Mattulal Vs. Radhe Lal reported in AIR 1974 SC 1596

and

Laxman Thamappa Kotgiri Vs. G.M. Central Railway & ors reported in (2007) 4 SCC 596

Thus, applying the ratio of the judgement of the three Judges Bench of the Supreme Court in the case of Hamda Ammal Vs. Abadiappa Pathar (supra), I find that in the present case, though the deed of conveyance by the appellant no. 1 in favour of the predecessor of the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4 was executed before the respondent filed the suit for specific performance and the registration of the said conveyance was completed after filing of the said suit, by virtue of the provisions in Section 47 of the Registration Act 1908, the transfer of a portion of the suit properties by the appellant no.1 to the predecessor of the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4 was not a transfer during pendency of the suit, nor hit by the principle of lis pendens under section 52 of the Transfer of Property Act, 1882. Therefore , the submission made on behalf of the respondent that transfer of a portion of the said properties by the appellant no. 1 to that said predecessor of the appellant nos. 2(a) to 2(d) and the appellant nos. 3, and 4 was hit by the principle of lis pendens cannot be accepted. Consequently, in view of the provisions in sub-Section (1) of Section 21 of the Limitation Act, 1963 the impleadment of the predecessor of the appellant Nos. 2(a) to 2(d) and the appellant Nos. 3 and 4, being the subsequent purchasers, as added defendants in the said suit for specific performance was barred by the law of limitation. Accordingly, the aforementioned first substantial question of law framed in the present appeal is answered in the affirmative. Now, by the judgement dated February 5, 1994 in Title Appeal No. 138 of 1989 the learned first appellate Court had held that the said subsequent purchasers were necessary parties to said suit and in their absence the suit was bad for non joinder of necessary parties. Therefore, since I have already held that impleadment of the subsequent purchasers as the defendant in the suit was barred by the laws of limitation, the entire suit filed the respondent fails. This view is fortified by the decision of the Five Judge Bench of the Supreme Court in the case of

Kanakarathanammal Vs. V.S. Loganatha Mudaliar & another reported in AIR 1965 SC 271

So far as the third substantial question of law, with regard to the objection raised on behalf of the respondent that in view of sub-section (2) of section 105 of the Code the appellants are not entitled to challenge the findings of the learned courts below that the respondent was ready and willing to perform the said agreement for sale, considering the facts of the case I find substance in the argument advanced by Mr. Ghosh. In view of the said decision of the Supreme Court in the case of Ram Awadh Vs. Achhaibar Dubei (supra), it is well settled law that even a subsequent purchaser in a suit for specific performance is entitled to put up a defence that the plaintiff was not ready and willing to perform the agreement. Therefore, the subsequent purchaser as the defendant is also entitled to challenge a decree for specific performance on the ground that the finding with regard to the readiness and willingness of the plaintiff to perform the agreement for sale which vitiated by perversity or an error of law. As per sub-Section (2) of Section 105 of the Code, where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. In the present case, since the appellant Nos. 2(a) to 2(d) and the appellant Nos. 3 and 4, were not parties to the said Title Appeal No. 138 of 1989; they had no scope to challenge the judgment and order of remand dated February 5, 1994 passed by the learned Additional District Judge. The appellant Nos. 2(a) to 2(d) and the appellant Nos. 3 and 4 not being parties to the said Title Appeal No. 138 of 1989, are not bound by the findings of the learned Additional District Judge in the said judgment and order of remand dated February 5, 1994 and sub-Section (2) of Section 105 of the Code does not stand in their way to assail the findings of the learned Courts below that the respondent was ready and willing to perform the said agreement, on the ground of being vitiated by perversity. Thus, the decisions of the Supreme Court in the cases of Nein Singh (Supra) and Sitaram Goel (supra) cited on behalf of the respondent cannot be applied in the present case to prevent the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4 to challenge the findings of the learned Courts below that the respondent was ready and willing to perform the said agreement for sale.

In the present case, the subsequent purchasers, as the added defendants filed there written statement in the suit and they raised a defence that the original defendant has already claimed that the plaintiff was not ready and willing to perform the said agreement for sale. After the suit was remanded to the learned trial Judge the appellant no. 1 disclosed, proved and exhibited the letter dated June 20, 1985 as Exbt.- “B”. Even in the Memorandum of Appeal filed in the appeal before the lower appellate Court, in Title Appeal no. 04 of 2004, the subsequent purchasers, as the appellants assailed the judgment and decree dated February 4, 2004 on the ground that the learned trial Judge did not consider the said letter dated June 20, 1985 (Exbt. B). In the said letter dated June 20, 1985 the respondent ex-facie admitted his financial incapability to pay the balance consideration money to the appellant no. 1 and stated that appellant no. 1 may sell his share in the said property, to any third party. From the various letters of the appellant no. 1 to the respondent written on various dates of 1985, 1986, 1987 and 1988 (which were marked as “Exbt. 2 series”) it is also evident that in spite of repeated demands made by the appellant no. 1, the respondent neither replied to the said letters, nor was he able to pay the balance consideration to the appellant no. 1. Further, in his examination-in-chief the appellant no. 1, as DW1 categorically stated that the respondent was not ready and willing to pay the balance consideration, but in cross-examination no suggestion was put to the DW 1, to dispute his said statement in examination-in-chief. For all these reasons, I find the contention raised on behalf of the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4, as the subsequent purchasers that the findings of the learned Court below that the respondent was ready and willing to perform the said agreement is vitiated by perversity to be well founded and the same is accepted. Thus, the learned first appellate Court fell into an error in rejecting the contention of the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4 that the respondent was not entitled to obtain a decree for specific performance as he lacked readiness and willingness to perform his obligation to the appellant no. 1 under the said agreement for sale.

In view my above findings with regard to first and third substantial question of law, the second substantial question of law framed in this appeal looses its significance and as such it is not necessary to deal with the said question.

For all the foregoing reasons, the appeal being S.A. No. 56 of 2009 is allowed. The judgements and decrees passed by both the learned Courts below stand set aside. The suit, being O.S. No. 42 of 1989 filed by the respondent stands dismissed.

However, there shall be no order as to cost.

The department is directed to forthwith send down the lower courts’ records to the learned Court below. If the appellants deposits the Special Messenger’s cost for transmission of the lower Courts’ record to the learned Court below within two weeks from date, the Department shall send down the lower Courts’ records through Special Messenger.

Let, urgent certified copy of this judgement be made available to the parties, subject to compliance with all requisite formalities.