Musammat Domni vs Mahadeo and Another

Das, J.—This is an appeal on behalf of the defendant second party in a suit for specific performance of a contract to sell a certain property instituted by the plaintiff-respondent.

Two questions fell to be considered in the Court below: first, whether the plaintiff''s contract was prior in date to the conveyance in favour of the defendant second party; and secondly, whether the defendant second party was a bona fide purchaser for value.

The plaintiff''s case is that the defendant first party entered into a contract to sell the property to him on the 26th July 1920. The conveyance in favour of the defendant second party is dated the 17tn August 1920. The Courts below have come to the conclusion that the plaintiff''s contract was in fact entered into on the 26th July 1920. This disposes of the first question raised before me.

But it was contended by Mr. Hasan Jan that the plaintiff''s contract was not properly proved in the case. He says that that contract should have been registered in accordance with law and he relies upon the case of Valaji Isaji v. Thomas 1 B. 190 : 1 Ind. Dec. (N.S.) 126. The decision to which Mr. Hasan Jan refers was pronounced before the Transfer of Property Act came into operation. The basis of that decision is that a contract between the parties presently operates as a sale of the property. This no doubt is the law in England; and before the Transfer of Property Act came into operation, the Courts in India very often followed the rules of English Law in deciding disputes between the parties. But Section 54 of the Transfer of Property Act expressly provides that a contract for sale does not of itself create any interest in, or charge on, such property That being so, it can no longer be contended that a contract for sale operates as a sale of the property.

In my opinion, there is no ground for taking the view that the plaintiff''s contract should have been registered in accordance with law.

The next question is whether the defendant second party, the appellant in this Court, is a bona fide purchaser for value. The Courts below again have answered this question in favour of the plaintiff

It appears that one of the attesting witnesses to the conveyance executed in favour of the defendant second party gave evidence in the case and he stated that when he was asked to attest the document he informed the appellant that a contract had already been entered into between the plaintiff and defendant first party. In my opinion the Courts below were entitled to rely on this evidence and they did rely on it, and the finding appears to be a finding of fact But it was contended before me that the Courts below had no business to refer to this evidence inasmuch as the plaintiff in his plaint gave all the facts in connection with his case that the defendant second party had notice of his previous contract. It is contended that the plaintiff has stated in the plaint that actual notice was given to the appellant-defendant second party on the 17th August 1920 by a registered letter and that it was not open to the Courts below to ignore the positive case made in the plaint and to go to the evidence of Gopi for deciding this point. In my opinion this is not a correct way of stating what was in fact alleged in the plaint. It is alleged in the sixth paragraph of the plaint that defendant knew fully that defendant No. 1 had entered into a contract with the plaintiff to sell the land to him. It is no doubt not alleged that Gopi informed the defendant about if but then it is not necessary to set out the evidence in the plaint. The paragraph proceeds to say as follows: "Accordingly before the execution of the sale-deed the plaintiff sent a notice dated 17th August 1920 to Botal, son-in-law of defendant No. 2, and defendant No. 1 in registered cover. Botal lives along with defendant No. 2 and the plaintiff came to know that the deed of sale was to be executed in his favour."

In my opinion, there is no merit whatever in this case and I must dismiss it with costs in all the Courts.