Patna High Court
Ramdeni Singh And Anr. vs Gumani Raut And Anr. on 27 February, 1929
Equivalent citations: 119IND. CAS.70, AIR 1929 PATNA 300
JUDGMENT Kulwant Sahay, J.
1. This is an appeal by the defendants and it arises out of a suit for specific performance of a contract. The plaintiff's case was that the land in dispute belonged to the defendant No. 1, who first gave it in rehan to a brother of the defendant No. 2. Thereafter the defendant No. 1 executed a rehan of the same land to the plaintiff for a sum of Rs. 1,000. The plaintiffs thereupon redeemed the previous rehan of the brother of the defendant No. 2 and got possession. The plaintiff then alleges that the defendant No. 1 took a further sum of Rs. 600 from him on the. 28th August, 1925, on the basis of a promissory note and there was a promise by the defendant No. 1 to sell the land to the plaintiff for Rs. 1,775 out of which Rs. 1,000 under the rehan and Rs. 600 under the promissory note and Rs. 50, taken as earnest money, were to be set off and the balance of Rs. 125 was to be paid in cash. An agreement called mahadanama was accordingly executed by the defendant No. 1 on the 23rd September, 1925, in favour of the plaintiff. The defendant No. 1, however, subsequently sold the lands to the defendants Nos. 2 and 3 by means of a deed of conveyance dated the 12th October, 1925, for the alleged consideration of Rs. 1,810. The plaintiff's case is that the purchase by the defendants Nos. 2 and 3 was with the knowledge of the contract with the plaintiff. He accordingly brought the present suit for specific performance.
2. The defence of the defendants Nos. 2 and 3 was that there was a previous agreement by the defendant No. 1 to sell the property to them on the 19th September, 1925, and that they took the conveyance of the 12th October, 1925, bona fide on payment of the consideration money and without notice of the contract with the plaintiff.
3. Both the Courts below have held that the contract with the plaintiff had been established and that set up by the defendants Nos. 2 and 3 had not been established and that the defendants made the purchase with knowledge of the plaintiff's contract. The learned Subordinate Judge has also held that the purchase by the defendants Nos. 2 and 3 was not a bona fide purchase for value and he does not believe that the payment of Rs. 810 was actually made by the defendants Nos. 2 and 3 to the defendant No. 1, the balance of the consideration, namely, the sum of Rs. 1,000 being alleged to have been retained by the defendants Nos. 2 and 3 for payment to the plaintiff to redeem his previous rehan.
4. In this second appeal by the defendants Nos. 2 and 3 it has been contended that the Court below has misplaced the onus of proof upon the defendants, and it is contended that the onus was upon the plaintiff to prove that the defendants Nos. 2 and A had knowledge of the contract. The answer to this argument is contained in the provision of Section 27 of the Specific Relief Act which provides that a specific performance of 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 is thus clear that the party who wants to take advantage of the exception has to prove it. It was, therefore, incumbent upon the defendants Nos. 2 and 3 to prove in the first instance that they were transferees for value and that they had paid their money in good faith and without notice of the original contract. This view is supported by the decision of this Court in Dharamdeo Singh v. Ram Prasad Sah 44 Ind. Cas. 470 : 4 P.L.W. 152 where it was held that in a suit for specific performance of a contract if the plaintiff proves his prior contract, the burden of proving a subsequent bona fide transfer for value without notice under Section 27(6) of the Specific Relief Act lies on the party alleging it. The same view was taken by the Calcutta High Court in Hem Chandra De Sarkar v. Amiyabala De Sarkar 84 Ind. Cas. 693 : 52 C. 121 : 40 C.L.J. 184 : A.I.R. 1925 Cal. 61. The learned Subordinate Judge was, therefore, right in throwing the onus upon the defendants to prove that they were transferees for value without notice of the original contract. Very little evidence on the part of the defendants of want of knowledge of the plaintiff's contract would have discharged this onus and shifted the onus on the plaintiff, but in this case the defendant No. 2 who gave his evidence does not even say on oath that he was not aware of the plaintiff's contract.
5. There is another finding of the learned Subordinate Judge which is fatal for the defendants Nos. 2 and 3, namely, the finding that it has not been proved that the defendants Nos. 2 and 3 have paid the consideration money to the defendant No. 1 and that it has not been proved that they were bona fide purchasers for value. Under Clause (b) of Section 27 it is only a transferee for value who has paid his money in good faith and without notice of the original contract, who can avoid the specific performance of a contract. The finding here is that the defendants Nos. 2 and 3 are not purchasers in good faith.
6. Mr. Shiveshwar Dayal takes an additional points which does not appear to have been taken in the Court below, namely, that the plaintiff being admittedly in possession it was the bounden duty of the defendants Nos. 2 and 3 to inquire from the plaintiff as regards the nature of his possession before hey could be held to be bona fide purchasers or value, and reference is made to Faki Ibrahim v. Faki Gulam Mohidin 60 Ind. Cas. 986 : 45 B. 910 : 23 Bom. L.R. 335 and also to observations of Jenkins, C.J., in Baburam Bag v. Madhab Chandra Pallay 19 Ind. Cas. 9 : 40 C. 565 : 18 C.W.N. 341, There is a good deal of force in this argument as well. Mr. S.M. Mullick has contended that if the basis of the title under which the plaintiff was holding possession was known to the defendants Nos. 2 and 3, it was not incumbent upon them to make any further inquiry. But on reference to the deposition of defendant No. 2, a copy of which has been furnished to us, it appears that the defendant No. 2 was aware that the plaintiff had a rehan from defendant No. 1 but was not aware as regards the land which was given in rehan. In other words, he was not aware whether the land held in rehan by the plaintiff was the land he purchased. Under the circumstances, it was incumbent upon him to inquire the title under which the plaintiff was holding possession of the land in dispute.
7. Having regard to the findings arrived at by the Courts below, it is clear that there is no substance in this appeal and it must be dismissed with costs to the plaintiff-respondent.
8. Mr. S.M. Mullick asks that we should direct that in the events of the plaintiff depositing the balance of Rs. 125 in Court that sum should be paid to the defendants Nos. 2 and 3, who are admitted by the defendant No. 1 to be the purchasers and not to the defendant No. 1. Having regard to the admission of the defendant No. 1, it is only fair that the sum of Rs. 125 be paid to the defendants Nos. 2 and 3 if and when deposited in Court by the plaintiff for the execution of the conveyance.
Chatterji, J.
9. I agree. A mere denial may, in the circumstances of a particular case, shift the burden of proof on the plaintiff in the matter of notice but there is even no such denial on oath in the present case.