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Gordhandas Vithaldas Vs. Mohanlal Maneklal Doshi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 249 of 1919
Judge
Reported inAIR1921Bom161; (1920)22BOMLR1158
AppellantGordhandas Vithaldas
RespondentMohanlal Maneklal Doshi
Excerpt:
covenant running with the land - covenant restricting the user of property-registration-notice-index in the registration records.;a covenant contained in an agreement whereby the owner of certain property restricts the ordinary user of his property does not ran with the land, and is cot binding on the purchaser unless he has notice. the registration of a document does not without more operate by itself as notice, if the property to which it refers is in the index of the register, so that on the purchaser inspecting the index can find it, then only it can be said that the purchaser had constructive notice of it. - - there seems to be a good deal of misapprehension about registration and its effect as notice......been argued, and i do not think it can be argued, that the agreement creates an interest in the defendants' property in favour of the plaintiff or an easement therein. it is merely a restrictive covenant by which the defendants' vendor restricted the ordinary user of his property. such a covenant would not run with the land, and would not be binding on the purchaser unless he had notice. the question of fact whether the defendants could have had notice of this particular agreement if they had inspected the register in the ordinary course has not been gone into in the trial court. no oral evidence was led. the defendants admitted execution of the document by their vendor, and the judge seems to have come to the conclusion from this that the plaintiff had knowledge of the agreement when.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to obtain certain reliefs by way of injunction against the defendants. He had obtained a decree in the trial Court which was upheld in first appeal. The defendants now appeal to this Court, and the real question is whether they had notice of the agreement which was made between the plaintiff and their vendor, it seems to have been assumed by both the lower Courts that because that document was registered, therefore the defendants must have had notice of it. It has not been argued, and I do not think it can be argued, that the agreement creates an interest in the defendants' property in favour of the plaintiff or an easement therein. It is merely a restrictive covenant by which the defendants' vendor restricted the ordinary user of his property. Such a covenant would not run with the land, and would not be binding on the purchaser unless he had notice. The question of fact whether the defendants could have had notice of this particular agreement if they had inspected the register in the ordinary course has not been gone into in the trial Court. No oral evidence was led. The defendants admitted execution of the document by their vendor, and the Judge seems to have come to the conclusion from this that the plaintiff had knowledge of the agreement when he bought the property. But unless the defendant would have found this agreement in the register when ho went to inspect the register, as he ought to have done us a prudent purchaser, it cannot be said that he had constructive notice. If the property to which this agreement refers is in the index of the register, so that on the defendant inspecting the index would have found it, then it can be said that the defendant had constructive notice of it. That is a question which can only be decided by taking evidence as to the state of the register, and . where this agreement was entered into. Therefore the following issues must go back to the trial Court:-(1) Whether the defendant had actual notice of the agreement in suit? (2) Whether he had constructive notice, that is to say, if he had inspected the register in the ordinary way as a prudent purchaser, would he have found this agreement? Findings to be returned in four months after the record reaches the trial Court. Otherwise as the appeal has succeeded the suit will be dismissed. As the plaintiff has been in fault, he must pay the costs in this Court and the Court below. The costs in the trial Court will be costs in the cause. Same order in Second Appeal No. 250 of 1919.

Heaton, J.

2. I agree. There seems to be a good deal of misapprehension about registration and its effect as notice. Registration does not necessarily give notice to anybody of anything. But if a registered document is so indexed that an inquirer anxious to ascertain whether there are documents relating to a property which he proposes, for instance, to buy, can find from the index documents relating to that property, then it will be held that he has notice of those documents; because if he made the inquiry, which as it prudent man he ought to make, then they would come to his notice. The particular document we are concerned with was not a transfer of any property, but an agreement. It is an agreement entered into by two persons, the vendor to the defendant and the plaintiff and it relates to two properties, the property belonging to the defendant's vendor and the property belonging to the plaintiff. How it is indexed in fact we do not know. The matter has never been inquired into. It is quite possible it might be Indexed in various ways. It might be indexed under the names of the contracting parties. That would not give notice for the purpose of this case. It might be indexed by a reference to the property belonging to the plaintiff and that again would not be notice for the purpose of this case. But if it is indexed in relation to the defendant's property, then no doubt it would be notice.


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