NAUBAT RAI Vs. THAKUR DHAUNKAL SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract alleged to have been made by the defendants Nos. 1 and 2 in favour of the plaintiff. The alleged contract is dated the 24th of December 1910. It was for the sale of a village called Bimpur Khurd for the price of Rs. 21,000. As part of the consideration the purchaser was to be entitled to set off the amount due for principal and interest upon a certain promissory note, dated the 15th of December 1910. It appears that the village had already been sold in execution of a decree against the vendors and the sale was conditional upon this auction sale being set aside. The auction-sale, we may here mention, was subsequently set aside under a Compromise. In the Court below defendants Nos. 1 and 2 pleaded that there was no real intention ever to sell the property to the plaintiff, but that the transaction between them (which admittedly was executed) was merely for the purpose of strengthening the application to set aside the auction sale on the ground of inadequacy of price. The defendants Nos. 3 and 4 (who are appellants here) pleaded that they were bona fide purchasers without notice under a sale- deed dated the 26th of July 1912. They further pleaded that inasmuch as at the time of the alleged contract with the plaintiff the property had already been sold by auction sale the contract was void. The Court below has found that there was no solid foundation for the plea of the defendants Nos. 1 and 2.

(2.) They have not appealed and there is now no controversy on the question of the genuineness of the contract of sale made in favour of the plaintiff. The Court below has found that Naubat Rai and Nek Ram were aware of the sale to the plaintiff and has accordingly decreed the plaintiff s claim. In appeal it has been urged that the evidence of knowledge of the defendants is unreliable and unsatisfactory. It is further urged that having regard to the provisions of Section 50 of the Registration Act the registered sale-deed in favour of the appellants must have preference over the unregistered contract in favour of the plaintiff and that the onus lay upon the plaintiff of showing that the appellants had knowledge of the contract of sale There is evidence on the record that Naubat Rai (who had the sale carried but on behalf of himself and his co-purchaser) was actually present at the time the contract in favour of the plaintiff was made and executed. Apart from this it appears that Naubat Rai has two brothers, Banke Lal and Gulzari Lal. They all then lived together. Banke Lal is the patwari of the very village which was sold It has been sworn to by a witness that not only Naubat Rai but this man Banke Lal was present at the time that the contract of sale was made in favour of the plaintiff. It is almost certain that Banke Lal knew of the contract. Banke Lal was not produced. There can be little doubt that these circumstances weighed very much with the Court below when it came to its decision that Naubat Rai and his co-purchaser knew of the contract in favour of the plaintiff. It is of some importance to consider the point of law raised by the appellants. No doubt if the onus lay on the plaintiff of showing that Naubat Rai and Nek Ram were aware of the sale and if we were confined to a consideration of the oral evidence and had to disregard surrounding circumstances and probabilities, the case might present some difficulty. It seems to us, however, that the contention of the appellants that their sale-deed must be preferred to the unregistered contract in favour of the plaintiff has no force. Section 50, Clause (1), of the Registration Act of 1908 no doubt provides that a document duly registered takes effect against every unregistered document relating to the same property, whether such unregistered document be of the same nature as the registered document or not. But Clause 2 expressly provides that the section shall not apply to any document mentioned in Sub-section 2 of Section 17 of the Act. One class of documents mentioned in Clause (2) of Section 17 is "any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of Rs. 100 and upwards to or in immoveable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title, or interest." It seems to us that this class includes, a contract for sale. If then the provisions of Section 50, Clause (1), of the Registration Act have no application, we have to look to Section 27 of the Specific Relief Act to see what are the rights of the parties. That section provides as follows: "Except as otherwise provided by this chapter, specific performance of a contract may be enforced against (a) either party thereto; (6) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original-contract."

(3.) It seems to us that regard being had to the provisions of this section the onus lay upon the appellants to show that they had no notice of the contract in favour of the plaintiff. Having regard to the evidence in the case and the surrounding circumstances, we have no doubt whatever that the appellants (or at any rate Naubat Rai who acted for himself and his co-purchaser) were fully aware of the contract for sale in favour of the plaintiff. The result is that the appeal fails and is dismissed with costs including in this Court fees on the higher scale.