This appeal arises out of a suit brought by the Plaintiff-Appellant to enforce specific performance of a contract for sale of certain immoveable property against the Defendant No. 2, the vendor, and the Defendant No. 1, who is a purchaser from the Defendant No. 2 of the property in dispute, on the allegation that the predecessor in interest of the Defendant No. 2 had entered into an ekrarnama or agreement with the Plaintiff and another person to sell the property to them if it was sold at all; that subsequently there was a verbal contract between the Defendant No. 2 and the Plaintiff for the sale of the same to the latter for Rs. 100; and that the Defendant No. 1, who had notice of the ekrarnama and of the verbal contract, had, in spite of such notice, purchased the property from the Defendant No. 2.
The defence of the Defendant No. 1 was a denial of the alleged verbal contract, a denial of notice of the verbal contract or of the ekrarnama, and a denial of the Plaintiff's right. The Defendant No. 2 also denied the Plaintiff's right generally.
The first Court found for the Plaintiff and gave him a decree. On appeal by the Defendants the lower Appellate Court has reversed that decree and dismissed the Plaintiff's suit, holding that the alleged verbal contract was not proved; that the ekrarnama could not be enforced as the suit was not based upon it, and as moreover the ekrarnama was not between the Plaintiff and the Defendant No. 2, nor for exactly the same subject-matter as that now in dispute; that the Defendant No. 1 had no notice of the ekrarnama or of any verbal contract for sale; and that the registration of the ekrarnama was not sufficient notice within the meaning of sec. 27 of the Specific Relief Act.
In second appeal it is contended on behalf of the Plaintiff-Appellant that the lower Appellate Court is wrong in holding that the registration of the ekrarnama was not sufficient notice in law to the Defendant No. 1, and that the suit was not based upon the ekrarnama. It is further contended that the fact of the suit not being exactly between the same parties as those who entered into the ekrarnama makes no difference when the suit is brought by one of the parties in whose favour the ekrarnama was executed on the allegation that the other party who was jointly interested had waived the benefit of the ekrarnama.
The first question for consideration in this appeal is whether the registration of the ekrarnama was sufficient notice to the Defendant No. 1 within the meaning of sec. 27 of the Specific Relief Act. If this question is answered in the affirmative it will then be necessary to consider the other questions raised. But if it be answered in the negative, then, as admitted by the learned pleader for the Appellant, it will be unnecessary to go into those questions. “Notice” is not defined in the Specific Relief Act. It has been found by the lower Appellate Court as a fact that there was no actual notice to the Defendant No. 1, either of the agreement or of the alleged verbal contract. The only notice relied upon is constructive notice by reason of the registration of the ekrarnama. In sec. 3 of the Transfer of Property Act “notice” is defined in these words:—“A person is said to have notice of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent under the circumstances mentioned in the Indian Contract Act, 1872, sec. 229.” This is as comprehensive a definition of “notice” as any that has ever been given. Notwithstanding the comprehensive definition of the term it has been held by this Court in the case of Inderdawan Pershad v. Gobind Lall Chowdhry that registration does not amount to notice within the meaning of sec. 81 of the Transfer of Property Act. If that is so, we see no reason why a different view should be taken as to the effect of registration on the question of notice in a case coming under sec. 27 of the Specific Relief Act. Registration is not constructive notice under the English. Law, see the notes to Le Neve v. Le Neve. We may add, as was remarked by Mr. Justice Pontifex in the case of Doorga Narain Sen v. Baney Madhub Mozumdar, that the doctrine of constructive notice has been pushed to its extreme limit in England, and that in this country it requires even more careful application against a purchaser for value.
The learned vakil for the Appellant relies upon the case of Lakshmandas Sarup Chand v. Dasrat. That case was considered by this Court in the case of Inderdawan Pershad v. Gobind Lall Chowdhry, and was dissented from, and it has also been dissented from by the Madras High Court in the case of Shan Maun Mull v. Madras Building Co.. In this state of the authorities we think it right to follow the view taken of the effect of registration on the question of notice in this Court in the case of Inderdawan Pershad v. Gobind Lall Chowdhry, and we must hold that the registration of the ekrarnama was not constructive notice to the Defendant No. 1 within the meaning of sec. 27 of the Specific Relief Act. That being so, it becomes unnecessary to consider the other questions raised in the appeal, and the appeal must be dismissed with costs.
J.N.D
S.C.S
Appeal dismissed with costs.