JUDGMENT P.K. Jain, J.
1. This second appeal has been filed by one of the defendants who purchased part of the suit property after an agreement to sell was executed by defendant No. 1 Brahm Prakash who died during the pendency of the suit and respondent Nos. 2 to 4 were substituted as heir and legal representatives.
2. Respondent No. 1. Smt. Sarita Rani in her suit alleged that she had agreed to purchase the suit property for a sum of Rs. 40,000 through registered agreement dated 26.7.1991 executed by Brahm Prakash. A sum of Rs. 35,000 was advanced at the time of execution of the agreement and balance of Rs. 5,000 was to be paid at the time of registration of sale deed. The property consisted of 4 shops as described at the end of the plaint. She alleged that she was ready and willing to get the sale deed executed after performing her part of contract and was still ready and willing to get the sale deed executed. The defendant No. 1, however, one or the other pretext has been postponing the execution of the sale deed. She had served notice dated 17.8.1991 through a lawyer but the defendant No. 1 did not execute the sale deed. Another notice dated 27.9.1991 was served but without any result. Defendant No. 2 (the present appellant before this Court) having notice of the agreement to sell purchased part of the suit property. The sale deed executed in favour of defendant No. 2 was not intended to be acted upon and was a fictitious document. The prayer made by the plaintiff was that by a decree of specific performance ; the defendants be directed to execute the sale deed after obtaining balance of Rs. 5,000 within the time prescribed by the Court failing which the sale deed be got executed through the Court. In the alternative, the relief claimed was that in case the Court found that it was not possible to get the sale deed executed, a decree of Rs. 40,000 along with interest be passed against the defendants.
3. The defendants contested the suit on various grounds. The main ground of defence of the appellant was that he was a bona fide purchaser for value without notice of agreement to sell.
4. On the pleadings of the parties, the trial court framed several issues. Issue No. 6 was to the following effect : "Whether defendant No. 2 was bona fide purchaser for value of the suit property".
5. The trial court on this issue observed that the sale deed in favour of the defendant No. 2 was got registered on 12.8.1991 whereas the original agreement to sell was executed on 26.7.1991 which was much before execution of the sale deed and it does not appear to be correct that at the time of execution of the sale deed Brahm Prakash [defendant No. 1) had no notice that he had executed any agreement to sell in favour of Smt. Sarita Rani, part of which he was selling to defendant No. 2. It was further observed by the Court below that it can also not be believed that defendant No. 2 may not be knowing about the execution of agreement to sell. It has further been observed by the Court below that defendant No. 2 had not entered into the witness box. The finding of the trial court was that being a subsequent purchaser, defendant No. 2 cannot be held to be a bona fide purchaser for value. The trial court, therefore, decreed the suit in its entirety.
6. The lower appellate court framed following three points for determination and disposal of the appeal :
"1. Whether Brahm Prakash agreed to sell the property to the plaintiff for a consideration of Rs. 40,000 and executed an agreement to sell on 26.7.1991 and received Rs. 35,000 as earnest money?
2. Whether the plaintiff was ready and willing to perform her part of obligation?
3. Whether the defendant No. 2 appellant was a bona fide purchaser for valuable consideration and without notice?"
7. Point No. 3 is relevant for the present appeal. Observations of the lower appellate court in regard to this point were that "in order to invoke the plea of the bona fide purchaser. It is obligatory on the part of such a person to prove this issue. Obviously the onus to prove this issue lies on defendant No. 2/appellant. The appellant has neither produced any oral or documentary evidence in this regard except that of the sale deed dated 12.8.1991 alleged to have been executed by Brahm Prakash in his favour. What is strange in this case is that even Deepak Raj, the appellant, has not produced himself in the Court to prove his contention". The lower appellate court, therefore, concurred with the findings of the trial court and consequently, dismissed the appeal.
8. Sri P. K. Jain, learned counsel for the appellant and Sri B. D. Mandhyan, learned counsel for the plaintiff-respondent No. 1 have been heard at length at the admission stage and with the consent of the learned counsel for the parties, the appeal is being finally disposed of at the admission stage itself.
9. The submissions of the learned counsel for the appellant are two fold viz., the plaintiff has prayed for an alternative relief for refund of the amount advanced by her to defendant No. 1, sale deed in favour of the appellant has already been executed. In order to avoid complication and to do equity between the parties so far as in relation to the property purchased by the appellant, alternative relief ought to have been granted instead of relief for specific performance.
10. Learned counsel refers to Section 20(2)(b) of the Specific Relief Act, 1963 which reads as follows :
"20 (2) (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff."
The second submission of the learned counsel for the appellant is that even though the plaintiff has alleged in the plaint that the sale deed executed in favour of defendant No. 2 was with notice of agreement to sell and was a document not to be acted upon, yet the plaintiff has not adduced any evidence in this regard. The courts below should not have held that the appellant was not a bona fide purchaser.
11. Learned counsel for the plaintiff-respondent by referring to the provisions of Section 19(b) of the Specific Relief Act argued that the burden of proving that defendant No. 2 was a transferee for value who has paid the money in good faith and without notice of agreement was upon defendant No. 2 and since he had not entered into the witness box, there being no evidence to the effect that he was a bona fide purchaser for value and without notice of earlier agreement to sell, the concurrent findings arrived at by the courts below cannot be assailed.
12. Having heard learned counsel for the parties, following substantial questions of law are framed :
"1. Whether the provisions of Section 19(b) and Section 20(2)(b) of the Specific Relief Act should be read together and harmoniously while granting decree for specific performance of the contract?
2. Whether non-consideration of the plaintiffs evidence on the question of defendant No. 2 not being a bona fide purchaser and having notice of the agreement to sell was vitiated finding on issue No. 6?"
Question No. 2 :
13. The material averments made by the plaintiff in her pleadings have already been stated above. It is not disputed that in her statement as P.W. 1, the plaintiff did not state on oath that defendant No. 2 had notice of the agreement to sell and that defendant No. 2 was not a bona fide purchaser for value and further that the sale deed in favour of defendant No. 2 was not intended to be acted upon. On the other hand, it is also undisputed that defendant No. 2, the present appellant did not enter into the witness box to state that he was a bona fide purchaser for value having no notice of earlier agreement to sell. It has come in evidence that the agreement was executed on 26.7.1991 whereas the sale deed in favour of defendant No. 2 (the present appellant] was executed on 12.8.1991. Perusal of the Judgments of the Courts below indicate that the Courts below did not consider the fact that the plaintiff-respondent in her deposition did not state a word about the defendant No. 2 not being a bona fide purchaser for value and having notice of the earlier agreement to sell. The sale deed in favour of the defendant-appellant was executed only within 18 days of execution of the agreement to sell. This aspect has also not been considered by the lower appellate court while arriving at the conclusion if the defendant-appellant was a bona fide purchaser for value.
14. Learned counsel for the respondents submits that the burden of proving that the defendant-appellant was a bona fide purchaser for value and without notice was upon the appellant. In support of his submission, learned counsel for the appellant has relied upon a decision of the Apex Court rendered in Jagan Nath v. Jagdish Rai and others, JT 1998 (3) SC 551. The Hon'ble Supreme Court on page 559 has held as follows :
"It is well-settled that the initial burden to show that the subsequent purchaser of suit property covered by earlier suit agreement was a bona fide purchaser for value without notice of the suit agreement squarely rests on the shoulders of such subsequent transferee."
15. In view of the above, learned counsel for the plaintiff-respondent vehemently argued that the burden of proving that the appellant was a bona fide purchaser for value without notice was upon the defendant-appellant which he has failed to discharge. Learned counsel also refers to the provisions of Section 19(b) of the Specific Relief Act which provides "that specific performance of the contract may be enforced against .....(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid money in good faith and without notice of the original contract". It is submitted that since no evidence has been adduced by the defendant-appellant, he was not entitled to argue that he was a bona Jide purchaser for value and without notice was upon the defendant-appellant.
16. On going through the decision in Jagan Nath v. Jagdish Rai and others, relied upon by the learned counsel for the plaintiff-respondent, it would appear that on page 560 the Hon'ble Supreme Court held as follows :
"However, it has to be kept in view that once evidence is led by both the sides, the question of initial onus of proof pales into insignificance and the Court will have to decide the question in controversy in the light of the evidence on record. Even this aspect of the matter is well-settled by a decision of Privy Council in the case of Mohammad Aslam Khan and others v. Feroz Shah, AIR 1932 PC 228, wherein it was observed with reference to the very same question arising under Section 27(b) of the earlier Specific Relief Act of 1877 that it is not necessary to enter upon a discussion of the question of onus where the whole of the evidence in the case is before the Court and it has no difficulty in arriving at a conclusion in respect thereof."
17. In view of the aforesaid law laid down by the Hon'ble Supreme Court, the question whether transferee had notice of previous agreement to sell and the subsequent sale deed was a document not intended to be acted upon, has to be arrived at on consideration of evidence of both the parties. The Courts below have not considered the material evidence of the plaintiff-respondent on this issue and therefore, in my view, the finding of the Courts below in this regard stands vitiated. This question is decided in favour of the appellant.
Question No. 1 :
18. Learned counsel for the appellant has submitted that the plaintiff-respondent has prayed for an alternative relief for refund of earnest amount with interest. The facts is that soon after execution of the agreement to sell, a sale deed in respect of part of the agreement property has been executed in favour of defendant No. 2 and that agreement was very much on record. It is next submitted that in view of the provisions of Section 20(2)(b) of the Specific Relief Act as reproduced above, the decree for specific performance in respect of part of the property purchased by the defendant-appellant should not have been granted. At least, the Courts below should have adverted to the question of hardship that may be caused to the defendant-appellant. The Courts below have not adverted to such question and, therefore, the judgment of the Courts below on this point is vitiated. Learned counsel has also relied upon a decision of the Supreme Court rendered in Kanshi Ram v. Om Prakash Jawal and others, JT 1996 (4) SC 733. The Apex Court held in para 5 that :
".....It is true that the rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. But it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretion to be exercised on sound principles. When the Court gets into equity jurisdiction. It would be guided by justice, equity, good conscience and fairness to both the parties. Considered from this perspective, In view of the fact that the respondent himself had claimed alternative relief for damages we think that the Courts would have been well justified in granting alternative decree for damages, instead of ordering specific performance which would be unrealistic and unfair. Under these circumstances, we hold that the decree for specific performance is inequitable and unjust to the appellant."
19. It is further submitted that the provisions of Sections 19(b) and 20(2)(b) of the Specific Relief Act should be construed harmoniously and the Courts below having failed to consider the provisions of Section 20(2)(b) of the Specific Relief Act, has committed error of law. In my view, there is force in the submission of the learned counsel for the appellant. The Courts below have not considered the effect of provisions of Section 20(2)(b) of the Specific Relief Act and equity in passing the decree for specific performance so far as it relates to the property purchased by the defendant-appellant.
20. In view of the discussions made above, the appeal is allowed. The judgment and decree of the lower appellate court so far it relates to passing a decree for specific performance in respect of property purchased by the defendant-appellant, the same is set aside and the case is remanded to the lower appellate court for decision afresh in the light of the discussions made above.
The parties to bear their own costs of this appeal.