1. This is a second appeal by defendant No. 3 against the judgments of the two lower Courts in favour of the plaintiff. Para (a) of the judgment was a mandatory injunction with reference to the property D of defendants Nos. 1 and 2. They have not appealed, and I need not therefore for the moment consider their case. Para (b) was a mandatory injunction against defendant No. 3 to block up a door on the western aide of his house E, and also in effect to alter the roof of his house by making it all slope towards the east instead of partly to the west and partly to the east as theretofore. Para (c) was an injunction to restrain all the defendants from entering the plaintiff's chowk or from taking any cattle there. What the plaintiff claims to be his chowk is shown in the suit plan. It abuts on the property E of defendant No. 3 and on the adjoining property D of defendants Nos. 1 and 2.
2. In the Courts below the real point of conflict was this, The plaintiff claimed property A, B and C including the chowk under a sale deed, Ex.45, of June 30, 1916; and defendant No. 3 claimed property D and rights over the chowk under a sale deed, Ex. 48 of July 12, 1919. The vendor in both cases was one Bai Manek, a Hindu widow- as guardian of her minor son. But as regards the later deed, Ex. 48, this was a sale by order of the Court, and accordingly the Nazir as the Mukhtyar appointed by the District Court on behalf of Bai Manek, (the guardian and mother of the minor), was the conveying party. In this second sale it was the Nazir who under the Court's orders had put the property up for sale.
3. Now it is quite clear that this second sale deed, Ex. 48, purported to grant to defendant No. 3 this house (which I have called property E) with also a right of passage over the chowk and a right to use the water supplied from a pipe in the chowk; and further that the latrine which is in the chowk was expressed to form part of the land conveyed to defendant No. 3.
4. But the adverse claim of the plaintiff was this : that by the earlier deed, viz., Ex.45, this very chowk had been conveyed absolutely to the plaintiff, and that moreover the then vendor Bai Manek had covenanted to block up not only the doors in the house D which she retained but also the window in the house E which was subsequently sold to defendant No. 3. Further there was a covenant by her in that sale deed to alter the eaves of [both the houses D and E in the way I have indicated, viz., by making the roof run solely to the east so that the rain water would not drop on the chowk but would drop on to the road on the eastern side of the property.
5. In appeal it was first contended that under the sale-deed, Ex. 45, the chowk did not pass to the plaintiff'. But after argument and a careful investigation of the precise terms of the sale-deed, Ex. 45, it was plain that that contention was untenable, and accordingly Diwan Bahadur Rao at a later stage said he could no longer contend that the chowk did not pass to the plaintiff, more especially as that point was practically conceded in the Courts below.
6. That being so, as regards para (c) of the injunction, it follows that the plaintiff being the absolute owner of the chowk is entitled to restrain any third person from trespassing on the chowk or using the latrine or the water supply there. Accordingly, in the view I take, it is unnecessary to refer to s. 48 of the Transfer of Property Act. That section refers to a case 'where a person purports to create by transfer at different times rights in or over the same immoveable property.' It may be that that section applies, but in the view I take it is unnecessary to determine it. Here the land itself was conveyed, viz., the chowk, So it is not a question of any mere 'rights.'
7. Next, taking para (b), viz., the mandatory injunction to block up the doors and alter the roof, that is an injunction of a serious character, and it requires to be considered under what jurisdiction the Court was acting when it made it. It has been contended that it was authorised under s. 40 of the Transfer of Property Act. That section undoubtedly applies where you get a restrictive covenant restraining or interfering with the use of land. One familiar instance is where a purchaser agrees that a building shall not be used, say, for a hotel, or that no building of any sort shall be erected on particular portions of the land. But in any event it is essential that an assignee of the original covenantor must have notice of the restrictive covenant if he is to be bound by it. That is settled law in England, and it is borne out by the final sentence in s. 40 of the Transfer of Property Act,
8. Had then the present purchaser defendant, No. 3, notice of this covenant, supposing for the sake of argument it can be called a restrictive covenant at all It must be borne in mind that the position at the date of the sale to him was that not only was the plaintiff' the then owner under the sale-deed, Ex. 45, of the lands A, B and C, but that also by mortgages executed after the date of Ex 45 he was a mortgagee in technical possession of those other properties D and E. According to the judgment of the trial Judge, there were three mortgages of July 3, August 18 and November 13, 1916, for in all a sum of Rs. 1,100 executed in favour of the plaintiff. Two at any rate of those mortgages are exhibited, viz., Ex. 55 and Ex. 56. As far as those mortgages are concerned, they contain no reference on the face of them to this covenant to block up the windows and alter the eaves. There are expressions in the judgment of the learned Subordinate Judge, and I refer in particular to page 11, line 25, which would lead one to think that these mortgages contained statements relative to those covenants similar to those contained in Ex. 45 itself.
9. We have ascertained by reference to the mortgages themselves that this is not so in fact. Accordingly if the defendant No. 3 had called for the production of the mortgages then existing on the property, he would have been told nothing about these covenants. Further, we have the evidence of the Nazir of the Court, and he deposes that he knew nothing whatever about these particular covenants. He is described by the learned trial Judge as an independent witness, and apparently the trial Judge believed him. But the lower appellate Court appears to have considered that the defendant was guilty of negligence in that he did not ask the plaintiff to produce his deeds not of the suit property E which was being sold, but of the adjoining property A, B and C. I refer to the observations at p. 2, line 40. The lower appellate Court held that as he did not do so he was guilty of gross negligence. With great deference to the learned appellate Judge, I think there is some confusion in this respect. A purchaser may be guilty of negligence in not enquiring for the title-deeds, or the earlier title of the property which he has contracted to buy. But how he can be guilty of negligence in not asking for the title-deeds of an adjoining property, which prima facie he has no right whatever to ask his vendor to produce, is a matter which I confess I cannot follow. After all, as between the vendor and purchaser, it was the duty of the vendor to disclose to the purchaser any covenant such as the one on which the present plaintiff was suing. A purchaser could never have anticipated that the vendor had not only entered into covenants to block up the windows and alter the roof but had also concealed the fact from the Nazir as well as from the purchaser.
10. Moreover, there is this extremely curious additional fact, viz., that the plaintiff who was entitled to the benefit of this covenant was also the mortgagee of the very property which was subject to the burden of this covenant, and yet he entered into mortgages which contained no reference to this covenant. In effect he stood by for some three years after the original date of the sale-deed to him without enforcing this covenant. Further when it came to the sale by auction, he allowed the property to be sold and conveyed just as if it had been a property unincumbered in any way so far as the alleged restrictive covenant is concerned.
11. Under these circumstances this question of notice is not a mere question of fact, the finding on which in the lower appellate Court might be binding on us, but it is a mixed question of law and fact. In my judgment, the decisions of the lower Courts are erroneous, and it is not proved that the third defendant, the purchaser, bought this property with notice of these covenants. I may also point out that the learned appellate Judge appears to think that the onus here was on the third defendant to show he had no notice. In fact the onus of proof was the other way, viz., on the plaintiff to show that the third defendant had bought with notice of the covenants.
12. But even if we had adopted a different view on the question of notice, there still remained one other extremely difficult point in the way of the plaintiff. This point is one which was not touched on in either of the lower Courts. But it is a very simple point based on the thoroughly well established principles laid down in Austerberry v. Corporation of Oldham (1885) 29 Ch. D. 750, viz., that the Court will not enforce against an assignee of a covenantor an affirmative covenant involving the expenditure of money on land, whether such assignee takes with or without notice. For instance, as against a transferee from a covenantor it will not enforce a covenant to keep roads in repair. In reply, Diwan Bahadur Rao referred us to the case of Smith v. Colbourne  2 Ch. 533, a case closely resembling the present one, for it was brought on an agreement to block up windows if and when so required. The English Court there held that that was an affirmative covenant involving the expenditure of money and therefore could not be enforced against a transferee even with notice I would add by way of warning that the above principles do not apply to covenants in leases Against this it was said that the above is English law, and that here we are governed by Indian law, and in particular on this subject by Section 40 of the Transfer of Property Act. Speaking for myself, I am reluctant to decide points of law unless it becomes necessary for one to do so. And in the view we take on the point of notice, it is unnecessary for us to decide this further point. I will only say, speaking for myself, that nothing in my judgment must be held to give rise to the view that I am in favour of the contention that in India an affirmative covenant involving the expenditure of money can be enforced in the class of case covered by Austerberry v. Corporation of Oldham (1885) 29 Ch. D. 750 or that that is the true construction of Section 40. Then there was one other point which I should have mentioned on the point of notice It was urged that Ex. 45 was registered. Now I will again point out that Ex. 45 dealt with the plaintiffs adjoining land and not with the suit property which was sold to defendant No. 3. If it had been necessary to go into that point, it might have been necessary to refer to Gordhandas v Mohanlal : AIR1921Bom161 where this appellate Court remanded the case to determine what notice a person would get if be inspected the register. But we think it unnecessary to take that course here, because, as I have said, we are dealing with the suit land, and there is nothing before us to show that if the defendant had searched the register as regards the suit land, he would have found anything to show him that in a conveyance of certain other land there were covenants which affected the suit property. The onus, as I have already said, was on the plaintiff here to establish the notice, and it is not shown that from any ordinary search in the register the defendant would have got notice of the covenant. Consequently the point of constructive notice must also fail.
13. Under these circumstances, the appeal will be allowed as regards the para (b) of the decree of the lower Court, and the injunction thereby granted will be discharged. As regards para (a) we think that the injunction must be modified, and that it had better be prefaced by a declaration to the effect that, on the true construction of the sale-deed of June 30, 1916, Ex. 45, (1) (1885) 29 Ch. D. 750 the chowk mentioned in the pleadings passed to the plaintiff. Then there will be a permanent injunction restraining all the defendants from entering the plaintiff's house or chowk or any part thereof (including the latrine in the chowk) or from taking any cattle there.
14. As regards the suggestion that if the door was not to be blocked up, defendant No. 3 might acquire a right of light, it would be quite simple for the plaintiff to stop that by placing a screen or other obstacle which would prevent any such right being acquired. And of course it follows from our judgment that defendant No. 3 will not be allowed to use that door for the purpose of either egress or ingress into or from the chowk.
15. I wish to add that we have not overlooked the possibility that if this case had been pleaded and argued differently in the Courts below, the plaintiff might have had difficulty in meeting pleas of laches, and also perhaps of estoppel or otherwise by reason of his alleged standing by while this property was sold. But having regard to the course which this case took in the lower Courts, we have not thought it proper to go into those points.
16. As regards costs, we will not interfere with the order of the trial Judge in so far as it directs the plaintiff to recover his costs of the suit from defendants Nos. 1 and 2. But as regards the costs as between the plaintiff and defendant No. 3 we would discharge all orders in the Court below, and direct that the plaintiff and defendant No. 3 respectively do each bear their own costs throughout of this suit in all Courts.
17. I concur that the appeal should be allowed in regard to the mandatory injunction contained in para (b) of the decretal order of the trial Judge, and that there should also be a variance of the injunction contained in para (v) of that order. The plaintiff has, in my opinion, entirely failed to show that defendant No. 3 had notice of the covenants contained in Exhibit 45 which are relied upon in this case. Unfortunately no issue regarding this question of notice was raised in the trial Court although defendant No. 3 in his written statement pleaded that he had no knowledge of the plaintiff's sale-deed, Ex 45 There was only the general issue whether the sale-deed, Ex. 45, was binding on defendant No. 3 in regard to this covenant. The trial Judge has not, so far as I can see, come to any definite finding on this point of notice. He has discussed the question whether the plaintiff was present at the auction and some other questions of that kind in para 15 of his judgment, but there is no definite finding that defendant No. 3 had such notice.
18. The Judge of the lower appellate Court has, however, held that there was gross negligence on the part of defendant No. 3, who might have got hold of the sale-deed, Ex. 45, from the plaintiff and informed himself of its contents, and he held that an inference accordingly arises that he knew of the deed and its contents. This finding seems to me to be based, as my learned brother has pointed out, on a misconception. I will only add that so far as the question of constructive notice goes, it was for the plaintiff to show that there had been on the part of defendant No. 3 wilful abstention or gross negligence of the kind mentioned in the last clause of Section 3 of the Transfer of Property Act. He was no doubt under a duty to have a search made in the Registration office in regard to the property that was being sold to him. But until it is shown that any such search would have resulted in this particular document, Exhibit 45, being traced, so that its contents would have become known to him, I do not think it can be said that there was gross negligence or wilful abstention within the meaning of this definition. The plaintiff could have produced an extract of the index kept under Section 55 of the Indian Registration Act, showing particulars that would have been ascertained if the defendant No 3 had made a search. Such an extract was in fact produced in the evidence on remand ordered by this Court in Gordhandas v. Mohanlal : AIR1921Bom161 and in view of that extract it was held that there had been 'notice.'
19. I do not think it necessary to go into the question whether Section 40 of the Transfer of Property Act applies to affirmative covenants involving expenditure of money of the kind referred to in my learned brother's judgment, although at the same time I quite agree with him that this question of Jaw should be decided, if it were necessary to do so. Probably in any case the Court, in the exercise of its discretion as to the grant of a mandatory injunction under Section 55 of the Specific Relief Act, would have regard to the principles laid down by the Courts in England in this connection.
20. As, however, in this case no 'notice' has been proved, the plaintiff is not entitled to say that defendant No. 3 is bound by this particular covenant.