1. Plaintiff is the petitioner. He has moved this Court in revision against an order dated 21-3-55 of Sub-ordinate Judge, 1st Court, Arrah, refusing the application of the plaintiff, purported to have been made under Order 18, Rule 3 of the CPC, for permission to reserve his right to adduce evidence by way of answer to the evidence produced by defendant 2.

2. The plaintiff on the basis of a contract for sale, alleged to have been executed by defendant 1 in favour of the plaintiff on 1-3-52, brought a suit for specific performance of contract under Section 27 of the Specific Relief Act on 2-6-52. On 7-7-52 the plaintiff filed an application for amendment of the 1 plaint, by which he wanted a new para 6(a) to be added, and, defendant No. 2 to be added as a party to the suit, on the allegation that subsequently the plaintiff had learnt that defendant 2 was a subsequent purchaser with notice of the prior contract, and he was not a transferee in good faith.

3. This application was allowed, with the result that defendant 2 was added as a party to the suit, and a new para 6(a) was added to the plaint. Defendant 2 filed her written statement thereafter on 12-9-52, in which she alleged that defendant 1 had executed a sale deed in her favour on 30-5-52, which was registered on 21-6-52, and that she was a transferee for value and without notice of the alleged original contract between the plaintiff and the defendant 1. On the pleadings of the parties, the court below on 21-3-55 recast the issues framed before, and one of the issues was: “Issue No. 4. Is defendant 2 a bona fide purchaser for value, without notice of the previous contract, if any?” On 16-3-55 the plaintiff filed a petition, as stated before, praying to allow him to reserve his right to adduce evidence on defendant 2 being a purchaser without notice in rebuttal. This application was considered by the court below on 21-3-55.

4. The learned Sub-ordinate Judge took the view that as the plaintiff had alleged in the plaint that defendant 2 had knowledge of the contract, but in spite of the knowledge she got a sale deed in respect of the house in suit from defendant No. 1, he, in the first instance, had to adduce evidence in support of all his allegations against the defendants, and, then the defendants would adduce evidence in rebuttal. In that view of the matter, he rejected the plaintiff's applications as being frivolous and unwarranted at that stage.

5. It is against this order that the plaintiff has come up in revision before this Court.

6. Mr. D.N Varma, appearing for the petitioner, has argued that the court below has not correctly appreciated the scope of a suit brought under Section 27 of the Specific Relief Act, and, particularly, of clause (b) of the section. He, therefore, contends that as the onus to prove that defendant 2 was a transferee for value, who had paid his money in good faith, and without notice of the original contract, was on her, the plaintiff had a right to ask the Court to permit him to reserve his right to adduce evidence in its rebuttal.

7. Mr. Krishna Ballabh Narain Singh, appearing for defendant 1, the vendor, has contended that it is true that in law the ones is on defendant 2, the subsequent purchaser, but in view of the allegations made in para 6(a) of the plaint, the plaintiff has taken upon himself to prove all facts, and as such he has to adduce evidence first, even with regard to the transfer in favour of defendant 2. Mr. Chandi Prasad, who appears for deft. 2, the subsequent purchaser, has supported Mr. Singh, and further contended that the initial onus being on the plaintiff to prove the contract between him and the defendant 1, it was for the plaintiff to prove all facts, even with regard to the purchase of defendant 2, alleged in the plaint.

8. The short question for determination therefore, in the present application is, whether the plaintiff should be allowed to reserve his right to adduce evidence as far as the purchase of defendant 2 is concerned. Order 18, Rule 3 of the CPC, provides that where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.

9. It is clear from the provisions of rule 3 of Order 18 that in a case where the burden of proving some of the issues lies on the defendant, then in such a case it is open to the plaintiff, it he so chooses, to reserve his evidence by way of rebuttal to the evidence produced by the defendant.

10. The question then for consideration is, in the circumstances stated above, on whom did the onus lay? In this connection it is necessary to examine the provisions of Section 27 of the Specific Relief Act. Section 27 runs thus:

“27. Except as otherwise provided by tin's Chapter, specific performance of a contract may be enforced against—

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract, ‘except a transferee for value who has paid his money in good faith and without notice of the original contract; (underlined (here into ‘’) by me).

11. It will appear from the above, that the section lays down a general rule that the original contract may be specifically enforced against a subsequent transferee, but allows an exception to that general rule, not to the transferor, but to the transferee, and, it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of a transfer which, ‘prima facie’, he had no right to get. In laying down the above proposition of law, their Lordships of the Judicial Committee of the Privy Council in Bhup Narain Singh v. Gokul Chand Mahton, 61 Ind App 115 at p. 122 : (AIR 1934 PC 68 at p. 70) (A), observed:

“Further, the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie, and the provisions of Sections 103 and 106 of the Indian Evidence Act, 1872, have a bearing on the question. The plaintiff does not necessarily have knowledge of either matter”.

12. To the same effect is the decision of their Lordships of the Judicial Committee in the subsequent case ‘Shankarlal Narayandas v. New Mofussil Co. Ltd., 73 Ind App 98 : (AIR 1946 PC 97) (B), in which the case of Bhup Narain Singh (A), referred to above, was followed, and their Lordships at page 104 (of 73 Ind App): (at p. 97 of AIR), reiterated the principle laid down earlier that “the burden of proving good faith and lack of notice lay on the subsequent purchaser”. There can, therefore, be no dubt that the onus to prove that she was a transferee for value, who had paid her money in good faith, and without notice of the original contract in favour of the plaintiff, was on the defendant 2. The question is, whether this onus has been shifted on the plaintiff, because of the allegations made in para 6(a) of the plaint, as contended by the learned counsel for the opposite party. The exception mentioned in S. 27(b) dearly imputes a notice to the subsequent transferee of the prior contract of sale, so as to prevent the subsequent transferee from asserting his rights as against the prior contracted whose rights have terminated in a prior contract of sale.

13. It is true that the plaintiff has to establish the contract of sale between him and the vendor; but as soon as the plaintiff establishes the prior contract, the onus of proof that a third party has subsequently purchased the property bona fide, and without notice, is on the party who claims to be such purchaser. The general rule, under the Indian Evidence Act, is that where a party claims exemption from a general provision of law, the onus lies upon him to prove that he comes within the exception. In view of this general rule, in a suit for specific performance of an agreement, for the sale of land as against the vendor and a subsequent purchaser from him, the burden, therefore, lies upon the latter to show that he is a transferee in good faith for valuable consideration, and without notice.

14. It is not for the plaintiff to show that the subsequent purchaser had notice of the previous contract in favour of the plaintiff. The onus of such a negative issue of proving that the subsequent purchaser had no notice of a prior claim is ordinarily discharged by a denial and by a negative evidence. Very little evidence, and, in certain circumstances, a mere denial, regarding want of knowledge of the plaintiff's contract would discharge this onus and shift the onus on the plaintiff. But under no circumstance, the initial onus, which is on the subsequent transferee, shifts on the plaintiff at the first stage, even when, the plaintiff mentions in his plaint the reason why he is making the subsequent purchaser a party, and how he came to know that the person concerned was a subsequent purchaser. When the exception mentioned in clause (b) of section 27 clearly imputes a notice to the subsequent transferee of the prior contract of sale, it cannot be said, unless the plaintiff admits that the subsequent transferee had no notice, that the onus lies on the plaintiff to prove that the transfer in favour of the subsequent purchaser is without notice. This procedure would obviously negative the law which enjoins the subsequent purchaser to prove that he or she is a purchaser for value and with consideration and without notice. In my opinion, therefore, there is no substance in the contention of the learned counsel for the opposite party. The learned Sub-ordinate Judge has not at all applied his mind to the exception contained in clause (b) of Section 27 of the Specific Relief Act. He has given no reason as to why a mere mention by the plaintiff of the fact that defendant 2 had knowledge of the prior contract would shift the onus on the plaintiff, although in law the initial onus in such a case lay on the subsequent purchaser. In my opinion, therefore, the order of the court below is not in accordance with law, and must be reversed. The plaintiff's application filed on 16-3-55, purporting to be under Order 18, Rule 3 of the CPC, should be allowed, and the plaintiff should be permitted to reserve his evidence by way of answer to the evidence, which might be adduced by defendant 2, after the plaintiff has adduced his evidence regarding the contract between himself and defendant 1. It is only when the plaintiff has adduced evidence regarding the contract set up in the plaint between himself and the defendant 1, and after defendant 1 has adduced her evidence in rebuttal of the evidence adduced by the plaintiff regarding the contract between the plaintiff and defendant 1, that the turn of defendant 2 to adduce her evidence in support of her subsequent purchase will come, and, after that is done, the plaintiff will be at liberty to adduce his evidence in rebuttal of the same on issue no. 4 only.

15. In the result the rule is made absolute; the application is allowed, subject to the observations made above, and the order dated 21-3-55 is set aside.

16. There will be no order for cost.

D.H.Z

17. Revision allowed.