1. This appeal is preferred by the plaintiff and the only question to be determined is a question between her and the defendant No.7. The latter is a purchaser for valuable consideration of a four-fifths share of the property to which the suit relates. The question is whether he had notice, at the date of his purchase, of a registered instrument dated the 25th Bhadro 1300 (Exhibit 1). The first Court found that he had notice. In the lower Appellate Court that finding was reversed and the point of law which arises is whether or not on the facts found, it was possible for the learned District Judge to arrive at the conclusion at which he did arrive.
2. For the plaintiff, it is not disputed that according to the view which has been taken in this Court the mere fact that the instrument was registered is not sufficient to affect the defendant No. 7 with notice of it. It is found, however, and indeed admitted, that before purchasing, the defendant No. 7 caused a search to be made at the Registration Office and that the search extended to the books of the year 1300 in which the document is entered. The search was made by a clerk or agent of the defendant No. 7. The District Judge, as we understand his judgment, implicitly accepted the clerk's statement or suggestion that he did not find the document and credited the defendant No.7 with having at any rate good intentions. The defendant No. 7 caused a search to be made, and, therefore, says the Judge, he can hardly be accused of wilful abstention from an inquiry which he ought to have made or of gross negligence of what, in prudence, he should have done, with a view to his own title and security.' At first sight, this may appear to be a possible or even a plausible mode of looking at the matter; but it is opposed to authorities in England and Ireland, which are referred to by Dr. Ghose in his book on Mortgage at page 443. In 1803 in the case of Bushell v. Bushell 1 Sch. & Let. 96 : 9 R.R. 21 Lord Redesdale (Lord Chancellor of Ireland) Observed in the course of his opinion: 'No person thinks of purchasing an estate without searching the registry and if he searches, he has notice'. In 1825, that case was referred to in argument in the case of Hodgson v. Dean 2 Sim & st. 221 : 25 R.R 188 : 3 L.J. (O.S) Ch. 195. and Leach, V.C. delivering judgment said: 'Where a search is generally admitted, or proved, there it may be a proper rule of evidence or presumption that the party searching was acquainted with all the contents of the register, but the particular facts in this case exclude that presumption.' The question was whether the defendant had notice of a registered settlement and the Vice-Chancellor had just previously said that it was plain that the defendant had not actual notice, since the search made on his part did not reach higher than 1794, and the settlement was made in 1755. The case of Hodgson v. Dean 2 Sim & st. 221 : 25 R.R 188 : 3 L.J. (O.S) Ch. 195. was cited in argument in 1853 in the case of Procter v. Cooper 2 Drew. 1 : 2 Eq. R. 450 : 2 W.R. 4 : 18 Jur. 444 : 22 L.T. 182 : 100 R.R. 1. and Kindersley, V. C held, upon facts bearing some resemblance to those in the case before us, that the party searching had notice. If search was actually made' he said 'that is sufficient because the judgment was entered: it matters not then that there is no distinct evidence what the clerk's report to Kirby was; whether he reported that there was or that there was not a judgment; there was one in fact and search was made.' The report goes on: 'I am satisfied that upon this evidence, without adverting to the other circumstances (His Honour observed of the general aspect of the transaction as raising a strong probability of notice in Kirby), a Jury would come to the conclusion that Kirby had actual and positive knowledge of Procter's judgment.'
3. It is true that we are not bound by these precedents but decisions in pari materia in the Courts in England are at least entitled to our respectful consideration, and we are of opinion that the rule or presumption so authoritatively recognised is founded upon reason and common sense.
4. If a search is made for a registered document in such circumstances as those of the present case, it may surely be presumed that it was properly and effectually made and if so, it could have only one result. Notice of a book is notice of its contents. There is, therefore, a presumption of notice and it follows necessarily that the presumption cannot be rebutted by the mere statement that though a search was made it was unsuccessful. A presumption so easily rebutted would cease to have any force at all and might be altogether disregarded.
5. These observations are sufficient to dispose of the case, because all that is said here is that a search was made but without success. There is no attempt to explain this want of success, no suggestion of any special or qualifying circumstance which would justify the treatment of the case as exceptional.
6. No doubt, the question at issue is in essence a question of fact but in the view we take it is clear that the District Judge has misdirected himself in regard to the most important part of the evidence bearing upon the question. He has approached the consideration of that evidence from a wrong standpoint and in so doing he has committed an error of law. On the other hand, he has not referred, or not expressly referred, to a number of circumstances adverted to in the judgment of the first Court which point to the defendant No. 7 having notice in fact. The truth is that when the effect of a search is once recognised, the evidence is all one way and the conclusion of the District Judge cannot be supported. No properly instructed Jury could reasonably have arrived at the finding under review.
7. The result is that, so far as the decrees of the Courts below relate to the defendant No. 7, we must set aside the decree of the lower Appellate Court and restore that of the first Court. The plaintiff is entitled to her costs throughout as against that defendant.
8. There is a cross-appeal by the defendant No. 5 in regard to his personal liability. The learned Pleader for the plaintiff very properly, in our opinion, did not press the point and the decree of the lower Appellate Court must be further modified so as to exempt the defendant No. 5 from personal liability. The defendant No. 5 is entitled to his costs of the cross-appeal, the Pleader's fee being assessed at one gold mohur.