Judgement

SIKRI, C.J.I. :- Shrimati Shantibai, respondent No. 1 - hereinafter referred to as the plaintiff - brought a suit for the specific performance of an agreement dated March 1, 1960, to sell the property in suit situate at Bombay Bazar, Khandwa, executed by Dagdoo, respondent No. 2 - hereinafter referred to as the vendor - and Dr. Govinddas and Seth Goverdhandas defendants - appellants before us, who had purchased the said property. The Trial Court dismissed the suit but the High Court allowed the appeal and decreed the suit. Having obtained certificate of fitness from the High Court, the appellants have filed this appeal before us.

2. The main point involved in this appeal is whether the appellants had notice of the agreement to sell dated March 1, 1960, between the plaintiff and the vendor. The Trial Court held that the appellants were bona fide purchasers without notice of the prior agreement. The High Court, on the other hand, held that the appellants had notice of the previous agreement. Incidentally, the question of the nature of onus of proof which the appellants had to discharge to prove their bona fide has been debated before us. We have been taken through the evidence of the relevant witnesses and we are of the opinion that the High Court came to the correct conclusion.

3. According to the plaintiff, Seth Goverdhandas, appellant, had express notice of the agreement dated March 1, 1960 (Ext. P-1) on the very day when the agreement was entered into. The version on behalf of the plaintiff is given by plaintiff s husband, Hemraj Singh Chauhan, witness No. 1 for the plaintiff. as follows:

"Souda-chitthi was scribed by Shrikrishna Munshi who is Munshi to Mohammed Hussain Vakil. The house of Vakil Saheb is in front of my shop. After scribing Souda-chitthi all of us went to Vakil Saheb for showing Souda-Chitthi; for going to the house of Vakil-Saheb we people crossed the road which is to the front side of the shop and reached the shop of Hayatkhan. Hayatkhan and Goverdhandas were present there. Hayatkhan questioned as to why he was accompanied with so many persons? Thereupon I replied that Souda of the house of Dagdooji was made. I had learnt that Goverdhandas also was to purchase this house and he was roaming about since the morning. I had also told him that Souda of the house of Dagdoo was made. The house of Vakil saheb is adjacent to the house of Hayatkhan and he resides on the upper storey."

4. This is substantially corroborated by Hayatkhan, witness No. 3 for the plaintiff, who does not seem to be interested in either of the parties. Hayat Khan deposed:

"My shop is to the front-side of Chouhan Stores. I knew Gowardhandas. His shop is also situated in Bombay Bazar. In the month of March or April, in the last summer season Goverdhandas was sitting at my shop at about 10 or 10-13 a.m. In the meantime Hemraj Chouhan, Kirshan Mishrlal and Dagdoobhai all these came to my shop from Chouhan Stores. Hemraj Seth said to Goverdhandas bhai that Souda-Chitthi in connection with the house was executed and he asked him not to visit Dagdoo. After this talk Hemraj and his companion went to the house of Mohammad Hussain Vakil Saheb.

Goverdhandas had come to my shop before he came Hemraj Seth (sic). On being questioned he replied that he had come for Dagdoo who had gone to Chouhan Stores. I asked him to sit and he sat."

In cross-examination he denied any friendship or domestic relations with Chouhan, plaintiff s husband. Hayat further deposed that Goverdhandas always used to visit his shop and sit there, from five minutes to half an hour. Nothing has been brought out in cross-examination to suggest that his story is not reliable. The only thing that has been brought to our notice is that he does not say that he questioned Hemraj Chouhan why he was accompanied with so many persons. This criticism, in our opinion, does not destroy his evidence.

5. In appraising the evidence of the witnesses it must be kept in mind that they are all residents