GANPAT KADTAJI Vs. SHAMLAL BISANDAS

JUDGEMENT

(1.) . 1. Defendant Ganpat, whose transfer was affected by the doctrine of lis pendens as against the plaintiff Sham lal, redeemed the prior incumbrance dated 20th April 1910 for Rs. 1,500 by payment of Rs. 1,500 to the mortgagee Anantram Mangalchand of Pipri on 7th March 1917. The plaintiff, who had made a contract of purchase of field No. 8 on 3rd December 1909 with his vendor Chandrabhan, sued for specific performance of that contract of sale and obtained a decree on 12th November 1913 and secured a registered conveyance through Court and tried to enter into possession thereof, but was resisted by the defendant Ganpat. By a chain of transfers. Ganpat acquired a title to the said field which originated in a sale made by Chandrabhan on 16th September 1916 in favour of Nemichand. But the sale being subsequent to the passing of the decree dated 12th November 1913 against him even the sale in favour of defendant Ganpat was invalid and could not affect the rights of the plaintiffs. But as the present defendant Ganpat's predecessor-in-title, Nemichand, had satisfied the incumbrance dated 20th April 1910, so far as field No. 8 was concerned by the aforesaid payment of Rs. 1,500 he claimed subrogation and asked that, if he was not entitled to resist plaintiff's right to possession as owner, he should be held entitled to be subrogated to the position of the mortgagee Anantram and be reimbursed with the amount which was paid for freeing field No. 8 from the mortgage incumbrance.

(2.) ACCORDING to the plaintiff, defendant Ganpat was not entitled to be reimbursed with the amount spent by him in redemption as his sale was invalid and his payment was officious or at any rate one made by him in performance of his own undertaking. On the other hand the defendant Ganpat's contention is that the plaintiff is not entitled to oust him from possession as it was never pleaded by him that his transfer was with notice of his prior contract of sale and that, in any case, the price of redemption paid by him, namely, the whole of Rs. 1,500 should be made good to him as a condition precedent to his being ordered to vacate possession in plaintiff's favour. In short, there should be no apportionment or proportionate reduction of the amount payable to him in this suit.

(3.) GANPAT 's predecessor-in-title, Nemichand, acquired no rights as a purchaser as against the plaintiff. It is for the transferee for value to plead and prove that the purchase was without notice of the prior contract of sale. This is clear from Section 27(61), Sp. Rel. Act. The law will impute notice to the subsequent transferee, of the prior contract of sale, so as to prevent him (subsequent transferee) from asserting his rights as against a prior contracts whose rights have germinated in a prior contract of sale. The transfer to defendant Ganpat's predecessor-in-title cannot, therefore, have any precedence over plaintiff's. The result, therefore, was that so far as the transfer of equity of redemption and the right to possession was concerned they became effectively transferred to plaintiff by virtue of the decree and conveyance enforcing the contract instead of to the defendant Ganpat's predecessor, Nemichand. The title of Nemichand as purchaser, therefore, failing, Ganpat's title also failed and he was rightly held liable to hand over the purchase to plaintiff.