- (1.) Shrimati Shantibai, respondent No. 1 - hereinafter referred to as the plaintiff - brought a suit for the specific performance of an agreement dated March 1, 1960, to sell the property in suit situate at Bombay Bazar, Khandwa, executed by Dagdoo, respondent No. 2 - hereinafter referred to as the vendor - and Dr. Govinddas and Seth Goverdhandas defendants - appellants before us, who had purchased the said property. The Trial Court dismissed the suit but the High Court allowed the appeal and decreed the suit. Having obtained certificate of fitness from the High Court, the appellants have filed this appeal before us.
(2.) The main point involved in this appeal is whether the appellants had notice of the agreement to sell dated March 1, 1960, between the plaintiff and the vendor. The Trial Court held that the appellants were bona fide purchasers without notice of the prior agreement. The High Court, on the other hand, held that the appellants had notice of the previous agreement. Incidentally, the question of the nature of onus of proof which the appellants had to discharge to prove their bona fide has been debated before us. We have been taken through the evidence of the relevant witnesses and we are of the opinion that the High Court came to the correct conclusion.
(3.) According to the plaintiff, Seth Goverdhandas, appellant, had express notice of the agreement dated March 1, 1960 (Ext. P-1) on the very day when the agreement was entered into. The version on behalf of the plaintiff is given by plaintiff's husband, Hemraj Singh Chauhan, witness No. 1 for the plaintiff. as follows: "Souda-chitthi was scribed by Shrikrishna Munshi who is Munshi to Mohammed Hussain Vakil. The house of Vakil Saheb is in front of my shop. After scribing Souda-chitthi all of us went to Vakil Saheb for showing Souda-Chitthi; for going to the house of Vakil-Saheb we people crossed the road which is to the front side of the shop and reached the shop of Hayatkhan. Hayatkhan and Goverdhandas were present there. Hayatkhan questioned as to why he was accompanied with so many persons Thereupon I replied that Souda of the house of Dagdooji was made. I had learnt that Goverdhandas also was to purchase this house and he was roaming about since the morning. I had also told him that Souda of the house of Dagdoo was made. The house of Vakil saheb is adjacent to the house of Hayatkhan and he resides on the upper storey.";