Subsequent sale of suit property

2019 MLD 1630 ISLAMABAD Judicial Precedent

Ss. 12, 20 & 27 (b)Transfer of Property Act (IV of 1882), Ss. 41 & 3Suit for specific performance of agreement to sellSubsequent sale of suit propertyBona fide purchaserNoticeContention of defendant was that she was bona fide purchaser of suit propertySuit was dismissed by the Trial Court but Appellate Court decreed the sameValidityDefendant was bound to prove that she had no notice of the earlier agreement with regard to suit property

Notice contemplated under S. 27(b) of Specific Relief Act, 1877 was not confined to actual notice but it did include constructive notice

Any person acquiring any immovable property or any share or interest in any such property should be deemed to have notice of the title if any person who was for the time being in actual possession thereof

Where a subsequent transferee of an immovable property acquired it without making any inquiry as to the title of the person in possession then he would take the property subject to the right and title of the person in possession

When a person did purchase property from an owner knowing that it was in the possession of another then he was under a duty to inquire into the nature of that possession and in absence of such inquiry knowledge of title under which possession was held should be attributed to the purchaser

Possession of suit property, in the present case, was with the plaintiff and defendant was bound to enquire about the nature of his possession when she entered into the agreement to sell

Nothing was on record that defendant made inquiries with regard to nature of possession of plaintiff over the suit land

Defendant was deemed to have constructive notice of the agreement in favour of plaintiff, in circumstances

Subsequent transaction of sale of suit property by the defendant could not take precedence over the earlier sale agreement

Protection of S.41 of Transfer of Property Act, 1882 was available to a transferee who purchased the property after reasonable care

Subsequent purchaser seeking benefit of S.41 of Transfer of Property Act, 1882 must plead with clarity in his written statement that before purchasing the property reasonable care had been taken by making enquiries as to the title of seller and status of the person in possession of such property

Defendant had not taken reasonable care by making an inquiry and she could not be termed a bona fide purchaser

Mere additional prayer in a suit for specific performance of an agreement to sell for grant of compensation could not be a ground to deny relief of specific performance

Mere mentioning of an amount in the agreement which was to be paid by a seller in case of its breach did not disable the purchaser from seeking the specific performance of such an agreement

Breach of contract to transfer immovable property could not be adequately relieved by compensation in monetary terms

Impugned judgment passed by the Appellate Court was in accordance with law

Revision was dismissed, in circumstances.

2016 CLC 160 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 12 & 27(b)Qanun-e-Shahadat (10 of 1984), Arts.117, 118, 119 & 120Suit for specific performance of agreement to sellSubsequent sale of suit propertyBona fide purchaserOnus to proveScopeGeneral power of attorneyAgreement to sell had been executed between the plaintiff and original owners of suit property

Subsequent purchasers of suit land were in cultivating possession of the same as a tenant prior to execution of sale deed in their favour

Original owner of suit property had received the entire consideration at the time of execution of sale deed in favour of subsequent purchasers

Prior sale agreement was in the knowledge of subsequent purchasers

Subsequent purchasers were bound to prove that they were bona fide purchasers for value without notice of prior sale agreement of suit land

Party who had asserted that he/she was a bona fide purchaser for value had to prove that he/she had paid the price in good faith and he/she had no notice of the earlier bargain between vendor and any other person or persons

Initial onus to prove the fact of bona fide purchaser for value without notice would be on subsequent purchaser

Onus to prove the disputed fact was not constant but it would change on coming the relevant facts on record

Once the initial onus of asserted fact was discharged by the asserting party, it would become the obligation of other party who was denying the same to discharge the burden of proof

Where subsequent purchaser had asserted that he/she was bona fide purchaser, he/she had to establish on record first that disputed transaction was legal and against legitimate consideration with legitimate object

Said transaction should not be to cause loss to other person or persons

Claimant had to establish that defect was not in his/her knowledge nor he/she was aware about the interest of any other person or persons in the suit property

If such facts were proved, onus of purchasers stood discharged

Breach of contract was on the part of original owner of suit property but not on the part of plaintiff

Original owner remained unsuccessful in obtaining proprietary rights in favour of his wife till her death

Wife of original owner had not withdrawn or revoked general power of attorney in favour of her husband

Original owner of suit property agreed to sell suit land assuming that he would be able to obtain proprietary rights of land in favour of his wife

Subsequent purchasers did not bother to ask the original owner about the earlier bargain of suit land

Impugned judgments and decrees passed by the courts below were set aside and suit was decreed to the extent of land owned by the original owners

Sale in favour of subsequent purchasers was set aside

Second appeal was accepted accordingly.

2015 MLD 456 PESHAWAR-HIGH-COURT Judicial Precedent

S. 12Suit for specific performance of contractSubsequent sale of suit propertyRequirementsLis pendence, principle ofApplicabilityAlternative reliefTrial Court dismissed the suit but same was decreed to the extent of recovery of sale price by the Appellate CourtValidity

Plaintiff had succeeded to prove the execution of agreement to sell and no contradictions were found in the statements of his witnesses

Stamp vendor was not necessary to be examined as his production would be necessary if stamp papers were purchased from the place other than where the property was situated

Defendant had refused the execution of agreement to sell but he had not deposed about transfer of suit land in favour of subsequent purchasers

Defendant used to sell the lands and then denied the same

Subsequent purchasers had acquired suit land during pendency of suit and same was hit by the doctrine of lis pendence

Subsequent purchasers could not claim to be bona fide as requirements for the same were not fulfilled

Agreement to sell had been proved and subsequent sale of suit property would not create title in favour of subsequent purchasers

Main prayer had to be taken into consideration and not the alternative

Appellate Court had wrongly ignored the main relief and focused on the alternative relief

Suit of plaintiff was decreed subject to payment of remaining sale consideration within a period of thirty days

Revision was accepted in circumstances.