KULDIP SINGH Vs. STATE

JUDGEMENT

(1.) The facts giving rise to this reference by my learned brother Soni J. are given in his order of 21-7-1953, and are briefly as follows. Moti Parshad brought a complaint against the petitioner Kuldip Singh alleging that he had been cheated of a sum of Rs. 4,000/-. The facts alleged by him were that Kuldip Singh agreed to sell him an area of land for a sum of Rs. 4,000/- and represented that this land was free from all encumbrances. Kuldip Singh was paid a sum of Rs. 2,000/- on 10-6-1948, and by way of receipt he executed a document Ex. P. A. In Ex. P. A. Kuldip Singh mentioned quite clearly that the land was free from all encumbrances. The sale deed was to be registered within a period of one year and it was in fact executed on 24-4-1949. In the sale deed Kuldip Singh again recited the fact that the land was free from alt previous encumbrances. In point of fact the land formed part of a larger area the whole of which was mortgaged on two previous occasions, once in favour of Amar Singh for a sum of Rs. 1,20,000/- and a second time in favour of Kidar Nath for a sum of Rs. 82,000/-. Amar Singh filed a suit for the realisation of his mortgage money by the sale of this property and obtained a decree. In execution of the decree the land was sold and since Amar Singh's claims were not fully satisfied the complainant Moti Parshad lost his land and the money he had paid for it. It was then that he brought the present complaint against Kuldip Singh,

(2.) Kuldip Singh's defence was that he had not made any representation to the complainant that the land was free from encumbrances. A further point argued on his behalf was that since the previous mortgages were effected by means of registered deeds the complainant must be presumed to have had notice of these transactions and so it could not be said that Kuldip Singh had been guilty of any dishonest concealment or any dishonest representation. This defence was repelled by the learned Magistrate and Kuldip Singh was convicted and sentenced to three months' rigorous imprisonment. An appeal was filed in the Court of the Additional Sessions Judge, Ambala, but this appeal failed. When the matter came up in revision before my brother Soni J. the law point was once again argued and it was contended that the registration of a document which must under law be registered is constructive notice to the whole world and, therefore, Moti Par-shad must be deemed to have had notice of the previous mortgages, and, therefore, it could not be said that Moti Parshad had been cheated since, in law, he already knew the factum of the previous charges. My brother Soni thought that this point was of some importance and should be considered by a larger Bench and we have, therefore, heard arguments of counsel on this point and also the other points arising in the case.

(3.) The argument of Mr. Sibal who appeared on behalf of the petitioner is based on the wording of Sections 3 and 55, T. P. Act. Explanation I to Section 3 reads as follows :