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Mst. Bhoridevi and anr. Vs. Mst. Sua and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 259 of 1955
Judge
Reported inAIR1963Raj141
ActsTransfer of Property Act, 1882 - Sections 3; Evidence Act, 1872 - Sections 115
AppellantMst. Bhoridevi and anr.
RespondentMst. Sua and ors.
Advocates: C.L. Agarwal, Adv.
DispositionAppeal dismissed
Cases ReferredBunwari Jha v. Ramjee Thakur
Excerpt:
.....clauses (1) (2) and (3) of the proviso should have been satisfied. the first clause shows that the registration would be notice where it has been made or completed in the manner prescribed by the registration act of 1944. the reason underlying the enactment of clauses (2) and (3) of the proviso clearly seems to be that if the requirements of these clauses are not satisfied, it would not be possible for a person even by a search of the register to obtain information of the document. 7. that being the state of the law, the question to see in the present case is, whether the requirements of the explanation in question are satisfied in the present case. he had further failed to prove that the rent-note ex. 15000/- and i have no hesitation in saying that if the true facts had not been..........which formerly was included in the territory of the then state of jaipur) at the time, the sale in favour of the plaintiff had taken place, registration amounted to notice.in support of this contention, learned counsel relies, on explanation (i) of section 3 of the jaipur transfer of property act which is an almost identical reproduction of the corresponding provision of the transfer of property act (act iv of 1882). this explanation in so far as it is material for our purposes is as follows:explanation 1, where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from.....
Judgment:

I.N. Modi, J.

1. This is a plaintiffs' second appeal in a suit for the declaration and possession which has been dismissed by both Courts below.

2. The material facts leading up to this appeal are these. The suit house originally belonged to one Mangilal who on his death was survived by his widow Mst. Goran alias Mst. Bhuri and his three sons Ganpat, Nandkishore and Chandnarain. A partition of the house in question had taken place, between the sons and the widow of the said Mangilal, on the 23rd September, 1946. At this partition a portion of the house, of which particulars are given in paragraph two of the plaint, fell to the share of Ganpat.

Thereafter on the 9th December, 1947, Ganpat, it is alleged, sold his share of the suit house to the plaintiff Roopnarain, for a sum of Rs. 999/- by a registered sale-deed Ex. 1.

The case of the plaintiff further was that Ganpat thereafter took the same on rent from the plaintiff on the 11th January, 1949, by a rent-note Ex. 3. Thereafter Ganpat and his mother on behalf of herself and her two sons who were minors sold the entire Haveli including the portion which had fallen to the share of Ganpat in favour of Mst. Bhuri and Sua, mother and daughter, defendants Nos. 1 and 2 respectively, by a sale-deed. Ex. A-5 dated the 4th November, 1949, and handed over its possession to the vendees on the 5th February, 1950. ' Consequently the plaintiff Roopnarain instituted the suit, out of which this appeal arises, on the 11th August, 1950, for possession of the portion of the house which had been sold to him by Ganpat by the sale-deed Ex. 1 dated the 9th December, 1947.

3. Defendant Ganpat allowed the suit to proceed 'ex parte' against himself. His mother Mst. Bhuri stated that she had sold only her share to defendants Nos. 1 and 2 and she had been unnecessarily dragged into this litigation. The suit was, however, hotly contested by defendants Nos. 1 and 2, the vendees. They denied that any sale had been executed by Ganpat in favour of the plaintiff, and in any case, the latter did not come into possession of it. They also contended that the house had been validly sold to them by and on behalf of defendants Nos. 3 and 4 and the minor brothers of Ganpat. They also raised a case of estoppel based on the following facts.

4. Two of the sons of Mangital were minors at the time of the sale in their (defendants vendees') favour and they were indebted to several persons. Consequently these defendants had engaged advocate Gendilal to see that every, thing was done in a proper manner. Among the creditors of the heirs of Mangilal was the plaintiff himself and he had given out that besides certain unsecured debts, he had advanced a sum of Rs. 1000/- to them on a mortgage of the suit house. The plaintiff totalled up his unsecured debts whereupon this sum was paid to him. He, however, stated that the mortgage-deed was not traceable at the time and he gave them an assurance in the presence of Gendilal Advocate, D. W. 1, that he would receive the sum of Rs. 1000/- with interest on producing the mortgage-deed and that this sum might be set apart. Consequently relying on this assurance, these defendants deposited a sum of Rs. 1400/- with a third party namely D.W. 3 Surajmal and the defendants proceeded with the sale of the entire house which was duly completed in their favour.

The case of these defendants emphatically was that if they had known that a portion of the property had alreadybeen sold by one of the vendors to the plaintiff, they would never have purchased the property in question in the way they did, and, consequently, it was contended that the plaintiff was estopped from questioning the sale which had been made in their favour by Ganpat and the remaining, members of the family. Both Courts below have dismissed the plaintiff's suit holding that the plea of estoppel had been fully proved against the plaintiff. Aggrieved by this, decision, the plaintiff has come up in second appeal to this Court.

5. Before proceeding further, it may be mentioned that plaintiff Roopnarain died during the 'pendency of this, appeal and he is now represented by his widow Mst. Bhoridevi and his daughter Mst. Fatehkunwar. On the side of the defendants, Mst. Bhuri also died during the pendency of the appeal in this Court and as her only legal representative was her daughter, Mst. Sua, who is already an the record, her name was ordered to be struck out from the array of parties by an order of this Court, dated the 19th September, 1962.

6. The principal contention raised by learned counsel for the legal representatives of the plaintiff appellant is that the Courts below have fallen into a serious error of law in holding that the plaintiff was estopped from contending that the sale made by Ganpat and his mother in favour of the vendees was invalid, in so far as Ganpat's, share in the suit property was concerned owing to a prior sale by him (Ganpat) of that share in favour of the plaintiff.

In support of his submission, the main argument of learned counsel was that the sale-deed made by Ganpat in favour of the plaintiff, Ex. 1, was duly registered and that as the Jaipur Registration, Act and the Jaipur Transfer of Property Act were both in force (this case arises from that part of Rajasthan which formerly was included in the territory of the then State of Jaipur) at the time, the sale in favour of the plaintiff had taken place, registration amounted to notice.

In support of this contention, learned counsel relies, on Explanation (I) of Section 3 of the Jaipur Transfer of Property Act which is an almost identical reproduction of the corresponding provision of the Transfer of Property Act (Act IV of 1882). This explanation in so far as it is material for our purposes is as follows:

Explanation 1, Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration ......

Provided that

(1) the instrument' has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (XVI of 1908) and the rules made thereunder.

(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and

(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the Indexes kept under Section 55 of that Act.

Now, the position as to the law regarding registration of an instrument operating as a notice has not been uniform in our country. One set of cases held that registration of a document under the Registration Act would be a notice.another set of cases held that It would not be. The thirdview was that though mere registration was not 'notice'ty itself, the omission to search a register together with other facts amounting to gross negligence or with abstention, would attract the consequence following from the the notice.

In Tilakdhari Lal v. Khedan Lal, AIR 1921 PC 112,, their Lordships of the Privy Council, approving the view of the learned Judges in Bunwari Jha v. Ramjee Thakur, 7 Cat WN 11 held that notice cannot in all cases be imputed from the mere fact that a document is to be found upon the Indian register of deeds and that the correct view was, that whether registration was or was not notice in itself, would depend upon the facts and circumstances of each case, upon the degree of care and caution which an ordinarily prudent man would necessarily take for the protection of his own interest by search into the registers kept under the Registration Act.

Then by Act XX of 1929, the present explanation was added with the result that where a document has been registered, a person must, as a matter of law, be deemed to have notice in the circumstances and to the extent mentioned in the Explanation. A careful perusal of the Explanation would, however, at once show that in order that registration may be deemed to be notice, it is imperative that Clauses (1) (2) and (3) of the proviso should Have been satisfied. The first clause shows that the registration would be notice where it has been made or completed in the manner prescribed by the Registration Act of 1944. The reason underlying the enactment of Clauses (2) and (3) of the proviso clearly seems to be that if the requirements of these clauses are not satisfied, it would not be possible for a person even by a search of the register to obtain information of the document.

7. That being the state of the law, the question to see in the present case is, whether the requirements of the Explanation in question are satisfied in the present case. My answer to this question is that they are not. All that we know is that the sale-deed was registered under the Jaipur Registration Act, 1944. But there is no material whatsoever on the record from which it may be concluded that the requirements of clauses (2) and (3) of the proviso are fulfilled in the present case. In the circumstances, the only conclusion to which I can come is that the mere fact that the document Ex. 1 was registered in the present case does not and cannot amount to notice within the meaning of Section 3 of the Jaipur Transfer of Property Act. I hold accordingly.

8. The only other question which then arises is the question of constructive notice not standing in the way of the defendants) whether the finding of the Courts below that the plaintiff was estopped from questioning the sale made by Ganpat and his relations in favour of the contesting vendees calls for interference in this appeal. The facts found by the first Court of appeal on this aspect of the case may be briefly summarised as follows:

(1) According to D. W. 1 Gendilal who had been engaged by the defendants vendees in connection with the completion of the sale-deed in their favour, the plaintiff Roopnarain had told him that some money was due to him on account of bonds and some more on account of a mortgage, but the mortgage-deed was not traceable at the moment.

(2) The plaintiff had been paid full money for all his bonds Exs. A-1, A-2 and A-3 and he had said that a sum of Rs. 1000/- plus interest was due to him in connection with the mortgage, and, therefore, the vendees had deposit-ed a sum Of Rs. 1400/- with D. W. 3 Surajmal and the plaintiff had been informed that the money had been so deposited.

(3) The plaintiff himself admitted that he had received the payments of the amounts due to him under Exs. A-1 to A-3.

(4) The plaintiff did not at all mention at the time that he had purchased any portion of the Haveli but ha had only maintained that he had a mortgage-debt of Rs. 1000/- plus interest on it and the plaintiff knew all the time that the whole house had been sold and yet he kept absolutely quiet

(5) According to the evidence of D.W. Surajmal, the plaintiff Roopnarain along with Laloo D.W. 4 had came to him and deposited a sum of Rs. 1400/- with him saying that this money was to be paid to Roopnarain on his returning the mortgage-deed with respect to the house which was, being sold to the vendees.

(6) The case of the plaintiff that the possession of the house had been given over to him in consequence of the sale made in his favour by Ganpat had not been proved. He had further failed to prove that the rent-note Ex. 3 had been executed in his favour by Ganpat

9. On these facts, the learned Judge found that the plaintiff had only represented to the defendants vendees that' a one-third share in the house had been mortgaged to him for Rs. 1000/- and that he had completely suppressed the fact of sale in his favour with respect to that share and further that by concealment of this latter fact, the plaintiff induced the vendees to pay him money under the bonds Exs. A-1, A-2 and A-3 and also to have the sale-deed completed in their favour which they would not have done had they known that one-third of the house had already been sold to him. According to the learned Judge, the intention to defraud on the part of the plaintiff was patent on the facts of the case, and in this view of the matter, he held that the principle of estoppel fully operated against the plaintiff.

10. I have no hesitation in holding that on the facts-found by the Court below, it must be accepted as correct for the purposes of this second appeal that the conclusion to which he came on the question of estoppel is unexceptionable. The defendants vendees had purchased the entire Haveli for as large a sum of money as Rs. 15000/- and I have no hesitation in saying that if the true facts had not been studiously screened from their knowledge in the manner the plaintiff managed to do, they would most certainly not have got themselves involved in a deal like the present which was bound to lead them into a litigation. Here we have, therefore, ail the ingredients of Section 115 oft the Evidence Act, to wit, (1) there was a representation I by the plaintiff to the defendants vendees; (2) the representation was that he was only a mortgagee with respect to a part of the property which was to be sold to them; (3) this representation was clearly and intentionally meant to be relied upon; (4) the defendants vendees believed in its truth; (5) they acted on the faith of it and purchased the property which they otherwise, in all probability, would have not, and (6) there Is nothing to show that the defendants were aware of the true state of things. That being so, the plaintiff or his legal representatives sonnet be permitted to deny the truth of the representation,

11. In these circumstances, I am fully satisfied that the conclusion to which the Court of first appeal came on this aspect of the case is perfectly sound and calls for no interference at the hands of this Court.

12. In the result, this appeal fails and is hereby dismissed. There will, however, be no order as to costs in this Court as the contesting defendant namely Mst. Sua hasNOT put in appearance here.

13. Leave to appeal is refused.


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