Patna High Court
Shankar Prasad vs Mt. Muneshwari And Anr. on 16 May, 1968
Equivalent citations: AIR1969PAT304, AIR 1969 PATNA 304
JUDGMENT H. Mahapatra, J.
1. Plaintiff is the appellant. He brought a suit for specific performance of a contract to sell three rooms of a house belonging to defendant No. 1 for Rs. 4,500/-. This agreement was executed on the 15th of June, 1959 by defendant No. 1 who took from the plaintiff Rs. 500/- towards consideration. Without executing the deed of sale in pursuance of that agreement he (defendant No. 1) sold two of those rooms to defendant No. 2 for Rs. 4,800/-. The deed of sale in that respect was executed by defendant No. 1 in favour of defendant No. 2 on the 10th of July, 1959 and the document was registered. The present suit was instituted on the 8th of August, 1959.
The trial court held that defendant No. 2 was bona fide purchaser of value without notice of any agreement between the plaintiff and the defendant No. 1 in respect of the property which he purchased. It also held that the agreement on which the plaintiff relied and sued for specific performance was not genuine. When an appeal was brought by the plaintiff to the court below, the finding about the lack of genuineness of the said agreement was reversed; but the plaintiff's suit for specific performance was equally refused by the lower appellate court on the ground that the defendant No. 2 was a bone fide purchaser for value and without notice of the agreement between the plaintiff and defendant No. 1 for sale of the property concerned. The appellate court, however, modified the trial court's decree to the extent that the plaintif was to get Rs. 500/- from defendant No. 1. Against the dismissal of the suit for specific performance of the contract the plaintiff has come in this second appeal.
2. Learned counsel for the appellant contended that the deed of sale executed on the 10th of July, 1959 by the defendant No. 1 in favour of defendant No. 2 in respect of a part of the property which was the subject matter of the agreement to sell to the plaintiff, having not been registered before the institution of the suit, cannot present any difficulty to the plaintiff getting a decree for specific performance of the contract on the finding that that agreement was genuine. That appellate finding, however, was challenged by the respondents (defendant No. 1) who has filed a cross-objection in this appeal. I shall deal with that later. Assuming that the appellate court's finding about the genuineness of the sale deed (Ext. 5) is correct, whether that would help the plaintiff-appellant in any way to get over the other finding that the subsequent purchaser, defendant No. 2 was a bona fide purchaser for value and without notice of the previous agreement.
Learned counsel's argument is that the deed of sale (Ext. Ka) taken by defendant No. 2 from defendant No. 1 will be hit by the doctrine of lis pendens because the transfer of property under that document had not been complete before the institution of the present suit. Ext. Ka was executed on the 10th of July, 1959 and was presented that very day in the Registration Office for registration and the execution of the document was admitted before the Registrar that day also. All the relevant endorsements had been given by the Registrar with his signature on the back of the pages of that document. There is, however, an endorsement on the back of the last page indicating that the copies of that document in the register book in the Registration Office had been made on the 24th of October, 1959. This endorsement, according to learned counsel, is in accordance with the provisions of Section 60 of the Indian Registration Act. He contended that till that date the registration was not complete and referred to Section 61 (2) of that Act. This part of the argument is quite valid but I am afraid that would not be of any assistance to the plaintiff. Under Section 47 of the Indian Registration Act a registered document becomes operative at the time from which it would have commenced to operate if no registration thereof was required or made and not at the time of its registration.
As far as Ext. Ka is concerned, the time of its registration or in other words, the completion of registration of the document, was not till the 24th of October, 1959, but once it is registered, the vendee, defendant No. 2 obtained a title under that document as operative from the date of its execution, which was 10th of July, 1959. Section 19 of the Specific Relief Act provides:--
"Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against,
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract."
It has to be seen whether the defendant No. 2 can come within clause (b) above. He is claiming a title arising subsequent to the contract of which the plaintiff asked for specific performance and, therefore, specific performance could be enforced against him. If he did not claim such a title, then there was no need for the plaintiff to make him a party and ask for specific performance of the said contract against Mm. It is the claim of a title which has brought the defendant No. 2 within the exception given in clause (b) of Section 19 of the Specific Relief Act and that was the reason why the plaintiff made him a party. It would not now be open to the plaintiff to say that the defendant no, 2 had no title or did not claim any title before the institution of the present suit. In spite of the fact that the registration of the deed of sale (Ext. Ka) was not complete till the 24th of October, 1959, the defendant No. 2's title under that document has become operative from the 10th of July, 1959, which was before the institution of the suit.
3. Learned counsel referred to the case of Tilakdhari Singh v. Gour Narain AIR 1921 Pat 150 to support his contention about lis pendens against the defendant No. 2 on the facts of that case I do not see that there was at all either a discussion or adjudication on the question of lis pendens. There, a mortgage decree had been obtained on the 8th of March, 1907 in a suit instituted on the 7th of November, 1906 and the delivery of possession of the mortgaged property was taken on the 10th of September, 1910. Since the decree-holder who had taken delivery of possession did not get peaceful possession of the said property, he instituted another suit on the 3rd of March 1913 for recovery of possession of that property and mesne profits, against the defendant in whose favour a deed of sale had been executed on the 11th of August, 1906 (the registration of that sale deed was completed on the 22nd November, 1906). That suit was decreed and when the matter came in second appeal to the High Court at the instance of the judgment-debtor it was urged that the plaintiff was not entitled to possession on the date of the mortgage suit, i e., 7th of November, 1906, as ownership of the property involved had been transferred to the defendant appellant on execution of a sale deed in his favour in respect of that property on the llth of August, 1906. That was overruled by this court on the ground that the deed of sale in favour of the defendant-appellant had not been registered by the date of the institution of the earlier mortgage suit. There was, therefore, no point of the doctrine of lis pendens in that case.
4. Learned counsel's further argument on which he very much stressed, is that there is no finding by the lower appellate court or. even by the trial court that the defendant No. 2 was a bona fide purchaser, although there is a finding that he had paid the consideration money. Here, I am afraid, there is a little misconception. What learned counsel really meant was that there is no clear finding that defendant No. 2 had paid the consideration money in good faith to defendant no, 1, "Good faith has a special connotation and it has been so understood. Courts below have used the expression "bona fide purchaser" in the same sense. Reading the two Judgments I am not left with any doubt that both the courts came to the conclusion that defendant No. 2 had paid his money to the vendor in good faith at a time when he had no notice of the original contract between the plaintiff and defendant No. 1.
Learned counsel placed another aspect of this matter in a different way. He argued that the plaintiff was in possession of the property involved in the said contract when defendant No. 2 purchased the property. According to learned Counsel he (defendant No. 2) should have made enquiries from the plaintiff as to the nature of his possession before fee entered into transaction with the plaintiff for the same property. If he would have made such an enquiry, he would have come to know about the existence of the original contract between the plaintiff and defendant No. 1. There is some force in this line of argument. But on the facts of the present case nothing will be gained by that. Both the plaintiff and defendant No. 2, according to the evidence, had been tenants in respect of one room each in the some house of the defendant No. 1 and carrying on the business of goldsmith. The nature of possession of the plaintiff in that room was well known to the defendant No. 2. There has not been any change in that nature in any apparent manner, to set the defendant No. 2 on a suspicion of any kind. Besides, the plaintiff did not extend his possession beyond the room in which he had been a tenant for years under the defendant No. 1 to any of the room although two other rooms in the same house were also the subject matter of the original contract for sale. It is not that the defendant No. 1 is an outsider or was not aware of the plaintiff's possession in regard to his occupation of one of the rooms in defendant No. 1's house. In that background much cannot be made of the fact that the defendant No. 2 did not adduce any evidense to the effect that he had made enquiries from the plaintiff about the nature of his possession before he entered into transaction with defendant No. 1 for purchase of a portion of that house. A claim in good faith is not in any way (affected ?) by absence of such enquiry in the circumstances stated above.
5. Learned counsel referred to a decision, Daniels v. Davison, (1809) 16 Yes 249 to press his point that a tenant in possession of a property will be entitled to all equities other than tenancy that he may have against a purchaser from the landlord; his possession will be a sufficient notice to such a purchaser, of any other equity that he (tenant) might be possessed of against the owner. In that case, a person who was a lessee for 45 years had an option of a purchase of that property from the owner. It was held that a subsequent purchaser should have enquired from him in what right he was in possession of that property.
IN the case of Robert George Barnhart v. James Blackwood Greenshields, (1853)9 Moore PC 18, it was observed that it there Is a tenant in possession of a land, a purchaser is bound by all equities which the tenant could enforce against the vendor, and that the equity of the tenant extends not only to interests connected with his tenancy but also to interests under collateral agreements the principle being the same In both classes of cases, namely that the possession of the tenant Is notice that he may have some interest in the land and that the purchaser having notice of that fact, is bound according to the ordinary rule, either to enquire what interest he has, and to vacate whatever it may be. It Is to be noticed that in both these cases "other equities" were by way of collateral agreements to the tenancy. In the instant case, it was no part of the agreement of tenancy between the plaintiff and defendant No. 1 in respect of the room which he (the plaintiff) had been in occupation for several years, that he could have enforced his right to purchase either that room or any other rooom in that house from the owner (defendant No. 1). The contract on which the plaintiff relies is entirely different and much subsequent to his tenancy. In that view, that is not a right of equity which the tenant could enforce against a subsequent purchaser. Secondly, as I have already pointed out, on the facts of the present case the defendant No. 2 was well aware of the nature of the possession of the plaintiff in one room of that house; plaintiff was not in possession of other two rooms and there had not been any change in that whatsoever after the contract came between the plaintiff and the defendant No. 1 and he (defendant No. 2) being a co-tenant in the same premises, did not or could not have any necessity to make any enquiries about the nature of possession of the plaintiff before he entered into any transaction for purchase of a portion of that house from defendant No. 1. Absence of such enquiry in the present case cannot lead to any absence of bona fides or good faith on the part of defendant No. 2. It having been found that he had no notice of the previous contract and that he paid the consideration money to the vendor, he clearly comes within the exception provided in Clause (b) of Section 19 of the Specific Relief Act and the sued contract cannot be specifically enforced against him This disposes of the appeal which is dismissed but without costs. The judgment and decree of the court below are affirmed.
6. In regard to the cross-objection filed by the defendant No. 1, the complaint is that the sued agreement (Ext. 5) should aot have been held to be genuine by the appellate court in disagreement with the findings arrived by the trial court. Learned counsel pointed out that though the original court had found that that document had not been explained to the executant (defendant No. 1) who was an illiterate pardanashin lady, the appellate court did not consider that aspect at all. No doubt, if the executant is a pardanashin lady it was accessary that the plaintiff should have proved that before execution of a document by her, that had been read out to her and explained.
In other words. It should have been prsved that she, after understanding the implication of the document executed that. The remark by the trial court about the defendant No. 1 being an illiterate pacrdanashin lady was not dependent on discussion of any evidence in that respect. The appellate court found on a very careful consideration of the evidence that the sued agreement was executed by the defendant No. 1 and was a genuine document Neither in the written statement nor In the evidence any of the defendants had raised a plea that the sued agreement (Ext. 5) was not read over and explained to defendant No. 1 and that she had not understood the document when it was executed by her. Their case was a complete denial of the execution and registration of the document. In that view of the matter, the finding of the appellate court cannot be challenged merely on the ground that it did not consider the observation of the trial court that the defendant No. 1 was a pardanashin lady. The cross-objection is therefore, dismissed but without costs.