Kerala High Court
Sabu Thomas vs N.Narayanan Namboothiri on 6 August, 2025
RFA No. 638 of 2008.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
RFA NO. 638 OF 2008
OS NO.245 OF 2004 OF PRINCIPAL SUB COURT, KOTTAYAM
APPELLANT/2nd DEFENDANT
SABU THOMAS, AGED 41 YEARS,
KANDANTHODU VEEDU, THRIKODITHANAM KARA,
CHANGANACHERY TALUK.
BY ADVS.
SRI.MATHEW B. KURIAN
SRI.K.T.THOMAS
RESPONDENTS/PLAINTIFF & 1ST RESPONDENT
1 N.NARAYANAN NAMBOOTHIRI, AGED 68 YEARS,
KARAKKATTU ILLI, KAKKATHODE, VAZHAPPALLY,
KIZHAKKUMBHAGOM VILLAGE.
2 PONNAMMA RAJ, W/O.RAJAN
AGED 44 YEARS, PUTHENPURAYIL HOUSE,,
THRIKKODITHANAM KARA, CHANGANACHERRY TALUK.
BY ADVS.
SHRI.P.GOPAL
SRI.P.G.PARAMESWARA PANICKER (SR.)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 23.7.2025, THE COURT ON 06.08.2025 DELIVERED THE
FOLLOWING:
RFA No. 638 of 2008.
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CR
JUDGMENT
Dated : 6th August 2025
The 2nd defendant in OS No. 245 or 2004 on the file of the Principal Sub
Court Kottayam, is the appellant. (For the purpose of convenience the parties
are hereafter referred to as per their rank before the trial court.)
2. The plaintiff filed the suit for specific performance of an
agreement for sale entered into with the 1st defendant agreeing to sell the plaint
schedule property for a total consideration Rs. 8,00,000/-. On the date of
agreement for sale on 31.07.2003(Ext.A1), a sum of Rs. 5,05,000/- was paid to
the 1st defendant as part of the sale consideration. As per the terms of the
agreement, the sale deed was to be executed on or before 24.03.2004, after
paying the balance sale consideration. According to the plaintiff, he was always
ready and willing to perform his part of the sale agreement, but it could not be
performed due to the default of the 1 st defendant. Finally, on 24.03.2004, after
informing the 1st defendant, the plaintiff reached the Sub Registrar’s office with
the balance sale consideration, expecting the 1st defendant to get the sale deed
executed. However, the 1st defendant did not turn up. On enquiry, the plaintiff
came to know that the 1st defendant had executed sale deed No.3142/2003 in
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respect of the scheduled property in favour of the 2 nd defendant for a
consideration of Rs. 1,00,000/-. The 2nd defendant is a close friend of the 1st
defendant and her family. The 2nd defendant was fully aware of the agreement
executed by the 1st defendant in favour of the plaintiff. Therefore, it is
contended that, the sale deed No. 3142/2003 (Ext.A2) is a fraudulent document
created in collusion between defendants 1 and 2 to defeat the rights of the
plaintiff and as such, it does not bind the plaintiff and the plaint schedule
property. It was in the above context that the plaintiff preferred this suit for a
decree for specific performance.
3. The 1st defendant remained ex parte. The 2nd defendant filed a
written statement denying the averments in the plaint and denying the execution
of any such sale agreement between the plaintiff and the 1 st defendant. It is also
denied that the 1st defendant received a sum of Rs. 5,05,000/- being part of the
sale consideration from the plaintiff. Further, according to the 2 nd defendant, the
scheduled property was already mortgaged to Kottayam District Cooperative
Bank, Kottayam for a sum of Rs.3,00,000/-. Further, the said property was
under court attachments, in O.S. No. 273 of 2003 of the Munsiff’s Court,
Alapuzha and O.S. No. 458 of 2003 of the Sub Court, Kottayam. The 2 nd
defendant purchased the property subject to the above encumbrances. After
purchasing the said property, the 2nd defendant is in possession and enjoyment
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of the said property. It was further contended that the 2 nd defendant is a bona
fide purchaser for valid consideration. He also denied the allegation in the
plaint that he is a friend of the 1st defendant. Therefore, the 2nd defendant prayed
for dismissing the suit.
4. The trial Court has framed five issues. The evidence in the case
consists of the oral testimonies of PWs 1 and 2, DWs 1 and 2, Exhibits A1 to
A6, B1 to B10 and X1 to X6. After evaluating the evidence on record, the trial
Court decreed the suit in part. Though the prayer for specific performance was
declined, the 1st defendant was directed to repay the advance amount
Rs.5,05,000/- to the plaintiff and for the said sum, a charge was created in the
plaint schedule property. Being aggrieved by the above judgment and decree of
the trial Court, to the extent it created charge on the plaint schedule property for
the decretal amount, the 2nd defendant preferred this appeal.
5. Now the points that arise for consideration are the following:
1) Whether a charge under Section 55(6)(b) of the Transfer of Property
Act will lie even against a bona fide purchaser for consideration?
2) Whether the 2nd defendant is entitled to get the protection under
Section 19(b) of the Specific Relief Act?
6. Heard Sri. K.T. Thomas on behalf of Sri. Mathew B. Kurian, the
learned counsel for the appellant and Sri.P.Gopal, the learned counsel for the
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respondent.
7. The points: The plaint schedule property consisting of 10 cents of
land and a residential building situated therein, originally belonged to the 1 st
defendant. As per Exhibit A1 agreement for sale dated 31.07.2003 the 1 st
defendant had agreed to sell the said property to the plaintiff for a
consideration of Rs. 8,00,000/-. As per Exhibit A1 agreement, on the date of
execution on 31.07.2003, a sum of Rs. 5,05,000/- was received by the 1st
defendant. As per the terms of Exhibit A1, the contract is to be performed on or
before 24.03.2004. From the evidence, it is revealed that before the expiry of
the period provided for the performance of Exhibit A1, the 1 st defendant
executed Exhibit A2 sale dead in respect of the scheduled property in favour of
the 2nd defendant, on 18.11.2003. On 27.03.2004, the plaintiff issued a lawyer’s
notice to defendants 1 and 2, after he came to know about the execution of
Exhibit A2 in favour of the second defendant, seeking specific performance of
Exhibit A1 in his favour. Thereafter, the 2nd defendant issued Exhibit A5 reply
notice dated 20.4.2004, stating that he is a bona fide purchaser for valid
consideration, and also denying the execution of Exhibit A1 sale agreement
between the plaintiff and the 1st defendant.
8. According to the plaintiff, he was always ready and willing to
perform his part of the contract, and that the sale deed could not be executed
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due to the default of the 1st defendant. Though the 2nd defendant stoutly denied
the above claim raised by the plaintiff, the trial court found that it is for the 1 st
defendant to state whether the sale could not be executed due to the default of
the plaintiff or not. Since the 1st defendant remains ex parte, the trial court
found that there is nothing to disbelieve the evidence of the plaintiff as PW1,
that he was always ready and willing to perform his part on the contract and
that the sale deed could not be executed solely due to the default of the 1 st
defendant. As per Exhibit A1 agreement for sale, the plaintiff had the period
upto 24.03.2004 to get the sale deed executed. However, much before the said
date, on 18.11.2003, the 1st defendant executed Exhibit A2 sale deed in favour
of the 2nd defendant. In the meantime, on 24.03.2004, on the last day stipulated
in the agreement, the plaintiff went to the Sub Registry after intimating the 1 st
defendant and stood himself as a witness in Exhibit A6 document. Admittedly,
the 1st defendant did not turn up before the SRO, as even before that date he had
executed Exhibit A2 sale deed in favour of the 2 nd defendant. In the above
circumstance, since the 1st defendant did not deny the claim of the plaintiff that
he was always ready and willing to perform his part of the contract and that the
contract could not be performed solely due to the default of the 1st defendant, I
am also in agreement with the finding of the trial court that the breach of
contract was committed by the 1st defendant and not by the plaintiff. It was in
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the above context, by virtue of Section 55(6)(b) of the Transfer of Property Act,
the plaintiff claimed a charge over the plaint schedule property for the amount
advanced by him.
9. Section 55(6)(b) of the Transfer of Property Act reads as follows:
“55(6) (a) ……….
(b). unless he has improperly declined to accept delivery of the property,
to a charge on the property, as against the seller and all persons
claiming under him, to the extent of the seller’s interest in the property,
for the amount of any purchase-money properly paid by the buyer in
anticipation of the delivery and for interest on such amount; and, when
he properly declines to accept the delivery, also for the earnest (if any)
and for the costs (if any) awarded to him of a suit to compel specific
performance of the contract or to obtain a decree for its rescission.
10. On the other hand, the learned counsel for the 2 nd defendant would
argue that the 2nd defendant was a bona fide purchaser of the plaint schedule
property for valid consideration and as such he is entitled to get the protection
under section 19(b) of the Specific Relief Act. Section 19(b) of the Specific
Relief Act, 1963 reads as follows :-
19. Relief against parties and persons claiming under them by
subsequent title.–
Except as otherwise provided by this Chapter, specific performance of
a contract may be enforced against–
(a) ………….
(b). any other person claiming under him by a title arising
RFA No. 638 of 2008.
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subsequently to the contract, except a transferee for value who has
paid his money in good faith and without notice of the original
contract.”
11. The learned counsel has relied upon S.100 of the Transfer of
Property Act also, to substantiate his argument that, no charge will lie against
any property in the hands of a transferee for consideration and without notice of
the charge. Section 100 of the Transfer of Property Act, dealing with charge,
reads as follows :-
100. Charges.–
Where immovable property of one person is by act of parties or
operation of law made security for the payment of money to another,
and the transaction does not amount to a mortgage, the latter person
is said to have a charge on the property; and all the provisions
hereinbefore contained which apply to a simple mortgage shall, so
far as may be, apply to such charge.
Nothing in this section applies to the charge of a trustee on the
trust-property for expenses properly incurred in the execution of his
trust, and, save as otherwise expressly provided by any law for the
time being in force, no charge shall be enforced against any property
in the hands of a person to whom such property has been transferred
for consideration and without notice of the charge.
12. Section 19(b) of the Specific Relief Act protects the interests of a
bona fide purchaser against specific performance of an agreement for sale
entered into prior to the sale deed. Though as per S.100 of the Transfer of
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Property Act no charge will lie against any property in the hands of a transferee
for consideration and without notice of the charge, it is subject to a rider ‘save
as otherwise expressly provided by any law for the time being in force’. Section
55(6)(b) of the Transfer of Property Act provides for a charge in favour of the
purchaser if he has not improperly declined delivery of the property. Therefore,
now the question to be considered is whether the 2 nd defendant was a bona fide
purchaser for value who has paid his money in good faith and without notice of
the original contract and if so, the charge under Section 55(6)(b) of the Transfer
of Property Act will lie against him also.
13. While in Exhibit A1 the total consideration shown was Rs.
8,00,000/-, in Exhibit A2 sale dead, the consideration shown is only Rs.
1,00,000/-. According to the learned counsel for the appellant, a lessor
consideration was shown in Exhibit A2 for the purpose of reducing the stamp
duty. However, the above argument advanced by the learned counsel could not
be believed for more than one reason. In the proof affidavit filed by DW1 he
claimed that the total consideration for the property was Rs.6,50000/- and total
liability over the property including the mortgage money and two court
attachments was Rs.5,50,000/- and the balance Rs.100,000/- was paid to the
defendant. From Ext.B5 it is revealed that, as on 30.11.2003 the plaint
scheduled property was subject to a liability of Rs. 3,75,000/- to DCB and that
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as on 20.12.2006, the liability has increased to Rs. 5,63,774/-. When DW1 was
cross-examined on 7.8.2007, he admitted that the liability of DCB was still not
repaid. In addition to the same, in Ext.A2, two court attachments, one in O.S.
No. 273 of 2003 of the Munsiff’s Court, Alapuzha and the other in O.S. No.
458 of 2003 of the Sub Court, Kottayam were acknowledged. In O.S. No. 458
of 2003, as per Exhibit B2 judgment, the liability is Rs.1,09,000/- with interest.
As per the proof affidavit, the amount involved in O.S.No.273 of 2003 is
Rs.53466/-.
14. In Ext.B1(same as Ext.A2) the liability due to DCB was not
shown. The reason given by DW1 is to avoid hurdles in registering the
document. At the time of evidence it is revealed that, at first the 1 st defendant
attempted to execute Exhibit A2 sale deed suppressing the court attachments
also. Only after the Sub Registrar refused to register the document without
mentioning the above court attachments, they made necessary corrections in the
sale dead and a revised sale dead was executed in the form of Exhibit A2. At
the time of evidence, the 2nd defendant as DW 1 admitted that even before the
execution of Exhibit A2 sale deed he was aware of the encumbrance over the
scheduled property with DCB and that, he along with the 1 st defendant went to
the bank and verified the details of the encumbrance. Even then, in Ext.B1 the
liability due to DCB was not shown, to avoid hurdles in registering the
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document. On the other hand, in Ext.A2 it is specifically stated that except
those two court attachments, there are no other liabilities over the said property.
Ext.A2 further states that, in case it is found that there is any other liability over
the scheduled property, the 1st defendant will be liable to indemnify the 2 nd
defendant. Therefore, by declaring that except the above two court attachments
there is no other liabilities over the said property and further undertaking to
indemnify the 2nd defendant, in case there is any other liability over the
scheduled property, the 1st defendant also has taken the risk of a possible claim
by the 2nd defendant. However, both of them have no complaints against each
other in that respect, so far.
15. Ext.B4 encumbrance certificate shows that, in addition to the two
attachments disclosed in Ext.A2, there was one more court attachment by the
Sub Court, Kottayam, in O.S.459/2003 for a sum of Rs.4,06,250/-. With regard
to the above 3rd court attachment, there is no mention in Ext.A2. The learned
counsel would argue that in Ext.B3 judgment, there is no mention about the
said attachment and that there is no such attachment over the scheduled
property. For the mere reason that in Ext.B3 there is no mention about the said
attachment, the entry in Ext.B4 encumbrance certificate could not be ignored or
disbelieved. In this context it is to be noted that it is a document produced by
the 2nd defendant himself to convince that he purchased the property after
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verifying the encumbrances over the property. Therefore, it is evident that he
has chosen to purchase the scheduled property after noticing that a third
attachment for a sum of Rs.406250/- was also there on it.
16. The contention of the plaintiff that the 2nd defendant is a close
friend of the 1st defendant and that Exhibit A2 sale deed was executed by them
in collusion with each other to defraud the plaintiff is to be appreciated in the
above context. It is true that the said contention was stoutly denied by the 2 nd
defendant in his written statement. However, when he was examined as DW1,
he admitted that he knew the 1st defendant at least one month prior to the date
of execution of Exhibit A2. Thereafter he admitted that 16 cents of property
lying on the immediate west of the plaint scheduled property originally
belonged to the husband of the 1st defendant and that it was purchased in the
name of his wife on 4.11.2003, just 14 days before the execution of Ext.A2.
According to DW1, for the property purchased in the name of his wife for
Rs.800,000/- also he paid only Rs.100,000/-. According to him, for that
property also there was liability to DCB and the liability amounting to
Rs.7,00,000/- was subsequently discharged by him.
17. DW1 claimed that the property in the name of his wife was
purchased using the sale proceeds of her property. He also admits that one
Satheesh has filed a case to set aside the sale deed executed in favour of his
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wife. He claims that the plaint schedule property was purchased using the
money withdrawn by him from the bank. However, he has not produced any
documents to prove the sale of any such property or withdrawal of any such
money from the bank. According to DW1, an agreement was executed with the
1st defendant in respect of the plaint scheduled property, 15 days before the
execution of Ext.A2. According to him, the said agreement was destroyed after
the execution of Ext.A2. He would also admit that after the execution of Ext.A2
the 1st defendant and her husband absconded, due to financial problems.
18. According to DW1, the amount was paid to the 1 st defendant on
18.11.2003, at the premises of the SRO. However, in Ext.A2 it is stated that the
amount was already received. He clarified that since the Registrar refused to
register the document on 18.11.2003, pages from 3 onwards were to be changed
and the document could be registered only on 24.11.2003 and that is why it was
recorded as amount already received. However, it is to be noted that, even after
such change, the date of Ext.A2 remains 18.11.2003. Therefore, the above
discrepancy in the evidence of DW1 regarding the date of payment of the
consideration remains as such.
19. Relying upon the evidence of PW2 it was argued that the signature
of the 1st defendant present in Ext.A1 is different from that in Ext.A2. At the
time of evidence both PWs 1 and 2 categorically deposed that the signature in
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Ext.A1 is that of the 1st defendant and he has not challenged his signature in
that document. The 2nd defendant was not in the picture, at the time of
execution of Ext.A1. Therefore, for the mere reason that there is some
difference in the signatures of the 1 st defendant in A1 and A2, it cannot be held
that Ext.A1 was not executed by the 1st defendant.
20. Generally, a bona fide purchaser will not purchase a property, if it
is subject to encumbrance and court attachments, in view of the risk involved.
In this case, even though the 2nd defendant came to know that the plaint
schedule property was subject to a mortgage with the DCB and also under three
court attachments in three different suits, in two different courts, he chose to
purchase the said property with the liabilities. In such a context, it is quite
natural to ask a question as to why the 2 nd defendant has taken such a risk for
and on behalf of the 1st defendant? In this context it is to be noted that the price
offered by the plaintiff was 800,000/- while according to the 2 nd defendant, the
total consideration was 6,50,000/- including liabilities worth Rs.5,50,000/-.
However, the total liability under the mortgage and three attachments taken
together will exceed 9 lakhs.
21. At first Ext.A2 sale deed was drafted suppressing all the liabilities
including the court attachments. Only when the Sub Registrar refused to
register the document, the court attachments were included in it. There is
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absolutely no explanation from the side of the 2nd defendant as to why he has
taken so much risk in purchasing the plaint schedule property though it was
subjected to mortgage to DCB and three court attachments.
22. The learned counsel for the appellant would argue that the property
of the wife of the 2nd defendant situated on the western side of the plaint
schedule property and that is why the appellant chose to purchase the plaint
schedule property, in spite of the fact that it was subject to mortgage with the
DCB and three court attachments. It is true that from the description of the
boundaries of the plaint schedule property it is revealed that the property which
is situated on the western side of the plaint schedule property is the property of
the wife of the 2nd defendant. Even then, as I have already noted above, the 2 nd
defendant has taken the risk of purchasing the scheduled property in spite of
the fact that it is subject to mortgage with DCB and three court attachments. As
I have already noted above, generally, a bona fide purchaser will not purchase
such a property by spending his hard earned money. Unless the 2 nd defendant is
a close associate of the 1st defendant, after coming to know about such
encumbrance and attachments, he would not have purchased the plaint schedule
property. Therefore, the above explanation offered by the 2nd defendant for
purchasing the scheduled property in spite of such encumbrance and
attachments, also cannot be believed. In the above circumstance, the only
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probability is that the 2nd defendant is a close associate and wellwisher of the
1st defendant, as contended by the plaintiff. If so, the case of the 2 nd defendant
that he was a bona fide purchaser of the scheduled property having no
knowledge about Exhibit A1 sale agreement, could not be believed.
23. It is true that section 19(b) of the Specific Relief Act protects a
bona fide purchaser for value and without notice, against a claim for specific
performance of an agreement for sale entered into prior to the sale deed.
However, Section 55(6)(b) of the Transfer of Property Act provides for a charge
in favour of the purchaser if he has not improperly declined delivery of the
property. In the instant case, the plaintiff has not improperly declined to accept
the delivery of the plaint schedule property, and the agreement could not be
performed only due to the default of the 1st defendant. In the above
circumstances, by virtue of Section 55(6)(b) of the Transfer of Property Act,
there is a statutory charge in favour of the plaintiff for the advance amount of
Rs. 5,05,000/- paid by him to the 1 st defendant. Now the question to be
considered is whether the above charge available under Section 55(6)(b) of the
Transfer of Property Act is subject to the protection under section 19(b) of the
Specific Relief Act and section 100 of the Transfer of Property Act.
24. Relying upon the decision of the Hon’ble Supreme Court in
Thekkattu Hajara Ibrahim v. Mohammed Kutty and others, [2024] 0 (SC)
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1260, the learned counsel for the appellant would argue that Charge under
Section 55(6)(b) of the Transfer Property Act will not lie against a bona fide
purchaser for valid consideration. However, in the above decision, the property
was assigned in performance of the 1st sale agreement and the person who
claimed charge was the purchaser in the 2nd sale agreement. The seller
rescinded the 2nd agreement and it was not challenged by the plaintiff. He also
has not sued for specific performance. It was in the above context that the Apex
Court held that the plaintiff in the suit is not entitled to get a charge under
Section 55(6)(b). In the instant case, the earlier agreement was that of the
plaintiff and the appellant is the subsequent purchaser. In the above
circumstances, the above decision has no application in the facts of this case.
25. In the decision in K. A. Sebastian v. Bipin O. Nair and another,
AIR 2004 Ker. 265, a learned single judge of this Court, while considering the
impact of Section 100 and Section 55(6)(b) of the Transfer of Property Act held
that, the charge will be binding on all persons even if it is a transfer for
consideration and without notice.
26. In the decision in Delhi Development Authority v. Skipper
Construction CO.(P) Ltd., and Others, (2000) 10 SCC 130, the Hon’ble
Supreme Court, while evaluating the charge available to a purchaser under
Section 55(6)(b) of the Transfer of Property Act held in paragraph 29 and 30 as
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follows :-
“29. Points 1 and 2
These points depend upon the effect of the provisions in sub-s.(6) of
S.55 of the Transfer of Property Act. That section starts with the
words: “In the absence of a contract to the contrary”, and reads thus
(insofar as it is material for our purpose):
“55. (6)(b) The buyer is entitled —
(a) xxxx xxxx xxxx
(b) unless he has improperly declined to accept delivery of the
property to a charge on the property, as against the seller and all
persons claiming under him, to the extent of the seller’s interest in
the property, for the amount of any purchase money property paid by
the buyer in anticipation of the delivery and for interest on such
amount; and, when he properly declines to accept the delivery, also
for the earnest (if any) and for the costs (if any) awarded to him of a
suit to compel specific performance of the contract or to obtain a
decree for its rescission.” (emphasis supplied)
It is plain from the above provision that, in the absence of a contract
to the contrary, the buyer will have a charge on the seller’s interest
in the property which is the subject matter of the sale agreement
insofar as the purchase money and interest on such amount are
concerned, unless the buyer has improperly declined to accept
delivery. The charge is available against the seller and all persons
claiming under him. This charge in favour of the buyer is the
converse of the seller’s charge under S.55(4)(b). The buyer’s charge
under this section is a statutory charge and differs from a
contractual charge which a buyer may be entitled to claim under a
separate contract (M. M. R. M. Chettiar Firm v. S. R. M. S. L.
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Chettiar Firm, AIR 1941 PC 47 : 46 CWN 57). No charge is
available unless the agreement is genuine (Trimbak Narayan Hardas
v. Babulal Motaji, 1973 (2) SCC 154 : AIR 1973 SC 1363). As
pointed out in Mulla’s Commentary on Transfer of Property Act, 8th
Edn. (p. 411), the charge on the property under S.55(6)(b) is
enforceable not only against the seller but against all persons
claiming under him. Before the amending Act of 1929, the words
“with notice of payment” occurred after the words “all the persons
claiming under him”. These words were omitted as they allowed a
transferee without notice to escape. After the amendment of 1929,
notice to the purchaser has now become irrelevant.
30. When the property upon which the charge is created gets
converted into another form, the buyer will be entitled to proceed
against the substituted security. This is a general principle of law
and S.73 of the Transfer of Property Act is only an example of the
said principle. The above principle has been applied to enforce
mortgage on substituted securities (see Barhamdeo Prasad v. Tara
Chand (1913 (41) IA 45 : 12 All LJ 82 : 16 Bom LR 89 : ITR 1914
(41) Cal 654 (PC)) and Surapudi Muniappa v. Nookala Seshayya
Gari Subbaiah (AIR 1917 Mad. 880)). The same principle which is
applicable to mortgages applies to cases of statutory charge under
S.55(6)(b). If immovable property is charged and is converted into
another property or money, then the charge will fasten on the
property or money into which the subject matter of the agreement is
converted.
27. In the decision in Krishnamenon v. Pradeep Kumar and Anr.
(AS No. 249 of 2001 dated 2.12.2016 – 2017 1 KHC 283), in a similar
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instance, while an agreement for sale was in force in favour of the plaintiff, the
1st defendant executed a sale deed in favour of the 2 nd defendant. In the suit
filed by the plaintiff for specific performance, the trial court has directed the 1 st
defendant to pay the advance amount. However, the trial court refused to grant
charge on the plaint schedule property for the amount covered by the decree.
However, in appeal, reversing the above finding of the trial court, a Division
Bench of this court held that the charge under Section 55(6)(b) of the Transfer
of Property Act is available even against a bona fide transferee for value from
the seller. In paragraph 21, the Division Branch held as follows :-
“21. The legal position that emerges from the decisions referred to above
is that, the provisions under clause (b) of subsection (6) of Section 55 of
the Transfer of Property Act, as amended by Act 20 of 1929, makes the
charge of the buyer for the purchase-money properly paid effective not
only against the seller, but also against all persons claiming under him,
irrespective of notice of such payment of purchase-money. Therefore, the
charge provided under clause (b) of sub-section (6) of Section 55 of the
Act is available even as against a bona fide transferee for value from the
seller.”
28. In the light of the above discussions, it can be seen that the charge
under Section 55(6)(b) of the Transfer of Property Act is available even against
a bona fide transferee for value from the seller. At the same time, in this case
there is no evidence to prove that the 2 nd defendant is a bona fide purchaser for
RFA No. 638 of 2008.
21
2025:KER:58837
value. Therefore, I have no hesitation in holding that the plaintiff in this case is
entitled to get a charge for the advance amount paid by him, in the plaint
schedule property. In the above circumstance, the trial court was justified in
holding that the plaintiff is entitled to get a charge for the decreetal amount in
the plaint schedule property. I do not find any irregularity or illegality in the
impudent judgment and decree of the trial court so as to call for any
interference. Points are answered accordingly.
In the result, this appeal stands dismissed with costs.
All pending interlocutory applications in the appeal will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/25.7.