Judgement

Appeal (No. 1 of 1932) from a decree of the High Court (June 12, 1930) reversing a decree of the Subordinate Judge of Patna (March 31, 1928).

The appellant instituted a suit for specific performance of a contract of November 26, 1926, for the sale to him of certain immovable property, and had obtained a decree against defendants Nos. 1, 2, and 3. The present appeal related only to defendant No. 4 (respondent No. 1), the decree against whom had been set aside by the High Court. He claimed title to the property under a registered sale-deed of December 22, 1926 ; a decree was prayed for against him under s. 27 (b) of the Specific Relief Act, 1877.

The facts of the case and the terms of the above section appear from the judgment of the Judicial Committee.

Among the issues framed were (6.) Had defendant No. 4 knowledge of any contract between the plaintiff and defendant No. 1 before execution of the sale-deed in his favour ? (7.) To what relief, if any, is the plaintiff entitled ?

The trial judge made a decree for specific performance against all the defendants. Applying Muhammad Sadik Khan v. Masihan Bibi (( 1930) I. L. R. 9 P. 417.) he held that, the plaintiff having proved a prior contract, the onus was upon defendant No. 4 to prove that the transfer to him was bona fide for value and without notice, and that he had not adduced satisfactory evidence that he had no notice of the plaintiffs contract, nor that he was a bona fide purchaser for consideration.

On an appeal by defendant No. 4 to the High Court (Wort and Adami JJ.) the decree against him was set aside. Wort J. said, with regard to whether defendant No. 4 had notice of the prior contract, that there was no evidence apart from that of the plaintiff, which had been disbelieved ; he would hold that it had not been established that defendant No. 4 had knowledge of the contract. On the question whether defendant No. 4 had paid the money he said there was no evidence. Adami J. agreed with the above reasons for allowing the appeal. He was further of opinion, differing from Wort J., that by the agreement of November 26, 1926, the vendor sold only his own interest in the property.

1933. Nov. 28, 30. Sir Dawson Miller K.C. and Jinnah for the appellant. Upon the true construction of the agreement of November 26, 1926, defendant No. 1 as karta agreed to sell to the plaintiff the whole of the family share in the property. Under s. 27 (6) of the Specific Relief Act, 1877, the appellant was entitled to a decree against respondent No. 1 (defendant No. 4). There have been a series of decisions in India under which the onus was upon him to prove that he was a transferee for value who had paid his money in good faith and without notice of the original contract. [Reference was made to Himatlal

v. Vasudev (( 1912) I. L. R. 36 B. 446.), and other cases mentioned in the judgment, also to Hem Chandra De Sarkar v. Amiyabala De Sarkar. (( 1924) I. L. R. 52 C. 121.)] The above decisions apply the principle laid down by the Board in Varden Seth Sam v. Luckpathy Royjee Lallah (( 1862) 9 Moo. I. A. 303.), in which the question was analogous to that arising under

s. 27 (6). The trial judge was right in holding that the onus of proof had not been discharged. The High Court treated the onus as being on the plaintiff; they decided in his favour after finding that there was no satisfactory evidence whether defendant No. 4 had notice, or whether he had paid the price.

Dunne K.C. and Mockett for respondent No. 1. By the agreement of November 26, 1926, defendant No. 1 sold only his own interest in the property. The agreement does not purport to be made by him as karta, or on behalf of the family ; the necessity to which it refers is not stated to be the legal necessity of the family. Even if the contract of sale was on behalf of the family, the evidence shows that defendant No. 4 was within the exception to s. 27 (6) of the Specific Relief Act, whether or not the onus of proof was upon him. In his