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Preonath Chattopadhya Vs. Ashutosh Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal358
AppellantPreonath Chattopadhya
RespondentAshutosh Ghose and ors.
Cases ReferredInderdawan Pershad v. Gobind Lall Chowdhry
Excerpt:
specific relief act ( i of 1877), section 27 - specific performance of a contract, suit for--whether registration of an ekrarnamah was sufficient notice of the contract. - .....another person to sell the property to them if it was sold at all; that subsequently there was a verbal contract between the defendant no. 2 and the plaintiff for the sale of the same to the latter for rs. 100; and that the defendant no. 1, who had notice of the ekrarnamah and of the verbal contract, had, in spite of such notice, purchased the property from defendant no. 2.2. the defence of defendant no. 1 was a denial of the alleged verbal contract, a denial of notice of the verbal contract or of the ekrarnamah, and a denial of the plaintiff's right. the defendant no. 2 also denied the plaintiff's right generally.3. the first court found for the plaintiff and gave him a decree. on appeal by the defendants the lower appellate court has reversed that decree and dismissed the plaintiff's.....
Judgment:

Banerjee and Stevens, JJ.

1. This appeal arises out of a suit brought by the plaintiff-appellant to enforce specific performance of a contract for sale of certain immoveable property against the defendant No. 2, the vendor, and the defendant No. 1, who is a purchaser from the defendant No. 2 of the property in dispute, on the allegation that the predecessor in interest of the defendant No. 2 had entered into an ekrarnamah or agreement with the plaintiff and another person to sell the property to them if it was sold at all; that subsequently there was a verbal contract between the defendant No. 2 and the plaintiff for the sale of the same to the latter for Rs. 100; and that the defendant No. 1, who had notice of the ekrarnamah and of the verbal contract, had, in spite of such notice, purchased the property from defendant No. 2.

2. The defence of defendant No. 1 was a denial of the alleged verbal contract, a denial of notice of the verbal contract or of the ekrarnamah, and a denial of the plaintiff's right. The defendant No. 2 also denied the plaintiff's right generally.

3. The first Court found for the plaintiff and gave him a decree. On appeal by the defendants the Lower Appellate Court has reversed that decree and dismissed the plaintiff's suit, holding that the alleged verbal contract was not proved; that the ekrarnamah could not be enforced as the suit was not based upon it, and as moreover the ekrarnamah was not between the plaintiff and the defendant No. 2, nor for exactly the same subject-matter as that now in dispute; that the defendant No. 1 had no notice of the ekrarnamah or of any verbal contract for sale; and that the registration of the ekrarnamah was not sufficient notice within the meaning of Section 27 of the Specific Relief Act.

4. In second appeal it is contended on behalf of the plaintiff-appellant that the Lower Appellate Court is wrong in holding that the registration of the ekrarnamah was not sufficient notice in law to the defendant No. 1, and that the suit was not based upon the ekrarnamah. It is further contended' that the fact of the suit not being between the same parties as those who entered into the ekrarnamah makes no difference when the suit is brought by one of the parties in whose favour the ekrarnamah was executed on the allegation that the other party who was jointly interested had waived the benefit of the ekrarnamah.

5. The first question for consideration in this appeal is whether the registration of the ekrarnamah was sufficient notice to the defendant No. 1 within the meaning of Section 27 of the Specific Relief Act. If this question is answered in the affirmative it will then be necessary to consider the other questions raised. But if it be answered in the negative, then, as admitted by the learned pleader for the appellant, it will be unnecessary to go into those questions. 'Notice' is not defined in the Specific Relief Act. It has been found by the Lower Appellate Court as a fact that there was no actual notice to the defendant No. 1, either of the agreement or of the alleged verbal contract. The only notice that is relied upon is constructive notice by reason of the registration of the ekrarnamah. In Section 3 of the Transfer of Property Act 'notice' is defined in these words: 'A person is said to have notice of a fact when he actually knows that fact, or when but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent under the circumstances mentioned in the Indian Contract Act, 1872, Section 229.' This is as comprehensive a definition of 'notice' as any that has ever been given. Notwithstanding this comprehensive definition of the term it has been held by this Court in the case of Inderdawan Pershad v. Gobind Lall Chowdhry (1896) I.L.R., 23 Cal., 790, that registration does not amount to notice within the meaning of Section 81 of the Transfer of Property Act. If that is so, we see no reason why a different view should be taken as to the effect of registration on the question of notice in a case coming under Section 27 of the Specific Relief Act. Registration is not constructive notice under the English law, see the notes to Le Neve v. Le Neve, W. & T.L.C. 7th Ed., Vol. II, 193. We may add, as was remarked by Mr. Justice Pontifex in the case of Doorga Narain Sen v. Baney Madhub Mozoomdar (1881) I.L.R., 7 Cal., 199, that the doctrine of constructive notice has been pushed to its extreme limit in England, and that in this country it requires even more careful application against a purchaser for value.

6. The learned Vakil for the appellant relies upon the case of Lakshmandas Sarup Chand v. Dasrat (1880) I.L.R., 6 Bom., 168. That case was considered by this Court in the case of Inderdawan Pershad v. Gobind Lall Chowdhry (1896) I.L.R., 23 Cal., 790, and was dissented from, and it has also been dissented from by the Madras High Court in the case of Shan Maun Mull v. Madras Building Co. (1891) I.L.R., 15 Mad., 268. In this state of the authorities we think it right to follow the view taken of the effect of registration on the question of notice in this Court in the case of Inderdawan Pershad v. Gobind Lall Chowdhry (1896) I.L.R., 23 Cal., 790, and we must hold that the registration of the ekrarnamah was not constructive notice to the defendant No. 1 within the meaning of Section 27 of the Specific Relief Act. That being so, it becomes unnecessary to consider the other questions raised in the appeal; and the appeal must be dismissed with costs.


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