NASIB SINGH Vs. ANURODH SINGH

JUDGEMENT

(1.) THE following substantial questions of law arise for consideration this second appeal: -

(2.) WHETHER the courts below were not in error in finding the purchase in the names of defendants No. 3 to 5 as bona fide when the vendors were not in possession of the property and the plaintiffs being in possession as mortgagees along with subsequent purchasers, the latter were bound by constructive notice that the plaintiffs had some interest even apart from the mortgage and that a purchase without inquiring with the plaintiffs cannot be said to be bona fide?

(3.) IN this case, bona fides of the purchasers must be examined from the context of how the vendors themselves were not parties in possession at the time of agreement and at the time of subsequent sale. The plaintiffs and defendants No. 3 to 5 were in joint possession of the property as mortgagees. They were residents of the same village. The burden of proof under Section 19 of the Act shall be only on the defendants (See, Jagan Nath v. Jagdish Rai, : (1998) 5 S.C.C. 537). They must establish that they had made enquiries that there were no other claims by the plaintiff on the property at the time when the sale was taken. When the defendants knew that the vendors were not in possession and the plaintiffs themselves were in joint possession with them, law casts an obligation on such a subsequent purchaser to make inquires with co -mortgagee about any claim that he may have before defendants No. 3 to 5 concluded the transaction in their favour. In R K Mohammed Ubaidullah v. Hajee C. Abdul Wahab (D) By Lrs., : (2000) 6 S.C.C. 402, while detailing the nature of enquiry which a subsequent purchaser must make to qualify for bona fides, the court said that he was obliged to enquire the status of person in possession. If he did not make a proper enquiry, he would be deemed to have notice of the existing affairs and could not claims to be a bona fide purchaser. The 6th defendant has been examined in this case and he has projected a new story which was not supported by the pleadings. He attempted to say that he had an earlier agreement of sale which the court below has rightly rejected. Defendants No. 3 to 5 claim that the plaintiffs and the defendants were not in talking terms and the defendants, therefore, did not know about the agreement in their favour. It has been elicited through Karam Singh, the 6th defendants, the father of the vendees, that defendants No. 1 and 2 were demanding more amount for creating the additional mortgage with the plaintiffs, but they (the plaintiffs) directed the defendants No. 1 and 2 to Karam Singh. He did not also agree for the additional mortgage. If the 6th defendant, therefore, knew that defendants No. 1 and 2 were toggling between plaintiffs and himself for some extra funds, their plea that the plaintiffs were not willing to pay for an additional mortgage could not be without a verification from the plaintiffs themselves.