HIMATLAL MOTILAL Vs. VASUDEO GANESH MHASHAR

JUDGEMENT

(1.) With regard to the first question we have to decide, namely, the question upon whom lies the onus of proof in this case, it appears that the plaintiff s agreement to purchase the property in question from defendants 1 and 2 is dated 9th February 1906. The agreement of defendants 1 and 2 with defendants 3 and 4, who are the purchasers of the same property (Exhibit 65), is dated the 21st May 1906. The defendants 3 and 4, therefore, having contracted to purchase the property from the same defendants who had contracted to sell it previously to the plaintiff must show three things : that they are purchasers for value, and bona fide, and without notice: see Mulji Jetha & Co v. Macleod (1903) 5 Bom. L.R. 991. The plaintiff under his contract has a prior equity. In Varden Seth Sam v. Luckpathy Royjee Lallah (1862) 9 M. I. A. 307, 326, 327, it was said :- The question to be considered is, whether the third and sixth defendants respectively possessed the land free from that lien, whatever its nature. As one who owns property subject to a charge can, in general, convey no title higher or more free than his own, it lies always on a succeeding owner to make out a case to defeat such prior charge. Let it be conceded that a purchaser for value, bona fide, and without notice of this charge, whether legal or equitable, would have had in these Courts an equity superior to that of the plaintiff, still such innocent purchase must be, not merely asserted, but proved in the cause, and this case furnishes no such proof." This passage in the Privy Council judgment certainly seems to conflict with the statement of the law set out by West J. in Lalubhai Surchand v. Bai Amrit (1877) I. L. R. 2 Bom. 299, 309 where he refers to several authorities in support of the proposition that in cases such as the present it is for the plaintiff to prove the notice. But it must be remembered that the burden of proof is not always a standing quantity. And West J., at the bottom of page 303, says:-"The purchaser pleading absence of notice is held strictly to proof of the payment, that being an affirmative matter ; but when he has thus far established his good faith, it devolves on the opposite party to prove notice or the circumstances from which the Court may infer a knowledge or means of knowledge of the previous transaction.

(2.) In this case, therefore, it devolved upon the defendants 3 and 4 to prove payment of the consideration before they got notice of the plaintiff s contract. And the question has arisen whether that means payment of the whole consideration money or whether the position of defendants 3 and 4 is not made secure by reason of their conveyance having been registered, when it was, and part payment made by them before they got notice of the plaintiff s contract. The defendants contract was registered on the 22nd May 1906. Possession was delivered to them on the 26th May 1906. Before this suit was filed it appears that Rs. 2,500 exactly was paid by them to defendants 1 and 2. The summons in the suit was served upon them on the 9th August 1906. As security for the payment of the residue of the purchase-money they had given Chithis for Rs. 6001 and Rs. 4224 and they appear to have paid off those Chithis subsequently. It must be taken, therefore, that they had notice, in any event on the 9th August 1906, when the summons was served upon them, as I have said.

(3.) Mr. Rao, in arguing for defendants 3 and 4, laid great stress upon the fact of registration, but, in our opinion, that point does not avail him : see Chunder Kant Roy v. Krishna Sunder Roy (1884) I. L. R. 10 Cal. 710. The head-note of that case is as follows:-" Where a bona fide contract, whether oral or written, is made for the sale of property, and a third party afterwards buys the property with notice of the prior contract, the title of the party claiming under the prior contract prevails against the subsequent purchaser, although the latter s purchase may have been registered, and although he has obtained possession under his purchase." After referring to a case, Nemai Charan Dhabetl v. Kokil Bag (1880) I. L. R. 6 Cal. 534, to which, however, Section 27 of the Specific Relief Act did not apply, their Lordships set out Section 27 of that Act, and say, " this shows, that where a party has notice of a prior contract for sale, he cannot, by any purchase that he may subsequently make, over-ride it."