar V. Marammal and 5 others,whereunder it is laid down as follows:"Specific Relief Act, 1963 – Specific Performance ofAgreement of Sale – Enforceability as against subsequentTransferee without notice in good faith for consideration –Specific Performance of Agreement of Sale cannot be enforcedagainst subsequent Transferee unless he had Notice of priorAgreement – Plaintiff did not plead that Transferee hadknowledge of alleged Sale Agreement reached betweenPlaintiff and Vendor – No actual notice or constructiveNotice about Agreement – Transfer was made for valuableconsideration – Evidence regarding notice knowledge ofAgreement on part of Transferee no cannot be looked into forwant of plea – Specific performance of Agreement cannot beenforced against such Transferee in good faith forconsideration without notice of earlier Agreement.Law of Pleadings – Absence of Plea – Permissibility ofevidence in absence of any pleading regarding prior noticeof Sale Agreement to Purchaser – Evidence cannot be let into prove knowledge of earlier agreement to Transferee inabsence of plea regarding notice".18.Further, he pressed into service the decision 2000-2-L.W. Page15 and 16 M.M.S.Investments through its Managing Director and 4 othersV. V.Veerappan and 8 others, wherein it is held thus:"Specific Performance, Specific Relief Act (1963), Ss.16 (b)and © and 20, T.P.Act, Ss.52, 54, and C.P.C., O.1, R.10, and https://hcservices.ecourts.gov.in/hcservices/ O.22, R.10(1) – Right of Subsequent Purchaser of theproperty without notice of earlier agreement, to contest thesuit – No legal bar to raise issues other than that he is abona fide purchaser without notice.Plea of collusion on the part of the vendor –Impleading of such person as party in the suit –Permissibility – Bar of lis pendens -Applicability of theplea to cases where sale of property takes place prior tosuit and cases where the sale takes place subsequent to thesuit.Mere agreement of sale does not create any rights overproperty under S.54, T.P. Act – Distinction between IndianLaw and English Law – powers of Equity court in itsdiscretion – Plea of readiness and willingness on the partof purchaser, as agreement holder being personal to him,considerations as regards subsequent purchaser raising otherissues.Order impleading subsequent purchaser as party, upheld– Impleading under O.1, R.10 (not under O.22, R.10, whetheraffects the circumstances as regards raising of pleas.C.P.C., O.1, R.10, and O.22, R.10-Order Impleadingsubsequent purchaser as party, upheld – Impleading underO.1, R.10 (not under O.22, R.10, whether affects thecircumstances as regards raising of pleas – See SpecificPerformance, Specific Relief Act, Ss.16(b), (c),20 etc.C.P.C., O.22, R.10 – See O.1, R.10, SpecificPerformance, Specific Relief Act, Ss.16(b)(c), 20 etc.Transfer of Property Act, Ss.52,54,40-Lis Pendens – SeeSpecific Performance, Specific Relief Act, Ss.16(b)(c)20etc.T.P.Act, S.54-Rights of agreement holder over property– See Ss.52,40, and Specific Performance, Specific ReliefAct, Ss.16(b)(c), 20 etc.,".19.P.W.1 the appellant/plaintiff in his evidence has deposed thatthe first respondent/first defendant informed him that he will sellthe suit property viz., flat which belongs to him for a sum ofRs.12,00,000/- and the first respondent/first defendant afterdiscussions, has agreed to sell for a sum of Rs.10,05,000/- and thatin January 1996 he made the first payment of Rs.2,00,000/- and afurther sum of Rs.2,00,000/- each was paid in March and May 1998 andthat he paid Rs.2,05,000/- in July 1996 and that the firstrespondent/first defendant informed him that he will execute anagreement and the said agreement Ex.P.1 was executed on 10.07.1996,granting nine months time and that the balance of sale considerationwill have to be paid within the specified time.20.It is the further evidence of P.W.1, (appellant/ plaintiff)that after the dismissal of injunction application and also after https://hcservices.ecourts.gov.in/hcservices/ coming to know from the counter that the first respondent/firstdefendant has sold the suit property on 31.01.1997, he has come toknow from the Registrar's Office that the suit property has been soldfor Rs.4,60,000/- by the first respondent/first defendant which is farbelow the market value of Rs.10,50,000/- and that the guideline valueof the property has been more than Rs.10,00,000/-, which he has cometo know from the Registrar's Office and that the suit property as ontoday continues to be with the first respondent/first defendant andthat the first respondent/first defendant has sold the property for ameagre consideration and he has not actually sold the same and thatthe second respondent/second defendant has known Ex.P.1 sale agreementdated 10.07.1996 entered into between him and the firstrespondent/first defendant and since the first respondent/firstdefendant has sold the property to the second respondent/seconddefendant during the pendency of Ex.P.1-Agreement and inasmuch as thethe second respondent/second defendant has purchased the property withthe knowledge of subsisting agreement, he is entitled to the relief ofspecific performance decree.21.D.W.1-G.Vaidayanathan, (uncle of the second respondent/seconddefendant) has deposed that he is a Chartered Accountant by professionand he has been authorised to tender evidence on behalf of the secondrespondent/second defendant and that he has negotiated the saletransaction between the first respondent and secondrespondent/defendants from the beginning till the end in respect ofthe suit property, on behalf of the second defendant and Ex.D.1 is theSpecial Power of Attorney given by the second respondent/seconddefendant to him and that he has met the first respondent/firstdefendant in connection with the negotiation in regard to the suitproperty two days after the advertisement in "The Hindu" daily at theplace of suit property itself and the second respondent/seconddefendant at no point of time has personally met the firstrespondent/first defendant in connection with the negotiationpertaining to the suit transaction and on behalf of the secondrespondent/second defendant, he concluded the transaction.22.The further evidence of D.W.2-Vaidayanathan is to the effectthat a sum of Rs.4.94 lakhs (approximately) has been agreed towardssale price, and the same has been paid by means of two bank demanddrafts and that the said sum is the market price and since theguideline value of the property has been found to be at Rs.10,00,000/-the stamp duty has been paid, as per the guideline value,notwithstanding the actual sale price and that the secondrespondent/second defendant is a bona fide purchaser of the suitproperty as per Ex.D.4 sale deed and that he has not known the firstrespondent/first defendant prior to the said transaction.23.It is not in dispute that the appellant/plaintiff and thefirst respondent/first defendant are employed in the State Express https://hcservices.ecourts.gov.in/hcservices/ Transport Corporation and that the first respondent/first defendant isthe Superior Officer of the appellant/plaintiff as Deputy Manager.24.It is useful to refer to the relevant portion of the recitalsin Ex.P.1-Sale Agreement dated 10.07.1996 entered into between thefirst respondent/first defendant (first party) and theappellant/plaintiff (second party), which runs as follows:"The first party is the absolute owner of the flat,described specifically in schedule hereunder, which he haspurchased from his vendors, as per sale deed dated13.05.1994 and Registered as document No.2071 of 94 in theDistrict Registrar Office, Madras South.The first party proposed to sell the flat, scheduledherein, for a price of Rs.10,05,000/- (Rs.Ten Lakhs andFive thousand only) and the second party accepted the saidproposal and agreed to purchase the same for the saidprice.The second party pays now a sum of Rs.8,05,000/-(Rupees Eight Lakhs and Five thousand only) by cash, aspart payment of the above said sale consideration and thefirst party having received the said amount, acknowledgesthe same.The second party agrees to pay the remaining balance ofsale consideration ie Rs.2,00,000/- (Rupees Two Lakhs only)within a period of nine months from to-day and get the saledeed, in respect of the scheduled property, executed by thefirst party, in his favour.".....25.When the Ex.P.1-Sale Agreement dated 10.07.1996 refers to asum of Rs.8,05,000/- now being paid by the appellant/plaintiff, theoral evidence of appellant/ plaintiff viz., P.W.1 is that he has paidRs.2,00,000/- in January 1996, another sum of Rs.2,00,000/- each paidin March and May 1996 and another sum of Rs.2,05,000/- paid in July1996 is contrary to the recitals found in Ex.P.1-Sale Agreement dated10.07.1996, in our considered opinion.26.It is not out of place to make a mention that in para 5 of thepaint, the appellant/plaintiff has averred that "in pursuance of thisagreement, the plaintiff paid Rs.8,05,000/- (Rupees Eight Lakhs andFive thousand only) to the defendant as part of the above said saletransaction". Therefore, it is quite evident that the oral testimonyof P.W.1 viz., appellant/plaintiff in regard to the payments made byhim is clearly to the exclusion of the tenure of Ex.P.1-Agreement ofsale dated 10.07.1996, as per Section 91 of the Indian Evidence Act. 27.As a matter of fact, the litigant when he approaches the Courtnot with clean hands, then he is certainly not entitled to claim thebenefit of equitable relief of specific performance. Equally, there https://hcservices.ecourts.gov.in/hcservices/ cannot be any dispute that in a suit for specific performance ofagreement of sale, plaintiff is the Dominus litus. Normally, in ourlaw it is the "Purchaser Beware" and prior to the entering oftransaction, it is for the prospective purchaser to ensure that theproperty in issue is free from encumbrance, any cloud or shroud, etc.and it is his duty to check the parental and other antecedentdocuments so as to satisfy the rudimentary requirements of law. Infact, the appellant/ plaintiff has to establish his case before Courtof law in a civil remedy notwithstanding the fact that the firstrespondent/first defendant has not filed the written statement and setexparte in the suit, in the case on hand. Moreover, the burden ofproving the case rests on the appellant/plaintiff when the firstrespondent/ first defendant has filed a counter to the ApplicationNo.95 of 1997 to the effect that Ex.P.1-Agreement of Sale dated10.07.1996 is a cooked up document by the appellant/ plaintiff byutilising the blank stamp papers, wherein the signature of the firstrespondent/first defendant finds a place.28.As far as the present case is concerned, neither the secondrespondent/second defendant nor the first respondent /first defendanthas appeared before Court and tendered evidence only D.W.1-Vaidayanathan (uncle of the defendant) has been examined, on the basisthat he negotiated the sale transaction on behalf of secondrespondent/second defendant, between the first respondent/firstdefendant and second respondent/second defendant in regard to the suitproperty.29.The learned counsel for the appellant/plaintiff has advancedan argument that D.W.1-Vaidayanathan is only the Power of Attorney ofthe second respondent/second defendant and when it is the specificcase of the appellant/plaintiff that the first respondent/firstdefendant has executed Ex.P.1-Agreement dated 10.07.1996 it is uptothe first respondent/first defendant to contest the case and when thefirst respondent/first defendant has remained exparte in the suit, itdoes not lie in the mouth of the second respondent/second defendant toraise a plea of validity of Ex.P.1-Agreement.30.It is significant to cite the decision AIR 2004 Madhya Pradesh58 Smt.Shanti Devi Agarwal V. H.Lulla, whereby it is held as follows:"Civil P.C. (5 of 1908), O.3, R.2;O.18, R.4 – Evidence Act(1 of 1872), Ss.118, 3 – M.P. Accommodation Control Act (41of 1961), S.23-A(a) – Eviction – Ground of bona fiderequirement – Recording of evidence by recognised agent –Plaintiff, being an elderly lady of 78 years and havinghealth problem, appointed her son as power of attorney tocontest case – Old age and bad health of plaintiff would begood ground for her son, being power of attorney holder, totender evidence on her behalf – Affidavit of plaintiff's son https://hcservices.ecourts.gov.in/hcservices/ is, therefore, to be treated as examination – in chief ofplaintiff – That apart, bona fide requirement being withreference to family, can be proved by any member of family –Plaintiff's son being power of attorney holder virtuallysteps into her shoes, to prove ground".31.In AIR 1971 Rajesthan at 240 Gulab Devi V. Bhagwan Sahai, itis laid down as follows:"Civil P.C. (1908), Order 18, Rule 1 – Court cannot refusethe plaintiff to examine a person holding power of attorneyfor plaintiff and insist that plaintiff himself must recordhis own statement in support of his claim in the suit.(1866) 6 Suth WR 231 & (1910) 1 KB 327 & (1957) 2 All ER155, Ref".32.It is not out of place to refer to the decision AIR 2004Andhra Pradesh 309 and 310 S.Padmavathamma V. S.Sudha Rani and others,wherein it is observed as follows:"Civil P.C. (5 of 1908), O.16, R.1 – Examining General Powerof Attorney as a witness on behalf of Plaintiff –Application for – General Power of Attorney holder canappear as a witness only in his personal capacity – Hecannot appear as witness on behalf of plaintiff in capacityof plaintiff as he cannot speak about facts which are withinpersonal knowledge of party".33.In regard to the Power of Attorney holder of a party beexamined as a witness, in AIR 1995 Gujarat 151 at 152 Divaliben V.Mavjibhai Vasanjibhai Ahir, it is held as follows:"Civil P.C. (5 of 1908), O.18, Rr.2, 4 – Examination ofwitnesses – Power of attorney holder of a party – Can beexamined as witness – No procedural defect in suchexamination – Interference in revision not proper".In view of the above, since D.W.1-Vaidayanathan (Power Holder) hasnegotiated the sale transaction between the first respondent/firstdefendant and second respondent/ second defendant from the beginningas spoken to by him, there is no bar in law for him to be examined aswitness as far as the present case is concerned, in our consideredopinion.34.It cannot be lost sight of that the plea of the secondrespondent/second defendant is one of bona fide purchaser for valuewithout notice or knowledge of the original contract. In fact, Section19(b) of the Specific Relief Act, 1963 speaks of "Relief againstparties and persons claiming under them by subsequent title". As a https://hcservices.ecourts.gov.in/hcservices/ matter of fact, Section 19(b) protects the bona fide purchaser in goodfaith for value without notice or original contract, which is in thenature of exception to the general rule. Therefore, onus of proof ofgood faith is on the purchaser who takes the place that he is aninnocent purchaser. Of course, good faith is a question of fact to beconsidered and decided on the facts on each case. In short, theinitial burden of establishing the defence lies on the subsequentpurchaser. Before that, it is to be noted that in the plaint theappellant/plaintiff has not whispered that the secondrespondent/second defendant had knowledge or notice of the prior saleagreement. To put it differently, there is absence of pleading to theabove effect notwithstanding the fact that the appellant/plaintiff hasknown that the second respondent/second defendant has purchased theproperty.35.It is significant to make a mention that the firstrespondent/first defendant in the counter (presented in Court on31.3.1997) to Application No.95 of 1997 has admitted that theappellant/plaintiff and himself are working in the same department andthat from the number of non-Judicial Stamp Papers and the Value ofStamp Papers in which the alleged sale agreement is engrossed that thesale agreement is a cooked up one cooked up one, prepared by theappellant/plaintiff to deprive him of the property and that thealleged sale agreement has been executed on three stamp papers for thevalue of Rs.30/- each containing the value of Rs.10/- and as perSchedule 2(4) of the Indian Stamp Act, 1899, the Stamp duty fixed forunregistered agreement is Rs.10/- only, but in the said alleged saleagreement, the stamp papers worth Rs.30/- are used, which manipulationestablishes that he has not executed any such sale agreement. 36.Moreover, the first respondent/first defendant in the saidcounter has also taken a categorical stand that it is true that heused to raise loans through the appellant/ plaintiff and repay thesame through him, for which the appellant/plaintiff used to obtain hissignatures on blank non-Judicial Stamp Papers and Revenue Stamps aswell as white papers and believing him, he used to issue such blankpapers affixing his signatures and that there is no evidence to provethat the appellant/plaintiff has paid a sum of Rs.8,05,000/- (RupeesEight Lakhs and Five thousand only) by cash in lumpsum and that he hasalready disposed of his property in order to discharge his debts.37.A perusal of Ex.P.1-Agreement dated 10.07.1996 indicates thatthere are three stamp papers of value Rs.10/- each. There are twowitnesses mentioned in the last page of Ex.P.1-Sale Agreement. No onehas been examined as witness on the side of appellant/plaintiff in thecase. In fact, the recitals found in Ex.P.1-Sale Agreement are intyped form. No doubt, in Ex.P.1-Agreement dated 10.07.1996 thesignature of the first respondent/first defendant finds a place. Eventhen, it is the burden of the appellant/plaintiff to prove that https://hcservices.ecourts.gov.in/hcservices/ Ex.P.1-Agreement is a true and valid one in the eye of law. The factthat no one witness, as seen in Ex.P.1-Agreement is examined in thecase is a circumstance which certainly goes against theappellant/plaintiff. In this connection, it is useful to refer toEx.P.4, Lawyer Notice dated 06.07.1998 issued by theappellant/plaintiff's counsel addressed to the firstrespondent/defendant, wherein it is among other things stated that thefirst respondent/first defendant has approached theappellant/plaintiff for a compromise offering to return a sum ofRs.9,00,000/- (Rupees nine lakhs only) by issuing the nine cheques andout of these nine cheques, two cheques serial Nos.8 and 9 forRs.2,00,000/- are dated 15.08.1998 and 30.08.1998 and that theappellant/plaintiff is not interested in getting back his amount givenas part sale consideration in pursuance of the agreement dated10.07.1996 and that the cheques were received in order to establishthe appellant/plaintiff's case better in C.S.No.80 of 1997. 38.For Ex.P.4, the first respondent/first defendant has given areply through his lawyer stating that he has not issued any chequestowards settlement of the case and that certain blank cheques havinghis signatures kept in his Office table drawer were suddenly missingand a police complaint was lodged and that the story of the missingcheque leaves has come to light and therefore, it is easy for thepolice to take appropriate action against the culprit to trace themissing cheques. In Ex.P.3(series) the cheque in serial No.7 bearingNo.358043 is dated as 30.07.1998 but in Ex.P.4, notice the same ismentioned as dated 15.06.1998. Thus, there is a discrepancy in regardto the claim of appellant/plaintiff. At this juncture, one cannotbrush aside the fact that Ex.P.4-Notice was issued by theappellant/plaintiff's counsel on 06.07.1998. Therefore, it is quiteobvious that Ex.P.3(series) cheques would not have come into existenceeither for a compromise or in regard to the part sale consideration,has contended by the appellant/plaintiff.39.As per Section 19(b) of the Specific Relief Act, 1963, aspecific performance of contract can be enforced not only againsteither party thereto but also against any other person claiming underhim by a title arising subsequently to the contract except atransferee for value who has paid his money in good faith and withoutnotice of original contract. Notwithstanding the fact, the firstrespondent/first defendant has remained exparte in the suit, thesecond respondent/second defendant in law as subsequent purchaser isentitled to impeach the valid nature of Ex.P.1-Agreement dated10.07.1996.40.Ex.D.4 is the Xerox copy of Sale Deed dated 30.01.1997executed by the first respondent/first defendant in favour of thesecond respondent/second defendant in respect of the suit property. InEx.D.4 it is mentioned as follows: "Whereas the vendor has agreed to https://hcservices.ecourts.gov.in/hcservices/ sell his one-eighth interest of undivided share in Schedule "A"property and the flat mentioned in the Schedule "B" for aconsideration of Rs.4,60,000/- (Rupees Four Lakhs Sixty thousand only)and the Purchaser has agreed to purchase the aforesaid interest morefully described in Schedule "C" for the consideration ofRs.4,60,000.00 (Rupees Four Lakhs sixty thousand only) etc." The saidsale deed refers to the Pay Order dated 27.11.1996 for Rs.1,00,000/-and another Pay Order dated 10.01.1997 for Rs.3,60,000/-, the receiptof which a sum of Rs.4,60,000/-, the vendor acknowledges and admit thesame. In fact, Ex.D.4-Sale Deed dated 30.01.2007, Clause 9 enjoinsthat the purchaser has agreed to purchase the "aforesaid Schedule 'C'property" subject to his accepting the onerous responsibility to evictthe said tenant and obtain a vacant possession of the said property.Therefore, it is clear that the second respondent/second defendant haspurchased the property subject to the covenant of vacating the tenantfrom the property and inasmuch as Ex.D.4-Sale Deed dated 30.01.1997 isa registered one, by no stretch of imagination, it can be construedthat the said document is a nominal and sham one, in our consideredopinion.41.It is significant to point out that as per Section 54 of theTransfer of Property Act to constitute a sale 1) a contract totransfer the ownership of property and 2)transfer of ownershipfollowed by delivery of property are very much required. The verydefinition of the sale shows that "sale is a transfer of property forconsideration". Merely because a property worth several thousands ofrupees was sold away for a few hundred rupees by a person for his ownreasons, the same cannot be challenged on the premise that the saleconsideration is inadequate or on the ground of under valuation ofproperty. As a matter of fact, if the sale consideration has been heldto be low, it does not render the contract of sale as void or illegal.It is to be noted that the stamp duty of Rs.1.30 lakhs for registeringEx.D.4-Sale Deed dated 30.01.1997 was paid by the secondrespondent/second defendant. It is also the evidence of D.W.1-Vaidayanathan (Power of Attorney of second respondent) that the secondrespondent/second defendant paid Rs.3,00,000/- for evicting thetenant. Moreover, merely because the second respondent/seconddefendant has paid the stamp duty of Rs.1.30 lakhs for the purpose ofregistration of Ex.D.4-Sale Deed dated 30.01.1997, it cannot be heldthat the suit property has been sold for a song. After all in sale,the vendor or seller barters away his property movable or immovablefor valuable consideration in cash or in kind paid or payable by thebuyer.42.In the instant case on hand, the appellant/plaintiff has notestablished that Ex.P.1-Agreement dated 10.07.1997 is a true and validagreement. The second respondent/second defendant is only a bona fidepurchaser for value, without notice of Ex.P.1-Agreement. It is wellsettled principle in law that the grant of specific relief is an https://hcservices.ecourts.gov.in/hcservices/ equitable remedy. As a matter of fact, there is no plea taken by theappellant/plaintiff in the plaint that the second respondent /seconddefendant had knowledge of the original agreement and in the absenceof such pleading, no amount of evidence can be looked into by a Courtof law, in our considered opinion.43.In the backdrop of our detailed discussions mentioned supraand on examination and consideration of available material evidence onrecord and considering the entire facts and circumstances of the casein an integrated manner, viewing it from any angle, we come to theconclusion that the appellant/plaintiff is not entitled to the reliefof specific performance as per Ex.P.1-Sale Agreement dated 10.07.1996and in that view, the OSA fails and the same is hereby dismissed, inthe interest of justice. Having regard to the facts and circumstancesof the case, the parties are directed to bear their own costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsglToThe Sub Assistant Registrar,Original Side, High Court, Madras.+1cc to Mr.G.Ethirajulu, Advocate Sr 11123+1cc to Mr.C.Ramesh, Advocate Sr 10863JRG (CO)km/6.3.O.S.A.No.90 of 2002