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Kali DIn Vs. Madho and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All169; 77Ind.Cas.862
AppellantKali Din
RespondentMadho and ors.
Cases ReferredHathans v. Ram Kumar Naick
Excerpt:
transfer of property act (iv of 1882), section 55(2), applicability of--sale--vendor describing himself as owner--covenant as to title--notice--registration, effect of--res judicata between co-defendants. - - in that suit it was decided that the present plaintiffs-respondents who are the success ors-in-interest of bhup singh and sheo lal were not bona fide purchasers for value and the suit was determined in favour of ram lal. the interest which he professes to transfer is clearly full proprietary title. the question as to whether the suit is time-barred has not been argued in appeal and on the findings of the courts below the suit was clearly not time-barred......against property which is not liable.2. on the first point i have to look at the terms of the deed. gaya din describes himself therein as the owner (malik) in possession of the property transferred. he no where suggests that he has obtained his title from hindu women. the deed is silent on the subject. the interest which he professes to transfer is clearly full proprietary title. under section 55(2) he mast have been deemed to have contracted with the buyers that he had full proprietary title in the property. section 55(2) will, therefore, apply unless it be shown that the benefit of the rule was lost to the purchasers by fraud, notice waiver or express or implied contract. there is no suggestion of fraud, waiver, or express or implied contract and the only suggestion of notice is.....
Judgment:

Stuart, J.

1. The facts of the suit out of which this appeal arises are these:

On the 3rd of March 1884 a certain Gaya Din purchased a small property in the Hamirpur District from the Hindu widows Lachmin Kuer and Radha Kuer. On the 19th February 1090 Gaya Din transferred that property to Bhup Singh and Sheo Lal for Rs. 475. Dachmin Kuer died before 1905. Radha Kuer died in 1905. In 1917 Ram Lal, claiming to be the heir to the property by reversion; instituted a suit against Gaya Din's successors-in-interest and the successors-in-interest of Bhup Singh and Sheo Lal. In that suit it was decided that the present plaintiffs-respondents who are the success ors-in-interest of Bhup Singh and Sheo Lal were not bona fide purchasers for value and the suit was determined in favour of Ram Lal. The plaintiffs-respondents then instituted the present suit against Kali Din son of Gaya Din for the return of the purchase-money paid to Gaya Din by their predecessors-in-interest. The Trial Court has given them a decree which has been upheld by the lower Appellate Court. The defendants appeal here. The points for decision are these:

(1) Did the terms of the sale-deed of the 19th of February 1890 entitle the vendee to the protection of the provisions of Section 55(2) Act IV of 1882?

(2) Was the suit time-barred?

(3) Is the suit barred by res judicata?

(4) Does the decree offend as being against property which is not liable.

2. On the first point I have to look at the terms of the deed. Gaya Din describes himself therein as the owner (malik) in possession of the property transferred. He no where suggests that he has obtained his title from Hindu women. The deed is silent on the subject. The interest which he professes to transfer is clearly full proprietary title. Under Section 55(2) he mast have been deemed to have contracted with the buyers that he had full proprietary title in the property. Section 55(2) will, therefore, apply unless it be shown that the benefit of the rule was lost to the purchasers by fraud, notice waiver or express or implied contract. There is no suggestion of fraud, waiver, or express or implied contract and the only suggestion of notice is the implied notice contained in the legistration of the deed of the 3rd March 1884 under which the two widows transferred the estate to Gaya Din. Prior to 1920 it might have been argued with some force, in view, of the decisions of this Court that the mere registration of the sale-deed by the widows was sufficient notice to a purchaser from Gaya Din that Gaya Din had only title to the property, under a transfer which could be avoided by subsequent reversioners unless it were shown to have been made for legal necessity. But the decision of their Dordshtps of the Privy Council in Tilakdhari Lal v. Khedan Lal 57 Ind. Cas. 645 : 47 I.A. 239 : 39 M.L.J. 243 : (1920) M.W.N. 591 : 2 U.P.L.R. (P.C.) 139 : 22 Bom. L.R. 1319 : 18 A.L.J. 1074 : 25 C.W.N. 49 : 28 M.L.T. 224 : 32 C.L.J. 479 : 13 L.W. 101 : 2 P.L.T. 101 : 48 (sic) (P.C.) which was delivered on the 2nd July 1920, has interpreted the law as to notice in accordance with the view previously held by the Calcutta High Court, and has declare that the law as to notice in India in so far as registration of deeds of title can be considered to be implied notice does not differ materially from the law to notice in England. It is not laid down in that decision that notice can never be imputed from the fact that a document is to be found upon the Indian register of deeds. It lays down that the question must be determined upon the merits in each individual case. And as I read the decision of the Courts below in this instance notice could not be imputed from the mere fact that the deed of the 23rd March 1884 was registered. It would be difficult to hold otherwise when re-collection is had of the present backwardness of the inhabitants of the Hamirpur District and the fact that in the year 1884 they were is a very much less advanced condition of mentality than they are at present. The question as to whether the suit is time-barred has not been argued in appeal and on the findings of the Courts below the suit was clearly not time-barred.

3. With regard to the question of res judicata I agree with the Courts below that there was no res judicata in the matter. The plaintiffs-respondents and the defendant-appellant were co-defendants in the previous suit but their interests were not at variance and the decision in the previous suit was in no way a decision between them as parties. It is not, of course, impossible for a Court to arrive at a decision as between co-defendants which will operate as res judicata in subsequent proceedings. Such a decision is discussed in Hathans v. Ram Kumar Naick 54 Ind. Cas. 974 : 18 A.L.J. 126 : 7 U.P. L.R. (A.) 46. But in that case the interests of the co-defendants were at variance and there actually was a decision in favour of one as against the other.

4. In regard to the last point, Gaya Din being dead the decree has been passed against such assets of Gaya Din as have come into the hands of the defendant. There is nothing objectionable in this. If an attempt is made to execute the decree against inalienable property the defendant-appellant will be at liberty to object to such execution.

5. I, therefore, dismiss this appeal with costs which include fees on the higher scale.


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