FAKI IBRAHIM Vs. FAKI GULAM MOHINDIN

JUDGEMENT

(1.) The plaintiff sued to get a sale-deed of the plaint-property executed, alleging that the defendant No. 1 had agreed to pass a sale-deed in his name on the 4th Marsh 1917, but afterwards refused to convey the plaint property to the plaintiff. The 2nd defendant relied upon a sale-deed executed by the 1st defendant in his favour on the 19th January 1918. It is admitted that the plaintiff was in possession, and that the 2nd defendant knew that the plaintiff was in possession, and made no inquiry as to the circumstances in which the plaintiff was in possession.

(2.) The Trial Judge dismissed the suit on the ground that the 2nd defendant had no notice, actual or constructive, of the contract between the 1st defendant and the plaintiff. The plaintiff had been in possession since 1914, and admittedly was a mortgagee. The learned Trial Judge seemed to think that, although defendant No. 2 might be fixed with notice of the plaintiff s possession as mortgagee, be could not be fixed with the notion of the agreement to sell. In appeal, this decision was confirmed. The same distinction was made by the learned Appellate Judge, namely, that the constructive notice would only be of the plaintiff s holding as mortgagee and nut as a person having an agreement to sell from the 1st defendant.

(3.) Now in Manchorai Sorabi Chulla v Kongseoo 6 B.H.C.R. (O.C.J.) 59 it was held by Chief Justice couch that the English authorities on the question were applicable where a person bought an estate of which some one, not the vendor, had possession. The leading case cited was Daniels v. Damson (1809, 11) 433 : 10 R.R. 171, in which the Lord Chancellor held that: Where there was a tenant in possession under a lease, or an agreement, a person purchasing part of the estate, must be bound to inquire, on what terms that person was in possession that this tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether gave him an equity repelling the claim of a subsequent purchaser, who made no inquiry as to the nature of his possession.