S. Tiruvenkatachariar v. Venkatachariar

1. The learned District Judge, in considering the evidence in the case, has proceeded upon the ground that the burden of proving that defendant 3's purchase from defendant 2 was made with notice of the prior contract to sell alleged to have been made with the plaintiff by defendants 1 and 2, lay on the plaintiff. The case of Himatlal Motilal v. Vasudec Genesh(1) decides that the burden of proving: (a) that the subsequent purchaser paid valuable consideration, (b) that he acted bona fide; and (c) that he had no notice lies on that purchaser, assuming, of course, that the plaintiff has established the prior agreement to sell alleged in his plaint. Further the District Judge has not at all considered several circumstances mentioned by the Munsif as pointing to mala fides on the defendant's part: see paras. 31 to 33 of the Munsif's judgment.

2. Lastly, the District Judge is clearly wrong in saying that, even after his findings in favour of the defendant, he need not go into the questions involved in issues 8 and 9 and that the plaintiff should be relegated to another suit to obtain the reliefs he would be entitled to as against defendant 2 when the plaintiff failed as against defendant 3.

3. It is also unsatisfactory that the District Judge has not given a finding on the question whether there was really a contract to sell made between the plaintiff and defendants 1 and 2, and whether a sale deed was executed by defendants 1 and 2 in 1905: “see para. 2 of the District Judge's judgment where he says “assuming the sale alleged by the plaintiff in his favour to have been really executed”).

4. We reverse the judgment of the District Judge as unsatisfactory on all points and remand the case to the District Court to decide the appeal de novo. The District Court is requested to give definite findings on all the issues in the case when deciding the appeal and also on the question as to the approximate value of the plaint property at the time of the plaintiff's sale deed and defendant 3's sale deeds, the payments alleged by defendant 3 to have been made towards the purchase money of Rs. 1,250, whether Rs. 1,250 was a real or a fictitious price, and so on. Costs of this second appeal will be costs in the cause. Defendants 1 and 2 having both died, if defendant 2's son raises any question as to his liability to fulfil the obligations of the father the District Court will go into and decide such questions also.

S.N/R.K

5. Case remanded.