B SHAHZAD SINGH Vs. MTJIACHHA KUNWAR

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit for specific performance of a contract entered in an agreement dated 24 January 1874 between the predecessors of the parties. Two sets of persons agreed that in case of a contemplated transfer the property dealt with in the agreement was to be transfered to the other party for a proper price. On 30 July 1928 a deed of exchange was executed between the representatives of one of the parties and Mt. Jiachha Kunwar. The representatives of the other party brought a suit to enforce the previous agreement. Both the Courts below have dismissed the claim. The lower appellate Court has distinctly found that Mt. Jiachha Kunwar had no notice of this deed of agreement when she took the property for valuable consideration. (Here the judgment considered facts and evidence, and holding that the finding that Mt. Jiachha Kunwar had no notice of the deed must be accepted in second appeal, it proceeded). The learned advocate for the appellant relies on the Full Bench case of Aulad Ali V/s. Ali Athar . That case is undoubtedly an authority binding upon us that a contract of this kind not only binds the parties thereto but also their representatives. In that case one of the parties to the agreement was the defendant-transferor who obviously had knowledge. The transferee from him did not apparently plead want of notice, and this point was not pressed before the Full Bench which accordingly did not decide it.

(2.) IN the present case the transferee has been distinctly found to have been a bona fide transferee for value without notice. It seems to us that whether Section 37, Contract Act, or general principles of equity justice and good conscience applied to the heirs of the promisor, the transferee for value was protected. If the principles embodied in Section 40, T.P. Act, were applicable, even then the obligation cannot be enforced against a transferee for consideration and without notice of it, nor against the property in his hands. The contract in dispute was entered into in 1874, before the coming into force of the Transfer of Property Act, but after the Contract Act had been passed. It is clear that the specific performance of the contract can be enforced only under Section 27, Specific Relief Act, which section makes an exception in favour of a transferee for value who has paid his money in good faith and without notice of the original contract. We therefore think that no matter what principle or statute governs the obligation of the representatives, the provisions contained in Section 27, Specific Relief Act, must apply, and the defendant, who is a transferee for value without notice, is protected and the contract cannot be enforced against him. The plaintiff alleged that the transaction was one of sale, but the finding of the lower appellate Court that it was a transaction of exchange is conclusive against him. The suit has therefore been rightly dismissed and we dismiss this appeal with costs.