1. This appeal arises out of a suit for specific performance of a contract to sell certain property by the plaintiffs-respondents Sripat Rai and others, the owners of the property.
2. The suit was brought by the plaintiffs on the allegation that Ramsurat Rai had executed an agreement to sell the property in suit on 18th January 1923. The alleged agreement was that the property would be sold within ten days for a consideration of Rs. 5,099 set off against previous debts which the vendee would pay at all events and for Rs. 99-15-9 earnest-money. There is some contradiction in the terms of this agreement, because in one part it is stated that the whole consideration was Rs. 5,099 whereas reading the deed as a whole, it would appear to be Rs. 5,099 plus Rs. 99-15-9 earnest-money. This discrepancy, however, does not appear to me to be of any importance. The plaintiff went on to state that on 28th August 1923, Ramsurat Rai had sold this property and other property to the defendant Kirtirath Rai and others for a cash payment of Rs. 2,500. In this case it appears that the vendees were to take the property with the risk of any encumbrances attaching to it. The reason given in the plaint for the owner of the property selling the property to Kirtirath Rai in spite of having agreed to sell it to the plaintiffs is said to be a desire to cause the plaintiffs and other creditors loss. Although it is difficult to demonstrate positively that the sale to Kirtirath Rai was more valuable to Ramsurat Rai than the sale which the plaintiffs allege was agreed upon by him, on general considerations it is probable that the sale impugned by this suit must have been considered by the vendor more to his advantage. The vendor was at least getting Rs. 2,500 in cash, whereas under the agreement he would only get Rs. 99 in cash. It is true that the property for which he was getting Rs. 2,500 exceeded the property for which he would get Rs. 99 in cash, but it would appear probable that this extra property was encumbered. It is unlikely that the vendor would have acted against his agreement unless he obtained a better price than he could by that agreement.
3. The suit was resisted on two grounds. One ground was that the agreement was a forgery in the sense that it was never executed by the defendant Ramsurat Rai. He made the usual allegation that he signed a blank paper. The blank paper, he said, was to have contained a mere bond for Rs. 20 odd. It is obvious that before such a story can be accepted on the part of the defendant there must be very cogent evidence. In this case little reliance has been placed on this plea by the appellants, and I am not disposed to accept it. The other ground on which the decision of the Subordinate Judge is contested is that the appellant, that is to say, the vendee under the second deed, had no notice of the former deed, and this is the real question in this appeal. On this point the Subordinate Judge has used the following language in his judgment:
I have no doubt the vendees had knowledge of the agreement when they got the sale-deed executed. The evidence on the plaintiffs' side shows this. On the other side the statement on this point is that of Raja Ram alone. The burden of want of knowledge lay on the defendants. In my opinion the defendants had knowledge of the agreement with the plaintiff
4. Now the evidence on which the Subordinate Judge based the remarks is as follows: The plaintiffs through the mouth of Sakhraj Rai, one of them, stated that he was told of the proposed sale to Raja Earn by two persons, Maheshwar Rai and Raghunayak, and thereupon took the agreement executed in his favour to Raja Ram and showed it to him. Raja Ram said then that he would not proceed with obtaining the sale-deed. In cross-examination Sakhraj said that Raghunayak and Maheshwar gave him the information severally, and that there was no third person present on either occasion. He did not remember the date when they told him. Now, ordinarily, I should hold that when a plaintiff suing for specific performance under Section 27, Specific Relief Act, stated in the proceedings that he had given notice to the defendant vendee it was for that vendee to shake his statement by cross-examination.
5. In this case, however, it appears to me abundantly clear that Sakhraj Rai has attempted by his answers to certain preliminary questions in the cross-examination to make it impossible for the vendee to cross-examine effectively on this point. He says that his two informants came separately and no third person was there. He only put up one of these informants as a witness named Maheshwar. He did not remember the date when they told him. His evidence seems to suggest, that he straight away went to object to the vendor. It may be assumed, therefore, that the day that he gave notice to the vendor was the same date as that on which he was spoken to by Raghunayak and Maheshwar. He did not remember this date. Everything seems to have been said by him with a view to exclude cross-examination. In the circumstances I hold that the vendee cannot be prejudiced by not having asked in cross-examination questions to shake the affirmative statement of Sakhraj Rai. On the other hand, Raja Ram came into the witness-box and denied that he had received notice. It is necessary, however, to point out that it is not only Sakhraj Rai who alleged having given notice to the vendee. His witness Maheahwar Rai, states that the vendee came to him and asked him to join him in the purchase, and he refused because be knew of the agreement in favour of the plaintiff. But this witness appears open to the objection that no reason whatever has been shown why he should be requested by the vendee to join him in the purchase. He had to admit in cross-examination that he had not joined Raja Ram in any other transaction, and gave no reason why he should be especially asked to join him in this case. In these circumstances I am of the opinion that the plaintiff's evidence to show notice is of a very unreliable kind and would be sufficiently met by the denial of Raja Ram on oath.
6. I should ordinarily have felt disposed to give considerable weight to the Subordinate Judge's estimate of the evidence inasmuch as he actually heard the witnesses, but the Subordinate Judge has not stated that the demeanour of the witnesses impressed him one way or the other. He seems to have thought that because two persons on behalf of the plaintiffs spoke of notice, and only one person on the side of the defendant denied notice, the plaintiff must succeed on the point. This argument is not in any case of much weight, but in this particular case, as remarked above, the two persons on behalf of the plaintiffs spoke of totally different proceedings. So neither could be tested against the other by cross-examination. Moreover, one of them is open to the objection that he has by his answers precluded all chance of being shaken in cross-examination and the other one is open to the objection that he alleges an improbable thing, namely, that he was asked to join the vendee in the sale without giving any satisfactory reason, indeed any reason whatsoever, for such an improbability taking place. I would note that the judgment in this case by the Subordinate Judge was recorded a month and a half after the evidence was recorded, and this is an additional reason for my not giving much weight to the apparent impression made on him by the witnesses. The only reason for holding that the witnesses did make an impression on him is that he decided the case in favour of the plaintiffs. But the language in the judgment seems to ascribe this decision to another reason, namely, the fact that two witnesses spoke for the plaintiffs and only one for the defendant, a reason which I haves already answered.
7. The counsel for the respondents has addressed to us an argument not adopted by the Subordinate Judge. It is that in a village like the one where this transaction took place the agreement by the vendor in favour of the plaintiffs could not have taken place without being known to other persons. The village appears from the Gazetteer to have had over 12,000 inhabitants in 1908. The houses of the respective parties appear to be separated by an arm of the river and the two portions of the village bear different names, one being called the main village and other the small village. In these circumstances little force will attach to this argument. Apart from this, it is quite clear to me that where a person has to prove that notice has been given to another person, the mere fact that the transaction in question might have been known to a considerable number of people will not amount to the necessary proof. It has also been contended by the appellant's counsel that the Subordinate Judge was quite right in placing the burden of proof on the respondents. There is no doubt considerable authority of the Courts in India in support of this view. Personally I hold that where a plaintiff is seeking to take advantage of Section 27, Specific Belief Act, it is for him to show that he is entitled under every word of that section to the relief claimed. In the present case the matter is of no great importance as there has been evidence adduced on both sides and it is not a question of an initial burden of proof.
8. Taking this view of the case I consider that for me to refuse to dissent from the finding of the lower Court as to notice merely on the ground that the lower Court heard the evidence would in effect amount to hold that there can be no first appeal on a matter of fact. For the above reasons I would allow this appeal and dismiss the suit with costs throughout.
9. I concur in the conclusion.
10. As regards the question of burden of proof, it seems to me that under Section 27, Sub-clause (b), Specific Belief Act, a contract can be enforced not only against a party thereto but also against any other person claiming under him by a title arising subsequently to the contract. There is however, an exception in favour of a transferee for value who has paid his money in good faith and without notice of the plaintiffs' contract. From the language of this section it is clear that any person who wishes to bring himself within the exception must in the first instance show that he is entitled to that exception. I expressed the same view in my dissenting judgment in first Appeal No. 183 of 1919, decided on 25th May 1923, where I quoted cases of all the High Courts in support of that view. Out of these I may only refer to the case of Naubat Rai v. Dhaunkal Singh  38 All. 184. Since then these rulings have been followed in several other cases. In this view of the matter it is correct to say that the burden of proving want of notice, in the first instance, lies on the defendant transferee. But this he can do by merely denying the fact on oath, and, therefore, the question of burden of proof loses much of its importance.
11. In this particular case no specific ground has been taken in the memorandum of appeal that the burden was laid on the wrong party. The question of proof is merely one of procedure and it is significant that the plaintiff in the lower Court did not insist on the defendant leading the evidence in the first instance, but he himself led evidence to prove the giving of notice. Both parties have, therefore, led evidence before the Court and the question of mere burden of proof has lost almost all its importance. We have to weigh the evidence as it stands and come to conclusion whether the fact of notice has or has not been established.