Bona fide purchaser without notice must prove the exception in specific performance disputes; remand followed incomplete findings.

In a specific performance suit against subsequent transferees, the transferee claiming protection as a bona fide purchaser for value without notice must prove that exception; the plaintiff is not required to disprove notice once the contract is established. An agreement for sale does not, by itself, require the plaintiff to show an immediate right to possession before seeking specific performance, because possession follows execution of the conveyance. Where the first appellate court failed to decide material questions on notice, the differing positions of the defendants, and the sale documents, the judgment was incomplete and unsafe, justifying remand for retrial.

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Issues: (i) Whether, in a suit for specific performance, the burden of proving that subsequent transferees purchased without notice of the earlier agreement lay on the plaintiff or on the transferees; (ii) whether an agreement for sale under the Transfer of Property Act barred the plaintiff from seeking possession before conveyance; and (iii) whether the appellate judgment required remand for retrial because material issues had not been properly determined.

Issue (i): Whether, in a suit for specific performance, the burden of proving that subsequent transferees purchased without notice of the earlier agreement lay on the plaintiff or on the transferees.

Analysis: Section 27 of the Specific Relief Act makes a contract specifically enforceable against the promisor and persons claiming through him, except a transferee in good faith for valuable consideration and without notice. The exception is in the nature of a special defence, and the ordinary rule is that the party claiming the benefit of an exception must establish it. Section 114 of the Evidence Act also supports the view that, once the contract is proved or admitted, the plaintiff is entitled to succeed unless the transferee proves the facts bringing him within the exception. The appellate court had wrongly placed the initial burden on the plaintiff and had failed to consider circumstances bearing on notice.

Conclusion: The burden of proving absence of notice lay on the subsequent transferees, not on the plaintiff.

Issue (ii): Whether an agreement for sale under the Transfer of Property Act barred the plaintiff from seeking possession before conveyance.

Analysis: Section 54 of the Transfer of Property Act was invoked to contend that a contract for sale created no interest in the property and therefore the plaintiff had to prove an immediate right to possession. The suit, however, was one for specific performance. The right to recover possession would arise only after performance of the contract and execution of a conveyance in pursuance of it.

Conclusion: The plaintiff was not required to establish an immediate right to possession before obtaining specific performance and conveyance.

Issue (iii): Whether the appellate judgment required remand for retrial because material issues had not been properly determined.

Analysis: The appellate court had not made findings on important matters bearing on notice, had not separately addressed the differing positions of the various defendants, and had not examined the documentary schedule in relation to the later sale deeds. These omissions made the judgment incomplete and unsafe to sustain.

Conclusion: The matter had to be remanded for retrial by the first appellate court.

Final Conclusion: The appeal succeeded to the extent that the appellate decree was set aside and the suit was sent back for fresh adjudication on the unresolved issues.

Ratio Decidendi: In a suit for specific performance against subsequent transferees, the transferee who claims protection as a bona fide purchaser without notice must prove that exception, and an appellate decision that omits findings on material issues may be remanded for retrial.

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