Patna High Court
Mohammad Mustafa vs Haji Mohammad Isa And Ors. on 25 September, 1985
Equivalent citations: 1986(34)BLJR725, AIR 1987 PATNA 5, 1986 BLJR 725 (1986) PAT LJR 678, (1986) PAT LJR 678
JUDGMENT Ramnandan Prasad, J.
1. This appeal by the plaintiff is directed against the judgment and the decree dismissing his Suit for specific performance of contract with regard to the sale of a house said to have been entered into by the original defendant No. 1 Haji Md. Isa and the plaintiff.
2. The case of the plaintiff is that he was a tenant in one of the Katras of a Pucca house, which stood over four decimals of land appertaining to plot Nos. 2230 and 2231 under Khata No. 721 in village Alamglrpur, Phulwarisharif, a suburb of the town of Patna, which belonged to original defendant No. 1 Md. Isa, who was his uncle. In the month of April, 1972 Haji Md. Isa expressed his desire to plaintiff Md. Mustafa to sell the house, as be was in need of some money, and eventually, after some negotiation, Md. Isa agreed to sell the house to the plaintiff for a sum of Rs. 20,000/-. As the plaintiff had not got so much fund with him at that time for getting the sale deed executed, he wanted some time and Haji Md. Isa agreed to grant him some time. It Is said that on 14th June, 1972 Md. Isa told the plaintiff that he urgently required Rs. 7,000/- and so he should advance the amount to him and get a deed of agreement to sell executed by him. The plaintiff agreed. On the following day i.e. on 15-6-1972 the plaintiff advanced Rs 7,000/- towards the aforesaid consideration money of Rs. 20,000/- to Haji Md. Isa, who, in turn, executed an agreement to sell on an stamped paper and delivered the same to the plaintiff. According to this agreement Md. Isa agreed to execute a registered sale deed in respect of the said house in favor of the plaintiff on payment of the balance of the consideration money by the last week of January, 1973, but he put the plaintiff in possession of the entire building at that very time in part performance of the contract. The case of the plaintiff is that he managed the balance of the consideration money and he asked Md. Isa to executed the sale deed, but he did not do, and hence the plaintiff sent a registered notice through his pleader on 7-10-1972 which was refused. In the meantime, the plaintiff learnt that the father of the minor defendant Nos. 6 and 7, namely, Arif Hussain, brought a collusive sale deed dated 20-7-1972 into existence in the name of these defendants said to have been executed by Md. Isa. It is said that this sale deed is a fraudulent document and was brought into existence inspite of the aforesaid agreement executed by Md. Isa in favor of the plaintiff. It has also been alleged that this sale deed can have no legal effect, as it was executed without consideration and with full knowledge of the said agreement in favor of the plaintiff.
3. Original defendant No. 1 Haji Md. Isa had filed written statement denying the allegations of the plaintiff but he died during the pendency of the suit on 20.6.1974, and his heirs, namely, respondent Nos. 1(a) and 1(b), who were substituted in his place, adopted the written statement filed by him. Defendant Nos. 2 and 3 have filed a joint written statement. The case, however, put forward in the two sets of written statement is substantially the same, The case of the defendants is that Md. Isa was in need of money and so he wanted to sell the house, It has also been admitted by Md. Isa that the plaintiff also wanted to purchase the house, but the price offered by him was too low and hence he had rejected his offer. He has denied to have agreed to sell the house to the plaintiff for a sum of Rs. 20,000/- or to have executed an agreement in his favor in this connection. According to these defendants, the agreement said to have been executed by Md. Isa and filed by the plaintiff is a forged, fabricated and antedated document. Their further case is that Md. Isa had agreed to sell the house to defendant Nos. 2 and 3 for a sum of Rs. 24,000/- and he actually executed a registered sale deed in their favor on 20-7-1972 after receiving the full consideration money of Rs. 24,000/- from them. According to them, this sale deed is a genuine document and was executed for consideration and Md. Isa bad also put defendant Nos. 2 and 3 in possession of the house after sale and they are coming in possession thereof. Further case of the defendant Nos. 2 and 3 is that they are bonafide purchasers for value without any notice of the alleged agreement.
4. The learned Subordinate Judge, who tried the suit dismissed the suit on the following findings:
(1) The agreement in question (Ext. 1) was not executed by Haji Md. Isa and was not a genuine document.
(2) The sale deed (Ex. A/1) was duly executed by Md. Isa on receiving full consideration and was a valid and genuine document.
(3) Defendant Nos. 2 and 3 were bonafide purchasers for value without notice of the said agreement.
5. The learned Counsel appearing for the appellant has challenged the aforesaid findings arrived at by the learned Subordinate Judge and so the following points arise for determination in this appeal:
(i) Whether the agreement (Ext. 1) is a valid and genuine document?
(ii) Whether defendant Nos. 2 and 3 are bonafide purchasers for value without notice of the Beyananama aforesaid?
Point No. (1)
6. The witnesses who deposed on this point on behalf of the plaintiff are Md. Idris (P.W. 4), Abdul Razak (P.W. 5), besides plaintiff Md. Mustafa himself (P.W. 2). Naturally P.W. 2 is the most important witness amongst these three, the other two being only attesting witnesses to the deed.
7. As many as five persons figure as attesting witnesses on the Beyananama (Ext. 1) including P.Ws. 4 and 5. The other three, namely, Md. Kamruddin, Abdul Gani and Md. Yaqub are dead according to the plaintiff, and as such they could not be examined. The scribe of the deed, namely, Bakruddin, has not been examined by the plaintiff, although his evidence would have been of considerable importance in the case An explanation was offered for his non-examination in a petition filed on 2-7-1977 that he had been gained over by the defendants, but the latter had controverter this allegation by filing a rejoinder. Whatever be the real position, the fact remains that the scribe has not come forward to support the case of the plaintiff regarding the genuineness of the Beyananama.
8. P.Ws. 4 and 5 have, of course, stated that the Beyananama was executed by Md. Isa in their presence, but, on a close scrutiny, their evidence does not inspire confidence.
9. According to the plaintiff and P.Ws. 4 and 5 this Beyananama was scribed in the hotel of the plaintiff located in the house in suit which itself lies on Fulwari Chouraha at about 10 A.M. on 15-6-1972, It is really surprising as to why this Beyananama was scribed, executed and attested at a hotel, which is a public place. As admitted by P.W. 5, this hotel is on the Chouraha where large number of people move about. Then, according to this very witness as many as 15 to 20 persons were sitting in the hotel when the Beyananama was scribed and consideration money of Rs. 7,000/- was paid to Md Isa. It is really surprising how Md. Isa selected this hotel for getting the Beyananama soribed and executed. Indeed, it does not appear quite natural that he would have selected this hotel for receiving amount of Rs, 7,000/- in cash in presence of so many outsiders, some of whom must be strangers. According to the evidence he had taken the said amount after counting the same in presence of everybody. This circumstance assumes importance, as the residential house of Md. Isa was just by the side of this building where he had his own Baiihka for males where he usually sits, it is also strange that Md. Isa did not call either of his sons or any of his relations and all alone went to the hotel on his own without being called by the plaintiff there. It is also not easily believable that Md, Isa had called Bakruzama, an Advocate's clerk, for scribing the Beyananama, when he himself had not taken any such work from him in the past According to the admitted position, Bakruzama is a resident of Rajendra Nagar and Beyananama was being executed at Phulwarisharif, which is far away from there. Indeed, according to the evidence of the plaintiff himself, it is he who had taken this scribe to his own hotel for scribing the deed and even then he has not dared to examine him on his behalf.
Indeed, the presence of P.W 4 at the relevant time in the hotel of the plaintiff appears to be a peculiar coincidence. Admittedly, he is a resident of Ramnabag, which is at a considerable distance from Phul varisaarif, and has got absolutely no concern with that place. He had also got no concern either with the plaintiff or Md. Isa. Of course, he claims to have gone to the book-binding shop of Md. Isa at Ramnabag on a few occasions, but on his own showing that shop is not there after 1962 and he had no occasion to meet Md. Isa thereafter until that fateful day. At one place he had stated that he bad gone there as he had been called by Md. Isa, but he has not stated as to the person who had gone to call him and why he would come to the hotel of the plaintiff on being called by Md. Isa, when he had no occasion to meet Md. Isa after 1962. It is hardly believable that he would have been called by Md. Isa from Ramnabag to the hotel of the plaintiff for simply attesting Beyancmama, when a lot of persons were available for that purpose at Phulwarisharif itself. In fact his evidence is far from satisfactory and it was suggested to him that he is a servant of Majo Babu who had set up the plaintiff to lay a claim on the house in question.
10. P.W. 5, Abdul Razzak, also does not appear to be a dependable witness. It was suggested to him that he was working as a tailor in the house of the plaintiff which fact he denied and asserted that he worked as a tailor in the shop of Md. Halim at Khagaul. But, he has been contradicted by the plaintiff himself, according to whom, this witness worked as a tailor in the shop of one Rauf at Phulwarlsharif itself. In any event, this witness (P. W. 5) had admitted that he used to go to work at Khagaul daily in the morning and return home only at 11 P.M. and this he had been doing during the last 15 years. If it was so, it is strange as to how he was present in the hotel at 10 A.M. on 15.6.1972. He has said that he had gone to the shop of the plaintiff for taking tea, but in ordinary course he would have gone to take tea before 9 A.M. which was his time for going to his own tailoring shop at Khagaul. It is really strange that Md. Isa would have asked him to sit in that hotel without any reason at the cost of his work. It would also be significant to point out that he claims to have signed in Deonagri script on the Beyananama, but he has put his left thumb impression on his deposition which is indicative of the fact that he is an illiterate.
11. The plaintiff (P.W. 2) has not faired better. He has stated that Md. Isa had told him in April 1972 that he wanted to sell the disputed house and that the terms of the sale were settled between the two only within two days from the start of the negotiation Nobody else was present during these talks. He has. however, not explained as to why no Beyanamama or sale deed was executed at that time. He has also not stated as to when the sale deed was to be executed. In fact, he could not say in which part of April this talk had taken place. Then, he has stated that all of a sudden Md. Isa told him for the first time on 14-6-1972 that he wanted money and accordingly Beyanamama was scribed and executed on the following day i.e. on 15-6-1972. None else was present at this talk also. Indeed, it is not clear from the evidence of the plaintiff as to what was the necessity which compelled Md. Isa to execute the Beyananama in question all of a sudden on 15-6-1972 The Beyananama recites about some necessities, but there is no evidence to show that in fact those necessities existed. It is also strange that according to the plaintiff himself the first talk regarding advance of money and execution of Beyananama took place on 14-6-1972, but Md. Isa is said to have purchased the stamp papers for Beyananama on 10-6-1972 i.e. four days before the negotiation and the talk in this regard had started although both the parties are close relations and also close neighbors.
12. Then, there is no evidence worth the name to show that the plaintiff came in actual or even constructive possession of the entire building after the execution of the said Beyananama, as stated therein, and as claimed by the plaintiff Admittedly, the plaintiff was occupying only one of the Katras of the building as a tenant since the time of his father in which he was holding his hotel. There is nothing on the record to show that he really came in possession of the entire building after the execution of the Beyananama, It is the admitted admitted position that there were six other tenants like the plaintiff in that building besides the plaintiff. There is nothing to show that the plaintiff ever realised rent from any of them. Of course, he has stated that he had realised rent from one of the tenants and that also only once, but this statement is apparently false, as he could not name the tenant from whom he had realised the rent. In fact, he did not give out the names of the other tenants, who were in possession of the different portions of that building. This cannot be the natural conduct of a person, who claims to have come in actual possession of the entire building. On the other hand, two of the tenants, namely, Dr. Suleman Gosh Khan (DW 3) and Md. Nazir Alam (DW 4) have come to the witness-box to support the case of the defendants Nos. 2 and 3. Their evidence is that previously they used to pay rent to Md. Isa, but after the latter executed the sale-deed in favor of defendant Nos. 2 and 3 he asked them to pay rent to three defendants and both of them, accordingly paid rent thereafter to the father of these defendants, namely, Arif Hussain (DW 9). There appears absolutely no reason to reject the evidence of these witnesses and, in fact, the evidence of DW 3, who is a medical practitioner deserves due consideration. Then, the evidence of DW 9 shows that one of the Katras of the disputed building was vacant at the time of the sale and Md. Isa put him in direct possession of that Katra after the sale. He has also been supported by Jafer Imam alias Samiullah (DW 2), who is one of the sons of late Md. Isa, who died on 20-6-1974. Then, the names of defendant Nos. 2 and 3 were also mutated in the Circle Office and rent receipts were granted in their names. I find on the other hand, there is nothing to show that the plaintiff had ever taken steps for getting his name mutated anywhere. In such circumstances, it is not possible to accept the case of the plaintiff that Md. Isa had put him in possession of the entire building and that he had come in possession thereof on the basis of his Bayanama.
13. The conduct of the plaintiff otherwise also does not appear to be that of a normal and prudent holder of a Baibeyana deed. He has admitted in paragraph No. 25 of his deposition that he came to know about the sale-deed executed in favor of defendant Nos. 2 and 3 only a week after its execution, but, curiously enough, he did not enquire from Md. Isa as to why he had done so. He even did not go to defendant Nos. 2 and 3 or their father and in fact he never informed them about his own Beyanama. Normally, he was expected to rebuke Md. Isa for executing the sale-deed after executing a Beyanama in his favor, but, evidently, he kept mum over the matter. According to his own evidence he went to Md. Isa only in October, 1972, although the sale-deed was executed on 20-7-1972, and simply asked him to execute the sale-deed. Even at that time he did not question him as to why he had executed the sale-deed in favor of defendant Nos. 2 and 3. It is really difficult to believe that he simply told Md. Isa to execute the sale-deed in his favor in October, 1972 long after he came to know about the sale-deed in favor of defendant Nos. 2 and 3. Not only that, there is absolutely no mention about the sale-deed (Ext. B/1) in the notice (Ext. 4 ) said to have been sent by his Advocate to Md. Isa on 7-10-1972. In fact, this notice was quite premature, as, even according to the Beyanama of the plaintiff, Md. Isa was to execute the sale-deed till the end of January, 1973 and, so, there was no occasion for giving this notice to him on 7-10-1972. Normally such a notice is given only when the executants of the Beyanama fails to execute the sale-deed within, the time specified in the Beyanama, but here the position is different. Then, the reason given by the plaintiff for not getting the Beyanama registered is also not convincing, when he had paid Rs. 7,000/- in cash. Moreover on the explanation that he did not get the deed registered, as this was a transaction between uncle and nephew is hardly convincing, when the relationship between the two was not at all quite cordial, as according to his own evidence the plaintiff was not on visiting terms with Md. Isa.
14. Thus, on a consideration of all aspects of the matter, I find it difficult to place any reliance on the evidence of the plaintiff or his two witnesses (PWs 4 and 5) regarding execution of the Beyanama.
15. In fact the genuineness of the Beyanama is rendered doubtful by the endorsement on the back of its first page and the evidence of the Stamp Vendor, namely, Ram Udar Prasad (DW 12). This endorsement shows its serial No. as 7673 and the date of sale as 10.6-1972. According to the Stamp Vendor and his Register, the stamp bearing serial No. 7673 was sold on 29-11-1972 and not on 10-6-1972, and the stamp which is said to have been sold to Md. Isa on 10-6-1972 (Ext. 9) bears serial No. 2365. This stamp, according to the Register, is for Rs. 2/-. According to the plaintiff, the serial number on the back of the first page of Beyanama was 2365 which was interpolated to make it 7673, whereas, according to the defendants, the serial number is correct, but the date has been interpolated as showing 10-6-1972. This endorsement was not sent for examination to any expert and it is very difficult to agree with the plaintiff that 7673 has been interpolated, as no sign of interpolation appears to the naked eye. If the serial number was really 7673, this could not be sold to Md. Isa on 10-6-1972, of course, there is some cutting regarding the amount of the stamp sold under serial No. 2365, dated 10-6-1972, but it is difficult to reject the explanation given by the Stamp Vendor in this regard. It is true that Md. Isa has not explained as to why he had purchased the stamp worth Rs. 2/- on 10-6-1972, but, the simple reply of the learned Counsel for the defendants in this regard is that he had no occasion to do so, as there was no statement in this regard in the plaint and Md. Isa himself died before the evidence was recorded. No doubt PW 6, who is an Advocate's clerk, has tried to support the case of the plaintiff by stating that the serial number of the stamp as mentioned on the back of the first page of the Beyananama was 2365 which has been interpolated to make it 7673. He has stated that he had prepared a note of this Beyananama at the time of filing it in court, which note he had produced in court when he was recalled for further examination and has been marked as Ext. 10. This note is evidently not a true copy of the Beyanama and it is difficult to hold that this note is a genuine document. It has not been explained as to why this witness had made a note of the serial number on the back of the first page of the stamp, as it was not the main part of the Beyanama. It is obvious that he brought this note in existence at a much later stage only to support the case of the plaintiff and his evidence has been rightly rejected by the learned Subordinate Judge.
16. As stated above, it is very difficult to connect the stamp said to have been purchased by Md. Isa on 10-6-1972 with the Beyanama in question as the very talk of the execution of the Beyananama with the plaintiff had taken place for the first time on 14-6-1972, and it is not easily acceptable that Md. Isa would have purchased the stamp for this Beyanama on 10-6-72, when there was no talk about the execution of any Beyanama.
17. Apart from the above discrepancy regarding the serial number of the stamp, the genuineness of the Beyanama is rendered doubtful by the manner in which scribe has put his signature thereon. Although the scribe is said to have signed the document soon after scribing it, but the ink by which he put his signature is quite different from the body portion of the document. Indeed, the body portion is also not consistently written in one ink. The first page of the deed is in deep ink, whereas the other three pages are in much faint ink. The signature of the scribe is probably in the ink in which the top portion of the first page of the deed was written. Then, the signatures of the attesting witnesses are in different inks. Then as stated above, Abdul Razzak has signed in Deonagri script in his own pen, but from his deposition it appears that he has put his left thumb-impression thereon which would indicate that he is an illiterate. Then the ink in which he has put his signature is quite different from the ink used by other attesting witnesses.
18. Indeed, then the evidence of the expert examined by the plaintiff, namely, S. M. Anis Ahmad (PW 8), who has come to prove that the signatures appearing on the Beyanama tally with the admitted signatures of Md. Isa on different documents, is not quite convincing. Apart from the fact that he is only a matriculate and does not appear to have received any training in the art of hand-writing at any recognised institution, the reasons given by him for his opinion are also not convincing. At any rate, the learned Subordinate Judge was quite justified in not acting on the basis of his evidence in face of the evidence of the expert (DW 10) examined on behalf of the defendants. This DW 10 appears to be a well trained man in the science of hand-wring, as he had taken training at the Forensic Science and Technology at Calcutta for two years and thereafter he had taken a practical training of the science in the United Kingdom, He is also a Fellow Member of Royal Microscopical Society, London. He has also given good reasons for coming to the conclusion that the signatures appearing on the Beyanama did not tally with the admitted signatures of Md. Isa on various documents. The reasons given by him are much more convincing and I have also compared the disputed signatures of Md. Isa on the Beyananama with those on the admitted documents with my naked eyes, of course, with the help of magnifying glass, and found myself in agreement with the opinion of DW 10.
19. Thus, I find that the plaintiff has failed to prove that the disputed signatures of Md. Isa appearing on the Beyanama were actually his signatures. Then the facts and circumstances discussed above also render the genuineness of this Beyanama very doubtful and it is not possible to act on it.
Point No : II.
20. The sale-deed (Ext. A/1) said to have been executed by Md. Isa in favor of defendant Nos. 2 and 3 has been marked without any objection on behalf of the plaintiff. Indeed, its due execution has been proved by the son of Md. Isa (DW 2) and DW 9. This Md. Isa, who died before the evidence was taken up, has also admitted about its execution and passing of consideration in his written statement filed in the suit. There is nothing in the evidence adduced on behalf of the plaintiff to show that the sale-deed was without any consideration and even the plaintiff (PW 2) has not stated that this sale-deed was executed without any consideration. When the executants admits about the execution and passing of the consideration, it is really very difficult to accept the case of a stranger to the document, to wit, the plaintiff, that this document was not executed for consideration. In such circumstances, there appears no difficulty in holding that this sale-deed was duly executed by Md. Isa after receiving consideration money, as mentioned there under.
21. Now comes the question as to whether defendant Nos. 2 and 3 are bona fide purchasers without notice of the said Beyanama.
22. It has been submitted that if the building was not in actual possession of the vendor and a portion of it was admittedly in possession of the plaintiff, it was the duty of the purchasers to make enquiries from the persons in possession including the plaintiff and that the purchasers are bound by all the equities which the party in possession may have in the property if they failed to make any enquiry from them. It was further submitted that the possession of the plaintiff over a portion of the building in question would be sufficient notice to the purchasers of all the equitable interests including the interest arising out of a collateral agreement. It was pointed out that in the present case it is the admitted position that the father of the minor purchasers did not make any enquiry and, so, he shall be deemed to have purchased the building subject to the equities which the plaintiff possessed in the property on the basis of his Beyanama and, in any event, he cannot be called a bona fide purchaser without notice. In support of this submission reliance was placed on the decisions in the case of Balchmd Mahton v. Bulaki Singh A.I.R. 1929 Patna 284; Ramkrishna Singh v. Mahadei Haluai and Anr. I.L.R. (Vol. 44) patna 1965, page 596. and Basruddin Khan and Anr. v. Gurudarshan Das and Ors. 16 Vesey, Jun. 249 in which the principle of constructive notice has been applied for giving relief to the plaintiff. The principle of constructive notice is incorporated in Illustration II of Section 3 of the Transfer of Property Act which reads as follows:
Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
33. These three decisions, which are of Division Bench, no doubt, support the broad contention of the appellant, but the facts and circumstance of those cases are quite different from the facts and circumstances of the present case. In all those cases the plaintiff was in exclusive occupation of the land or building involved. In the present case the position is that there were and are six more tenants in the house besides the plaintiff and presumably they are in occupation of identical areas, as there is no evidence to indicate that the plaintiff was in occupation of a larger area than the other tenants. Indeed both the plaintiff and DW 3 were paying the same rent of Rs. 10 per month. In such circumstances, it may well be said that the plaintiff was in occupation of l/7th portion of the building which can be conveniently described as an insignificant portion of the building.
34. All these decisions are based primarily on the doctrine laid down in the case of Daniels v. Davison 16 Vesey, Jun. 249. The limits up to which this doctrine can be extended has been explained in a Full Bench decision of this Court in Hari Charon Kuar v. Kaula Rai 1917 Patna Law Journal Vol. 2, page 513 in which the following observation has been made:
...There appears to be no case in the books in which the courts have been asked to apply the doctrine of Daniels v. Davison (supra) to a case like the one before us in which the person who had the contract to purchase in his pocket was in possession not of the entire property sold to another but only of a small portion of that property.
The Full Bench did not apply the doctrine laid down in the case of Daniels v, Davison, and other English decisions on the basis of which the aforesaid three decisions have been given, as the plaintiff was in occupation of only a small portion of the property. In the case before the Full Bench the land sold to purchasers was 9 Bighas 10 Kathas, whereas the plaintiff was in possession of only 3 Bighas 15 Kathas out of that land. This would mean that the Full Bench did not apply the principle of those cases even when the plaintiff was in possession of a little over 1/3rd area of the land sold. If that principle could not be applied in a case where the plaintiff was in possession of more than 1/3rd of the property sold, it obviously cannot be applied in the present case where the plaintiff was in possession of only 1/7th of the property sold.
35. This view has been followed by a Division Bench of this Court in the case of Kesharmuli Agarwala v. Rajendra Prasad and Ors. 1968 B.L.J.R. 28. In this case it was observed as follows:
...Here, on the admission of the plaintiff himself, there were three persons in occupation of the disputed house. The plaintiff was occupying the shop portion at a monthly rental of Rs. 15/-. The inner portion of the house and the rooms were in occupation of the owner, namely, defendant No. 1, his mother and grand-mother. Another portion of the house was also at that time in the occupation of a doctor named Anand Karu Sarkkar. Under such circumstances the purchaser was not bound to make enquiry from every tenant in occupation of a portion of the house, especially when the owner himself was occupying a portion and enquiry had been made from him.
The legal position regarding burden of proof was also explained by the Division Bench and it was stated as follows:
...It is doubtless well settled that to defeat a suit for specific performance of contract the burden initially lies on the subsequent purchaser to prove want of notice. But, as pointed out in Ramchander Singh v. Bibi Asghari Begam and another this burden is somewhat light, and even a mere denial may suffice. Moreover, when both parties have given evidence, the question is ultimately one of appreciating the evidence, and any discussion about burden of proof becomes somewhat academic.
This very principle has been followed by a learned single Judge of this Court in Rameshwar Singh v. Hari Narayan Singh and Ors. A.I.R. 1984 Patna 277 where Ashwini Kumar Sinha, J. has summarised the law in this regard by stating as follows:
...It is thus apparent that the contesting defendant pleaded want of knowledge of the plaintiff's prior contract. Thus though the settled law is that the onus was upon the contesting defendant to prove that he was a bona fide purchaser for value without notice of the prior contract in view of the denial regarding want of knowledge of the plaintiff's prior contract by the defendants, the onus shifted on the plaintiff. In this view of law the two Courts below, in my opinion, very correctly threw the onus upon the plaintiff to prove the knowledge of prior contract on the contesting defendant.
36. Thus, the principle, which emerges from these decisions is that the principle of constructive notice, as incorporated in Illustration II of Section 3 of the Transfer of Property Act and the doctrine as laid down in Daniels v. Davison (supra) cannot be extended to a case in which the person basing his claim on the basis of a prior agreement is in possession of only a small fraction of the property which has been purchased by the purchasers and in such a case the purchasers cannot be said to be bound to make enquiry about the previous contract from the plaintiff or any other tenant in occupation of a portion of the house. In such an event the deeming clause of Illustration II of Section 3 cannot be attracted at all and the court cannot presume that the purchaser will have the notice of the title, if any, of any person who is for the time being in actual possession of only a small fraction of the property sold.
37. So, far the burden of proof regarding the plea of the purchasers being bona fide purchasers without notice of the prior contract is concerned, it is well-settled that to defeat a suit for specific performance of contract, the burden initially lies on the subsequent purchasers to prove want of notice, but this burden is somewhat light and even a mere denial may suffice for shifting the burden upon the plaintiff to prove that the purchasers had the knowledge about his prior contract before he purchased the property. In any event, when both the parties have given evidence, the question of burden loses its importance and the question is ultimately one of appreciating evidence.
38. In view of the principles of law stated above, it cannot be said in the present case that defendant Nos. 2 and 3 shall be deemed to have notice about the alleged agreement between the plaintiff and Md. Isa as the plaintiff was in possession of only 1/7th of the building purchased by the defendants. In any event, the initial burden of proof regarding want of knowledge of the alleged prior agreement of the plaintiff has been discharged by DW 9 who is the father and guardian of the purchasers by stating on oath that he had absolutely no knowledge about the said agreement before he purchased the building in question from Md. Isa. Ordinarily, one cannot expect any corroboration of such a denial and, in face of this denial, it was for the plaintiff to prove that in fact defendant Nos. 2 and 3 or their father had knowledge about his alleged agreement. The plaintiff (PW 2) himself is the solitary witness who has deposed on this point and he too has made only a vague and general statement in his examination-in- chief that these defendants and their father were aware of his agreement, but he has not explained as to how they could know about it. In the absence of any statement regarding any circumstance from which he could gather about their knowledge, it is difficult to accept his bald evidence in face of the denial of DW 9. The mere fact that DW 9 was also a resident of the same locality is not such a circumstance which alone can lead to the irresistible conclusion that he must be aware of the said agreement, specially when the locality is a big one comprising of a large number of houses. In such circumstances, the learned Subordinate Judge was quite justified in holding that defendant Nos. 2 and 3 and their father had no prior knowledge about the alleged agreement. When they had no prior knowledge about the said agreement, they cannot be bound by it and the plaintiff cannot enforce his agreement as against them, even if his agreement would have been a valid and genuine document, because a bona fide purchaser for value without notice cannot be bound by any prior agreement between his vendor and the plaintiff.
39. Thus, in any view of the matter, the plaintiff is not entitled to a decree for specific performance of contract. He also cannot claim a refund of the consideration money of the agreement, in view of the finding that his agreement is not genuine and valid.
40. For the reasons stated above, this appeal is dismissed with costs.