JUDGMENT
R.L. Narasimham, C.J.
1. This is a Letters Patent Appeal by the plaintiff against the Judgment of a Single Judge of this Court (Mahapatra, J.) dated the 27th February, 1961, dismissing his appeal (First Appeal No. 345 of 1958) against the judgment of the 3rd Additional Subordinate Judge of Hazaribagh in a suit for specific performance of contract of sale. The property in question consists of a house in holding No. 1085 in Ward No. 7 in the town of Hazaribagh, The Plaintiff was admittedly occupying a portion of the house as a tenant under the previous owner. He alleged that on the 11th December, 1955, defendants 1 and 2 executed an agreement to sell the house to him for a consideration of Rs. 6,000/- and that on the date of the agreement Rs. 1,000/- was paid in cash by the plaintiff and that the previous payment of Rs. 500/- and adjustment of a previous loan of Rs. 1,600/- were also mentioned in the deed of agreement. It was further alleged that notwithstanding the said agreement to sell, defendant No. 1 sold the house by two sale-deeds dated the 29th December, 1955, and 2nd January, 1956, duly registered, to defendant No. 3 for a consideration of Rs. 8,000/-. Defendant No. 4 is the husband of defendant No. 3. Soon after the purchase, defendant No. 3 issued a notice on the plaintiff to vacate the house, and then the plaintiff brought the present suit for specific performance of the contract of sale on the basis of prior agreement in his favour. Defendant No. 2 is the widowed mother of defendant No. 1. It was alleged that she re-married and left the place and had no further interest in the property.
2. The trial court disbelieved the evidence about the execution of the agreement on the 11th December, 1955, and was inclined to take the view that it was an ante-dated document brought into existence after the execution of the sale-deeds in favour of defendant No. 3. It also held that defendant No. 3 was a bona fide purchaser for value who had paid the consideration in full and that she had no notice of the alleged agreement in favour of the plaintiff. On appeal the learned Single Judge disagreed with the trial court so far as the agreement was concerned and held that it was a genuine document executed on the date given in the document, namely, the 11th December, 1955, but he confirmed the finding of the trial court as regards defendant No. 3 being a bona fide purchaser for value without notice of the earlier contract. Hence he dismissed the appeal, though for reasons slightly different from those given by the trial court.
3. In view of the Full Bench Judgment of this Court in Smt. Asho Devi v. Dukhi Sao Mr. Lal Narain Sinha for the appellant quite properly conceded that questions of fact could not be agitated before this Court in a Letters Patent Appeal of this type. He, however, urged that the finding of the learned Single Judge is vitiated by the following errors of law:
(1) The burden of proof of absence of knowledge of the prior agreement was wrongly shifted on the plaintiff.
(2) Proper inference was not made of the avoidance of the witness-box by defendant No. 3.
(3) Proper inference was not made of the failure of the purchaser, namely, defendant No. 3, to examine the title deed of the property.
(4) Constructive knowledge of the prior agreement should have been attributed to defendant No. 3, because the plaintiff was admittedly occupying a portion of the house as a tenant from before to the knowledge of this defendant.
4. In my opinion none of these contentions can prevail. It is doubtless well settled that to defeat a suit for specific performance of contract the burden initially lies on the subsequent purchase to prove want of notice. But, as pointed out in Ramchander Singh v. Bibi Asghari Begam and Anr. A.I.R. 1957 Pat. 224 this burden is somewhat light, and even a mere denial may suffice. Moreover, when both parties have given evidence, the question is ultimately one of appreciating the evidence, and any discussion about burden of proof becomes somewhat academic. The learned Single Judge has no where stated that the initial burden of proving absence of notice lies on the plaintiff. He has, however, scrutinised the evidence adduced by both parties on the question of want of knowledge of the prior agreement. He gave due weight to the admission of the plaintiff to the following effect: “I can not say if Laxmi Debi (meaning defendant No. 3) knew about my contract for sale, but she lives close by and must be knowing it.” Moreover, I find that during the cross-examination of this plaintiff it was brought out that excepting himself, defendant No. 1 and his mother, defendant No. 2, and his partner Amarnath, nobody knew about the negotiation which led to the execution of the agreement in question and that he did not consult anyone. He also admitted that he did not call any people of the Mahalla or relations of Rajendra (defendant No. 1) or his castemen to attest the agreement. Thus when from the Plaintiff’s own admission it is clear that the agreement was executed after secret negotiations and that no one of the Mahalla or the castemen was asked to attest the same, it is open to a court of fact to hold that defendant No. 3, though living nearby, did not have knowledge of the same. It is true that defendant No. 3 has not come to the witness-box, but her husband has given evidence as D.W. 10 and he has emphatically denied in examination-in-chief that his wife purchased the house with knowledge of the agreement in favour of the plaintiff. A husband is undoubtedly competent to depose about his wife’s knowledge of the agreement, and I find that this portion of his evidence has not been challenged in cross-examination. It is true as rightly pointed out by the learned Single Judge, that husband’s knowledge and wife’s knowledge may not necessarily be the same, and even if the evidence of some of the plaintiff’s witnesses as regards the husband’s knowledge of the agreement is accepted, it does not necessarily follow that this knowledge must have been communicated by him to his wife. But when the husband says on oath that his wife had no knowledge of the agreement and that portion of the evidence is not challenged in cross-examination and it gains considerable strength from the admissions made by the plaintiff himself regarding the circumstances under which the negotiations prior to the execution of the agreement took place and the circumstances under which the agreement was attested, it is open to a court of fact to hold that the initial burden was discharged by defendant No. 3 and that she had no knowledge of this agreement. It is true that it would have been much better if defendant No. 3 had appeared in the witness-box, but it is open to a court of fact not to attach much importance to her avoidance of the witness-box in view of the circumstances mentioned above.
5. The title deed in respect of the house is admitted to be the patta granted by the Hazaribagh Municipality. The husband of defendant No. 3 admitted that he did not see the patta granted by the Hazaribagh Municipality. This patta was produced by the plaintiff whose evidence was to the effect that it was handed over to him by the previous owner (defendant No. 1). The explanation given by D.W. 10, the husband of defendant No. 3, for not seeing the patta or obtaining possession of the same when the two sale-deeds were executed in favour of his wife is that on the date of the execution of the first kebala, i.e. 29th December, 1955, the vendor, defendant No. 1, said that as he had not sold the entire house he would retain the patta. On the date of the execution of the second Kebala, i.e. 2nd January, 1956 he added that as he had sold a portion of the property to one Bhagatji he would not hand over the Patta. Thus some explanation for the purchaser not seeing the title-deed has been given, and though the learned Single Judge has not fully discussed about the legal effect of not scrutinising the document of title at the time of the execution of the sale-deed, nevertheless as the two courts have concurrently held that defendant No. 3 was a bona fide purchaser for value it will not be proper for this Court to interfere with this finding on this ground alone. Omission to examine the document of title is only one of the circumstances to be taken into consideration in holding whether the subsequent purchaser was a bona fide purchaser, and the concurrent findings of the two courts of fact on this point cannot be disturbed merely because there was no full discussion of this circumstance.
6. Lastly I take up the main question of law urged by Mr. Lal Narain Sinha, namely, that the occupation of a portion of the house by the plaintiff as a tenant from before is itself constructive notice to the subsequent purchaser, not only of the existence of the tenancy between the plaintiff and defendant No. 1 but also of the collateral agreement. This is a well known principle of English law based on Daniels v. Davison 16 Ves. June 249 which has been followed in several cases in India (see I.L.R. 27 Bombay 406 : I.L.R. 27 Bom. 406 and I.L.R. 40 Calcutta 565 : I.L.R. 40 Cal. 565). In I.L.R. 40 Calcutta 565, Jenkins, C.J. observed, “The occupation of a property by a tenant ordinarily affects one who would take a transfer of the property with notice of that tenant’s rights, and if he chooses to make no enquiry of the tenant he cannot claim to be a transferee without notice.” Here admittedly neither defendant No. 3, nor her husband defendant No. 4, made any enquiry from the plaintiff before obtaining the sale-deeds from defendant No. 1. But this principle of English law has not been applied in its full rigour in India where the tenant is not in occupation of the entire holding but is in occupation of a portion of the same. Thus in the Full Bench decision of the Patna High Court in Hari Charan Kuer v. Kamla Rai 2 P.L.J. 513 their Lordships observed : “There appears to be no case in the books in which the courts have been asked to apply the doctrine of Daniels v. Davison to a case like the one before us in which the person who had the contract to purchase in his pocket was in possession not of the entire property sold to another but only of a small portion of that property.” Similarly, in S. Parasthasarathy Aiyar v. M. Subbaraya Gramany A.I.R. 1924 Mad. 67 it was pointed out at page 69 that the aforesaid principle of contructive notice should not be extended too far. To quote their Lordships, “It has, however, frequently been laid down that that doctrine has gone to its full length and must not be extended, and it has never been held that it is the duty of a proposed purchaser or mortgage to enquire of every person who may be on the premises or any part of those premises.” Here, on the admission of the plaintiff himself, there were three persons in occupation of the disputed house. The plaintiff was occupying the shop portion at a monthly rental of Rs. 15/-. The inner portion of the house and the rooms were in occupation of the owner, namely, defendant No. 1, his mother and grandmother. Another portion of the house was also at that time in the occupation of a doctor named Anand Karu Sarkkar. Under such circumstances the purchaser was not bound to make enquiry from every tenant in occupation of a portion of the house, especially when the owner himself was occupying a portion and enquiry had been made from him. In my opinion, therefore, no error of law arises on the principle laid down in Daniels v. Davison 16 Ves. June 249.
7. For these reasons the appeal is dismissed with costs.
U.N. Sinha, J.
8. I agree.