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Regular Second Appeal No. 126 of 1951, decided on 8th December 1952, from the decree of Shaikh Abdul Majid Asghar, District Judge, Sialkot, dated the 14th December 1950, reversing that of Chaudhry Sultan Khan, Additional Civil Judge, 1st Class, Pasrur, dated the 9th June 1950.
S. 77‑--Suit to compel registration of document does not lie outside provisions of.
A suit to compel the registration of a document does not lie outside the provisions of section 77 of the Registration Act.
A suit, however, to compel the presentment of a document to the Registering officer may not be barred.
S. 12‑---Sale‑deed remain ing unregistered‑Suit for specific performance by vendee on basis of original contract competent‑Registration Act (XVI of 1908), S. 77.
When a vendor executes a deed of sale but it remains unregis tered and the vendee sues for specific performance of the original contract the question that is to be considered is whether there is a subsisting contract for sale or not. If the contract be subsisting the vendee has a statutory right, subject to the provisions of the Specific Relief Act to have the contract performed. The suit cannot be defeated merely because the deed which was executed had not been registered.
It will have to be decided on the facts of each case whether there is, still a subsisting contract and the suit cannot be barred by the mere fact that the document already executed remains unregistered.
[Case law discussed].
S. 27‑---Notice‑---Possession is tantamount to notice of title of party in possession.
There is abundant authority for the proposition that possession is tantamount to notice of title of the party in possession. He may have acquired possession under one title and may at the same time possess a document entitling him to have another interest trans ferred. The person who purchases the property shall be deemed to have notice of all his rights.
Akbar Ali for Appellants.
Muhammad Iqbal Cheema for Respondents.
---Inayat Ullah defendant‑respondent is the owner of 6 kanals and 5 marlas of land for which he executed on the 7th July 1949, a sale deed in favour of Shah Muhammad, plaintiff- appellant, who was already a mortgagee with possession of the land, for a consideration of Rs. 1,000, out of which Rs. 35 were paid, Rs. 565 were to be paid before the Sub‑Registrar and the balance was to be kept by Shah Muhammad on account of his own previous mortgage. The deed has not been registered so far, the allegation in the plaint being that Inayat Ullah defendant had been putting off the plaintiff though asked to get it registered a number of times. In the meantime, on the 12th July 1949, Inayat Ullah executed and registered a mortgage deed in favour of defendants Nos. 2 to 9, for Rs. 1,034. Plaintiff alleges that they were fully aware of the sale in his favour.
The suit out of which this appeal arises was filed by Shah Muhammad on the 2nd August 1949. The plaint states the facts mentioned above, alleges distinctly a contract for sale and claims the following reliefs:‑
(a) Specific performance of contract of sale against defendant No. 1.
(b) A declaration against defendants Nos. 2 to 9 to the effect that the mortgage of land created by defendant No. 1 in favour of defendants Nos. 2 to 9 is ineffectual as against the plaintiff's rights created by the deed of sale dated the 7th July 1949, by having the sale deed registered.
(c) A declaration to the effect that he is in possession of the land as owner.
Inayat Ullah defendant did not contest the suit. Defendants Nos. 2 to 9 pleaded ignorance of the contract of sale. They objected that the suit was not competent as a sale deed had already been executed. They pleaded too that they were bona fide owner transferees for value without notice of the plaintiff's contract.
The trial Court found the agreement of the sale proved. it held that, though a suit did not lie for getting a deed registered except under section 77 of the Registration Act, a suit for specific performance of the original agreement to sell was not barred Without going into the question whether defendants Nos. 2 to 9 had notice of the contract of sale it held that as there was already a sale in favour of the plaintiff on the 7th July 1949, the subsequent mortgage did not affect him. On these findings the trial Court granted all the three reliefs claimed by the plaintiff.
On appeal the learned District Judge came to the conclusion that the suit was not competent at all. He found that defendants Nos. 2 to 9 were valid mortgagees and that there was no evidence to show that they had knowledge of the plaintiff's contract. On account of his finding as to the competency of the suit he accepted the appeal and dismissed the suit. Shah Muhammad has come up in appeal.
With regard to the competency of the suit the questions that arise are:‑ (a) Does a suit to compel registration lie apart from the provisions of section 77 of the Registration Act (b) Is a suit for specific performance of the original agreement to transfer competent if the deed of transfer has been executed to give effect to that agreement but has remained unregistered.
The first question does not present much difficulty and among the Indian High Courts there seems to be a consensus of opinion on the point. It is on account of the passing of the Registration Act that a right to get a document has come into existence and that Act itself provides a remedy for the enforcement of the right. It enables the parties to present documents for registration, provides a remedy for enforcement of attendance of executants and in case: of improper refusal by the Registrar to whom an ultimate approach is provided, it gives a right of suit. On the principle that where a right is created by an Act and a remedy is provided, the remedy should be regarded as exhaustive, suit apart from the provisions of the Registration Act would not lie. There are other considerations too which would lead to the same conclusion. The time limit provided for registration is only four months which may in proper cases be extended to eight months and if this period elapses as it has done in this case, no decree of Court could enable the party to get a document registered. A mere inter partes decree would be ineffective for registration unless the registering officer be also bound to act in accordance with it. He can register in accordance with the provisions of the Registration Act and not otherwise. I would, therefore, hold that a suit to compel the registration of a document would not lie outside the provisions of section 77 of the Registration Act. I would, however, add a qualification. A suit to compel the presentment of a document to the registering officer may not be barred. If the document which is executed is still in possession of the executant the Registration Act provides no method by which the person claiming under the deed can force the executant to present the document to the registering officer. This question is not arising in this case and I need not express a final opinion on it. But I would guard against being understood to lay down that even when the document is in the possession of the executant no suit will lie.
On the question as to whether a suit for specific performance will lie, there is a conflict of authority, Madras cases laying down that such a suit is not competent while Patna, Allahabad and Calcutta decisions lay down the contrary. The leading Madras case is (Komeriseti) Satyanarayana v. Veeraaki China Ven katarao and others (A I R 1920 Mad. 530). In that case there was a written agree ment to sell followed by a sale deed. Registration of the sale deed having been refused a suit was brought for specific performance of the original contract and the suit had been decreed by the trial Court. Coutts Trotter, C. J, who wrote the judgment, while deal ing with Surendra Nath Nag Chowdhry v. Gopal Chunder Ghosh (12 Cal. L J 464), a decision which holds that suit to enforce specific performance will lie, said:‑
"The reasoning of the learned Judges of the Calcutta High Court appears to be this. The understanding of a person who enters into a contract for the sale of real property is to do every thing whereby an operative agreement in law can be effected. He has not done everything if he failed in an instrument where the obligation is cast upon him to obtain its registration, and, therefore, a step in the creation of the legal relation of purchaser and vendor being wanting, you can compel the person who has not taken that step to take it. The answers appear to me to be very simple. Section 77 of the Registration Act not only tells you how you are to do that, but says that if you want to effect that purpose of having registration forcibly carried out by a decree of the Court, you must do it within thirty days. It seems to me that these decisions in Calcutta and Allahabad in effect take upon themselves by a side wind to get rid of the period of limitation strictly imposed by the express words of the statute. To nay mind no judicial decision has any right to temper with a thing directly enforced and enjoined by a statute whose construction is free from possible doubt. The most that can be said is that the remedy given by the statute is not intended to be the only one. It is almost impossible to believe that the Legislature can have intended that there should be a direct and an indirect way of effecting the same thing and that the period of limitation applicable to them should be entirely different."
Further on while dealing with Nastruddin Midda v. Bipra Das and others (27 Cal. L J 538), in which Mookerjee and Beachcroft, JJ. held that though a suit to compel registration of the particular document did not lie, there was no answer to the alternative claim by specific performance, the learned Judge said:‑
"So that what is taken away by the right hand is immediately replaced by the left and where the statute has forbidden a special means, another means is promptly devised in order to get round the word of the Act."
It would appear from the above quotations that the learned Judge held the suit for specific performance to be barred because in his opinion to decree the execution of a new deed would be to defeat the law by which the registration of the deed already executed had become barred. With all respect, I am unable to agree. Whether a vendee will or will not be entitled to get a second deed executed by his vendor will depend on the agreement between the parties. It according to their agreement he would be entitled to a new document the fact that the first deed remains unregistered will to not stand in his way. Suppose there is, in the original agreement to sell, an express provision that in case a deed of the sale which is executed is for some reason not registered, the vendor would execute another document in its place. If in such a case the first sale deed remains unregistered and a suit for specific performance by the execution of a new sale deed is brought, could it be argued that the suit would not lie Would the contract to execute a new document in place of the old be illegal If it be not illegal would there be any legal bar to its enforcement There can in my opinion be only one reply to these questions, and that is that such an agreement would be legal and that a suit would lie. I find support for this proposition even in a Madras case, Valam balachi v. Duraiswami Pillai and another (A I R 1928 Mad. 344), to which I will have occasion to refer again. In that case Srinivasa Aiyangar, J. said. "If in a sale or sale‑deed there should be a covenant for further and better assurance the right to get a fresh document may conceivably be covered by such a covenant". If then instead of an express agreement we come to the conclusion that there was an implied agreement to execute another document in case of loss of first, would the position be any different An implied contract is as binding as an express contract. When one person contracts with another to transfer property to him he undertakes to do all the acts necessary for effecting a transfer. This proposi tion, which is relied upon in the Allahabad and Calcutta judgment referred in A I R 1926 Mad, 530, is not disputed, either in A I R 1926 Mad. 530 or in any other Madras case, and if bind ing authority were needed for such a proposition, it will be found in Motilrji and others v. Nennelal and another (A I R 1930 P C 287), where there Lordships of the Privy Council held that if sanction of an authority was needed for the sale it was the duty of the vendor to apply for it. They said:‑
"In view of the above mentioned construction of the agree ments of 4th September 1914, viz., that Sobhagmal agreed to transfer the cultivating rights in the sir land there was, in their Lordships' opinion, an implied covenant on this part to do all things necessary to effect such transfer, which would include an application to the Revenue Officer to sanction the transfer,"
A contract for sale is performed only when property actually passes to the vendee and if for the purpose of title not only exe cution but registration of a deed be by the law essential the duty of the vendor will only end when he has registered the deed. In 27 Cal. L. J. 538 the facts of which are on all fours with the present case Mookerjee, J. said:‑
"As regards the claim to enforce registration of the document executed in his favour by his venders, he was no doubt bound to follow strictly the procedure prescribed by the Indian Regis tration Act before he could institute a suit under section 77 to compel registration. But as regards the alternative claim to enforce specific performance of the agreement to sell, there was really no answer to the suit. Although the vendors had executed the document, they could not be deemed to have completely performed their part of the agreement. The agreement in essence was not merely to execute a conveyance which until registered, would be inoperative in law, but to transfer the full title for themselves, to the plaintiff as purchaser. Such title could be transferred only by means of a registered instrument; consequently, the execution of the conveyance, not followed by registration, could not be regarded as fulfilment of the contract. The true position then is that the agreement to transfer remained unperformed and the plaintiff was entitled to proceed against his vendors to compel them to fulfil their contract."
In 12 Cal. L J 464, the learned Judges dealing with an argument that if a deed has been executed the contract is no longer executory and cannot be specifically enforced, said:‑
"it has been argued by the learned vakil for the appellant that the mere execution of a lease by the defendants did not convert the executory contract into an executed contract, that the agree ment between the parties was that the defendants would execute in favour of the plaintiff a lease and register it so as to make it an instrument operate in law and that the mere execution of the document which was never registered by reason of the default of the defendants was not complete performance of the contract. In our opinion, this contention is well founded and must prevail."
When a vendor executes a deed of sale but it remains unregis tered and the vendee sues for specific performance of the original contract the question that is to be considered is whether there is a subsisting contract for sale or not. If the contract be subsisting the vendee has a statutory right, subject to the provisions of the Specific Relief Act to have the contract performed. The suit cannot be defeated merely because another deed which was executed had not been registered. Of course, if on examining the facts of a particular case the Court reached the conclusion that the conduct of the vendee amounted to a non‑performance of the part of the contract or to a prevention of the vendor from performing his part, then the contract may, on account of the provisions of the contract Act, be held to have come to an end. However, the matter must be decided in each case by application of the provisions of the Contract Act.
A vendor who executes a sale deed may either keep it with himself or hand it over to his vendee. If he keeps it himself and if the time for registration has expired or on account of the provisions of section 77 of the registration Act, the vendee is unable to get the document registered he can only sue for specific performance and the vendee not being in any way in default there could be no defence to the suit. The vendee cannot force the vendor to present it for registration. If on the other hand he transfers or hands over the document to the transferee does his obligation to get it registered come to an end The vendee may take possession of the deed only as a matter of precaution. The vendor would have the right to call upon him to hand over the deed so that he may get it registered. The vendee may have already paid the whole money and may have fully performed his part of the contract. Even if the vendee had agreed to present the document for registration himself that may be only a sort of collateral contract which would not lead to an inference that the terms of the original contract have in any way been altered. From the mere fact of the vendee taking possession of the deed a partial waiver of the rights under the contract could not be inferred. If on being asked by the transferor to hand over the document to him for registration the transferee refuses the question may arise whether he is not preventing the performance of the contract himself. In any case it will have to be decided on the facts of each case whether there is still a subsisting contract and the suit cannot be barred by the mere fact that the document already executed remains unregistered.
The argument that to decree a suit for specific performance would be tantamount to a decree for registration of the executed deed assumes that the two remedies are equal. It does not need an elaborate examination of the matter to show that this is not so. If the transferor after executing the deed which remains unregis tered has already transferred the property to another person who is a bona fide transferee for value without notice of the contract it will make all the difference to the plaintiff whether he is or is not entitled to a decree for registration of the deed. It will not avail him that his suit for specific performance is not barred for it would be dismissed as against Vie transferee. If a vender has created a mortgage in the meantime and the mortgagee is a bona fide transferee for value without notice the plaintiff will get specific performance only subject to the mortgage. On the other hand, if the plaintiff were able to get a decree for registration of the deed he would remain altogether unaffected by any transfer subsequent to the deed. A remedy for specific performance is only a discretionary remedy which is liable to be defeated on any equitable ground. The right to get the document registered is a statutory right to which the plaintiff would be entitled on mere proof of the execution of the deed. Questions of stamp on the unregistered deed and of mesne profits may also be of importance when the property involved is large. If the sale deed already executed is registered the vendee would be entitled to mesne profits from the date of the sale deed. It is obvious that by losing the remedy for registration of the deed though a suit for specific performance be not barred the vendee may suffer a great deal.
It would be clear when I deal with the other Madras cases that in none of them has the above line of reasoning of Coutts Trotter, C. J. been adopted for holding that a suit for specific performance would not lie.
Another reason given by the learned Judge for refusing specific performance is stated as follows:‑‑
"And it must be remembered that although in this country the remedy of specific performance is a statutory remedy, it nevertheless is simply a crystallisation into statutory form of an equitables remedy to which laches was, as it is to all equitable claims, an answer. How it can be said that a man who is given an express statutory remedy by an Act of Legislature under section 77 of the Registration Act and has failed to take advantage of it has not been guilty of laches and is entirely free from blame passes my comprehension. It appears to me that a man who has failed to adopt the remedy expressly provided by the statute cannot come to this Court and ask for an exercise in this favour of a discretionary and equitable remedy ".
I need only refer to the present case to show that the plaintiff may not have been guilty of laches at all. Here the suit is brought within a month of the execution of a document. According to the Madras view he may have misconceived his remedy but there are obviously no laches.
I may also refer to that part of A I R 1926 Mad. 530 where the learned Judge, while referring to the acceptance by the learned Judges in 12 Cal. L J 464, of an unregistered sale deed for proof of the alleged contract of sale, says, "I should have thought it a very vicious method of construction to say that a document which purports to be one thing, is to be allowed to be treated when it is found imperfectly to contain what it purports to be as a valid document of a different order altogether." The sale deed had not been interpreted by the learned Judges of the Calcutta High Court as an agreement to sell but as evidence of such agreement, and now after 1929 the proviso to section 49 of the Registration Act is a complete answer to the argument.
In Venkatasami v. Kristayya (I L R 16 Mad. 341), which is the case followed in A I R 1926 Mad. 530, the learned Judges while accepting the contention of the appellant that suit did not lie said:‑
"There remains the question whether plaintiff can have a decree such as the Lower Courts have given him for execution and registration of another document. In our opinion he is entitled to no such relief. The fallacy of the Lower Courts consists in treating the document as evidencing merely an agreement to transfer the mortgage, whereas it purports to be an operative transfer of the mortgage. If it had been merely an agreement to transfer contemplating a future formal deed of transfer, it would not have required registration, section 17 (h). The agreement to transfer the mortgage was so far carried out that the deed of transfer was executed and no suit will lie to compel defendant to do that which he has already done. The only act wanting on his part to complete the contract was to register the deed of transfer, and this act, as we have shown, he could only be compelled to do by the proper proceeding under the Registration Act, followed by s it under section 77, if plaintiff failed to obtain his rights by such proceedings."
Two reasons are being advanced. The first is that the document is inadmissible in evidence for want of registration This argument whether valid or not at the time is no longer good in view of the proviso to section 49 of the Registration Act, which allows unregistered documents affecting immovable property to be put in evidence for proving agreements to Transfer. The second reason advanced by the learned Judges is that the transferor has executed a deed and all that remained to be done is its registration, which the vendee could have obtained, but has failed to secure. I have already stated above that the duty of execution as well as registration is that of the vendor and by mere execution he has not performed his duty. He had agreed to transfer and as yet he has not transferred. The right of the vendee must depend on whether there is a subsisting contract to sell. If there is the vendee has a statutory right to specific performance.
The next Madras case to be considered is A I R 1928 Mad. 344. Srinivasa Aiyangar. J., who has written this judgment, admits with respect to tile opposite view that. "There is a certain amount of reasonableness in this view." Dealing with the conflicting views as to the right to specific performance he says:‑
"It seem to me impossible to accede to the contention that a person who agrees to sell and convey property is bound not only to execute a proper conveyance once but go on executing as many conveyances as may be required by the vendor in respect of that property. Such an obligation cannot possibly be recognized. I do not wish it to be understood to say that there may not be proper cases apart altogether from the provisions of the Registration Act in which a purchaser of property who had accepted a document unregistered will not be entitled to come to Court and ask for specific performance of the contract on the ground that it has not been properly performed. But such a case must be made out on the particular facts."
The learned Judge's approach, in the above paragraph is
(I speak with respect) the same as mine though I am unable to agree with the several inferences he has raised. He does not hold the suit to be barred and is prepared to decree specific perfor mance if a proper case is made out. He is of opinion that ordi narily the acceptance of delivery of a document would amount to relieving the vendor of the duty of getting the document registered. I have already examined this aspect of the cases above and I am of the opinion, as I look at the matter, that the contract to transfer being still a subsisting contract the registration is the duty of the vendor.
The learned Judge proceeds; "If a purchaser of property who accepted an unregistered deed is given by the Registration Act certain facilities and rights for the purpose of getting the document duly registered and he does not adopt those steps he loses the right not because of anything done by the other party or omitted to be done by the other party but only because of the failure to take such steps to secure his rights as given to him under the law." The above quotation really contains the proposition on which the whole fabric of the case for the respondent is based. The present case itself m ay well show the result of accepting this proposition as correct. Here the vendor deliberately avoided going to the Sub‑Registrar, though asked to do so by the plaintiff. Is the defendant to be allowed to take advantage of his own default and so get over the contract. I have already stated that till the deed is duly registered the agreement to sell is not fully performed and unless it be held that in the meantime by some act of the vendee the vendor is entitled to put an end to the con tract and has put an end to it specific performance is not barred.
In Venkadari Somappa v. Ofcial Receiver, Bellary (A I R 1938 Mad. 801), the question arose whether an unregistered mortgage deed could be made the basis of a claim for specific performance. The learned Judges relied upon the observation of Coutts Trotter, C. J. in A I R 1926 Mad. 530, and refused to admit the deed as evidence of contract of sale. On their attention being drawn to the provisions of section 49 of the Registration Act, they said. "But that is not the same thing as saying that the unregistered instrument is itself the contract. In the present case it is not established that any separate agreement to mortgage was entered into prior to the execution of the mortgage deed, to prove which td mortgage deed might have been tendered is evidence." The learned Judges did not regard the claim for specific performance as barred.
That exhausts all the arguments put forward in Madras for disallowing a claim for specific performance. I will now refer to the cases that support the claim for specific performance. To Amer Chand v. Nathu and another (7 All. L J 887; 27 Cal. L J 53 8 and 12 Cal. L J 464). I have already referred. They all hold that despite the plaintiff has lost his remedy under section 77 of the Registration Act, he is entitled to specific performance of the original contract as the contract is not fully performed till the transferor has not only executed the deed but got it registered. 12 Cal. L J 454, after holding such suits maintainable considers the question of the admissibility of the deed to prove the agreement and holds it to be admissible. Oina Jha v. Chetu Mandar and others (A I R 1926 Pat. 89) takes the same view. In a recent case reported as Jhaman Mahlon v. Amrit Mahlon and others (A I R 1946 Pat. 62), Fazal Ali, C. J. has fully discussed the question and differing with A I P. 1926 Mad. 530, has held that the suit for specific performance is maintainable. In respectful agreement with those cases I hold that the suit for specific performance is not barred.
It may be objected that the suit as framed had asked for registration of the deed already executed. I regard the objection merely technical. The suit is substantially one for specific perfor mance of the original contract of sale and is attempted as such. The question whether specific performance of the original contract can be allowed was put in issue, argued in both Courts and both Courts have treated it as suit for specific performance of the contract of sale. In A I R 1926 Pat. 89, the suit as framed was only for registration of the deed already executed but specific performance was allowed I would, therefore, over‑rule this objection.
All that remains to be considered is whether the plaintiff is bound by the mortgage in favour of defendants Nos. 2 to 9. Under section 27 of the Specific Relief Act specific performance can be ordered against every transferee from the promisor except a bona fide transferee for value without notice of the contract. It was held in Bhup Narain v. Gokul Chand. (A I R 1934 P C 68), that the onus of proving want of notice is on the transferee. Ahmad Ali defendant states as D. W. 3 that he had no notice of the plaintiff's agree ment for sale and there is no doubt that being only, negative fact it may be proved by a bare denial in some cases. In the present case, however, the plaintiff is in possession of the land in dispute. Ahmad Ali defendant as D. W. 3 admitted that the plaintiff is in possession as mortgagee. Before me also counsel for the respondents admits the possession of the plaintiff. There is abundant authority for the proposition that possession is tantamount to notice of title of the party in possession He may have acquired possession under one title and may at the same time possess a document entitling him to have another interest trans ferred. The person who purchases the property shall be deemed to have notice of all his rights. The principle is well settled in England, vide, Taylor v. Stibbert ((1794) 2 Ves. 437). Allen v. Anthony ((1816) 35 E R 679 L C), Meux v. Maltby ((1818) 2 Swan. 277), Daniels v. Davison ((1809) 10 R R 171), Hunt v. Luck ((1902) 1 Ch. 428, C A), and has been adopted in numerous cases in India, vide Balchand Mahlon v. Bulaki Singh (A I R 1929 Pat. 284), Puthan Puravil v. Kandiyal (A I R 1917 Mad. 955), Baburam Bag and another v. Madhab Chandra Pallay and others (A I R 1914 Cal 333), Magu Brahma v. Bholi Das (19 C L J 352), Faki Ibrahim v. Faki Ghulam Mahidin (I L R 45 Bom. 910), Baba Sah and another v. Hajee Muhammad Akbar Sahib and others (A I R 1923 Mad. 563), Ibrahim v. Yousaf and others (A I R 1938 Lah. 39), Arura v. Gehna and another (A I R 1921 Lah. 146), Kondiba v. Nana Shidrao and others (I L R 27 Bom. 408), Umesh Chandra llaldar v. Umesh Chandra Bag and others (18 I C 46), Pindee and others v. H. Upa and another (A I R 1928 Rang. 237) and Fakira and another v. Jaswantraj Daulatram Marwadi (A I R 1917 Nag. 209). The leading English authority on this point is Daniel v. Davison where the Lord Chancellor said, "Where there is a tenant in possession under the estate, must be bound to inquire, on what terms that person is in possession that this tenant being in possession under a lease, with an agreement in his packet to become the purchaser, those circumstances altogether give him an equity, repelling the claim of a subsequent purchaser, who made no inquiry as to the nature of his possession. In Baburam Beg v. Madhab Chandra Pollay, when counsel urged that there was no finding that the purchaser had knowledge of the previous agreement; Jenkins, C. J. during the course of the argument said, "Notice will be implied of all his rights. The plaintiff ought to have enquired of the man in possession." In Magu Brahma v. Bholi Das, Mookerjee, J. observed: When a person purchases a property where a visible state of things exists which could not legally excise unless the property were subject to some burden, he is taken to have notice of the extent and nature of that burden. And thus if a person other than the vendor is in possession, it is sufficient to put a purchaser on enquiry as to the nature and extent of his interest, and the purchaser is bound by all the equities which the person in such occupation may have in the land." In A I R 1921 Lah. 146, the learned Judges said: "A subsequent purchaser, who wishes to establish his title on account of want of notice, is legally bound to enquire into the title of a tenant in possession." In A I R 1938 Lah. 39, the learned Judge said: "That matter has been disposed of in a judgment of the Patna High Court, reported in Balchand Mahton v. Bulaki Singly in which it has been held that if a person who is in possession of the property already‑ by virtue of another title, subsequently secures another title to that property by means of a document, which requires registration, but which has not been registered, the factum of possession prior to the subsequent acquisition of title puts a subsequent purchaser of the same property by means of a registered document on enquiry as to the title of the person already in possession and has the effect of postponing him to the title subsequently acquired by the person in possession." In I L R 27 Bom. 412, the learned Judges quoted with approval a passage from Hunt v. Luck "If a purchaser or a mortgagee has notice that the vendor or mortgagor is not in possession of the property he must make inquiries of the person in possession of the tenant who is in possession‑and find out from him what his rights are, and if he does not choose to d3 that, then whatever title he acquires as purchaser or mortgagee will be subject to the title or right of the tenant in possession. That, I believe, is a true statement of the law." I am in entire agreement with the principles enunciated and hold that the defendants Nos. 2 to 9 had notice of the contract.
I would, therefore, decree the suit for specific performance on payment of Rs. 565 to be paid to Inayat Ullah defendant. I would also grant a declaration that the mortgage in favour of defendants Nos. 2 to 9 is ineffectual against the plaintiffs. The relief of declaration that plaintiff is the owner in posses sion is refused. The plaintiff shall have his costs in all Courts against Inayat Ullah defendant only. As between the plaintiff and defendants Nos. 2 to 9, the parties will bear their own costs.
A. H. Appeal accepted.
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