ZAVERCHAND KHIMCHAND Vs. JESANG NARAN

JUDGEMENT

(1.) The question in this appeal is whether the defendant-respondent is entitled to payment from the plaintiffs-appellants. The defendant-respondent was the prior purchaser of an unrecognized portion of a bhag from the bhagdar, the consideration being a part of previous debts due on promissory notes. The appellants are subsequent purchasers of the entire bhag and sued for possession from the respondent. The trial Court held that the appellants had no notice of the sale in favour of the respondent and decreed the claim. In appeal by the defendant the lower appellate Court held that the plaintiffs had constructive notice and were not entitled to recover possession unless they paid into Court the amount of the consideration recited in the respondent's deed. The plaintiffs appeal.

(2.) It is argued for the appellants that the alienation in favour of the respondent being not merely voidable but forbidden by the Bhagdari Act and void there was, strictly speaking, no equitable right to repayment in favour of the respondent even as against the vendor, much leas against the appellants, and therefore the question of constructive notice did not really arise. In any case the view of the trial Court was right and the lower appellate Court wrong that the appellants made inquiries and purchased bona fide without notice, and were entitled to possession without payment. It is contended for the respondent, firstly, that the appellants had notice, secondly, the Courts had power to award compensation even from the subsequent purchasers, the appellants, and not merely from the original vendor, and, thirdly, the discretion was properly exercised and the order of compensation was correct.

(3.) It is undoubted that the deed in favour of the respondent was not merely voidable but was opposed to the express law and void. On the question of notice the facts as found by both the Courts are that the appellants inquired of the vendor Bhagvan and of the talati who assured them and correctly that the respondent was entered in the record of rights as a tenant. The appellants, however, failed to inquire of the respondent, and under Section 3 of the Transfer of Property Act the question before the Courts was whether this abstention from inquiry from the respondent was willful or was gross negligence sufficient to constitute constructive notice. It is argued for the respondent that in England from the case of Daniels V/s. Davison (1809) 16 Ves. Jun. 249, which has been followed in India, possession has been held to be cogent evidence of notice: Sharfudin V/s. Govind (1902) I.L.R. 27 Bom. 452, 469, 473, s.c. 5 Bom. L.R. 144. Inquiry from the vendor and not from the person in possession is not sufficient: Magoo Brahma V/s. Balkrishna Das (1913) 18 C.W.N. 657. It is contended for the appellants that the onus is on the respondent, Peerkha V/s. Bapu , distinguishing Himatlal Motilal V/s. Vasudev Ganesh (1912) I.L.R. 36 Bom. 446, s.c. 14 Bom. L.R. 634.