Judgement Appeal (No. 1 of 1932) from a decree of the High Court (June 12, 1930) reversing a decree of the Subordinate Judge of Patna (March 31, 1928). The appellant instituted a suit for specific performance of a contract of November 26, 1926, for the sale to him of certain immovable property, and had obtained a decree against defendants Nos. 1, 2, and 3. The present appeal related only to defendant No. 4 (respondent No. 1), the decree against whom had been set aside by the High Court. He claimed title to the property under a registered sale-deed of December 22, 1926 ; a decree was prayed for against him under s. 27 (b) of the Specific Relief Act, 1877. The facts of the case and the terms of the above section appear from the judgment of the Judicial Committee. Among the issues framed were (6.) Had defendant No. 4 knowledge of any contract between the plaintiff and defendant No. 1 before execution of the sale-deed in his favour ? (7.) To what relief, if any, is the plaintiff entitled ? The trial judge made a decree for specific performance against all the defendants. Applying Muhammad Sadik Khan v. Masihan Bibi (( 1930) I. L. R. 9 P. 417.) he held that, the plaintiff having proved a prior contract, the onus was upon defendant No. 4 to prove that the transfer to him was bona fide for value and without notice, and that he had not adduced satisfactory evidence that he had no notice of the plaintiffs contract, nor that he was a bona fide purchaser for consideration. On an appeal by defendant No. 4 to the High Court (Wort and Adami JJ.) the decree against him was set aside. Wort J. said, with regard to whether defendant No. 4 had notice of the prior contract, that there was no evidence apart from that of the plaintiff, which had been disbelieved ; he would hold that it had not been established that defendant No. 4 had knowledge of the contract. On the question whether defendant No. 4 had paid the money he said there was no evidence. Adami J. agreed with the above reasons for allowing the appeal. He was further of opinion, differing from Wort J., that by the agreement of November 26, 1926, the vendor sold only his own interest in the property. 1933. Nov. 28, 30. On the question whether defendant No. 4 had paid the money he said there was no evidence. Adami J. agreed with the above reasons for allowing the appeal. He was further of opinion, differing from Wort J., that by the agreement of November 26, 1926, the vendor sold only his own interest in the property. 1933. Nov. 28, 30. Sir Dawson Miller K.C. and Jinnah for the appellant. Upon the true construction of the agreement of November 26, 1926, defendant No. 1 as karta agreed to sell to the plaintiff the whole of the family share in the property. Under s. 27 (6) of the Specific Relief Act, 1877, the appellant was entitled to a decree against respondent No. 1 (defendant No. 4). There have been a series of decisions in India under which the onus was upon him to prove that he was a transferee for value who had paid his money in good faith and without notice of the original contract. [Reference was made to Himatlal v. Vasudev (( 1912) I. L. R. 36 B. 446.), and other cases mentioned in the judgment, also to Hem Chandra De Sarkar v. Amiyabala De Sarkar. (( 1924) I. L. R. 52 C. 121.)] The above decisions apply the principle laid down by the Board in Varden Seth Sam v. Luckpathy Royjee Lallah (( 1862) 9 Moo. I. A. 303.), in which the question was analogous to that arising under s. 27 (6). The trial judge was right in holding that the onus of proof had not been discharged. The High Court treated the onus as being on the plaintiff; they decided in his favour after finding that there was no satisfactory evidence whether defendant No. 4 had notice, or whether he had paid the price. Dunne K.C. and Mockett for respondent No. 1. By the agreement of November 26, 1926, defendant No. 1 sold only his own interest in the property. The agreement does not purport to be made by him as karta, or on behalf of the family ; the necessity to which it refers is not stated to be the legal necessity of the family. Even if the contract of sale was on behalf of the family, the evidence shows that defendant No. 4 was within the exception to s. 27 (6) of the Specific Relief Act, whether or not the onus of proof was upon him. Even if the contract of sale was on behalf of the family, the evidence shows that defendant No. 4 was within the exception to s. 27 (6) of the Specific Relief Act, whether or not the onus of proof was upon him. In his evidence he stated that the money was paid by him and that he did not then know of the contract now sued on, and there was no ground for not accepting his evidence. The plaintiffs evidence was disbelieved by both Courts. The plaint did not deny the payment and no specific issue was framed about it. But the onus of proof was upon the plaintiff Peerkha Lalkha v. Bapu Koshiba Mali. (( 1923) 25 Bom. L. Rptr. 375.) That decision is to be preferred to those relied on by the appellant having regard to the decision of the Board in Official Assignee v. Khoo Saw Cheow ([ 1931] A. C. 67.), and its application to the Indian Insolvency Acts in Official Receiver v. P. L. K. M. R. M. Chettyar Firm (( 1930) L. R. 58 I. A. 115.) and Pope v. Official Assignee. (( 1933) L. R. 60 I. A. 362.) There is no material difference between the language of the sections there in question and that of s. 27 (6) of the Specific Relief Act, nor in the position of the parties. Having regard to s. 54 of the Transfer of Property Act, 1882, the plaintiff had merely such right to specific performance as he could show that s. 27 of the Specific Relief Act gave him. Defendant No. 4 on the other hand had a good title under the registered sale-deed subject to the right of the plaintiff under s. 27 (6). In Mohammad A slam Khan v. Feroze Shah (( 1932) L. R. 59 I. A. 386.) the Board left open the question of the onus of proof under s. 27 (6). In any case specific performance should not be granted to the plaintiff, as the sale to defendant No. 4 was more beneficial to the minors Chhitar Mal v. Jagan Nath Prasad. (( 1906) I. L. R. 29 A. 213.) Sir Dawson Miller K.C. in reply. The language of the sections of the insolvency Acts construed by the Board in the cases referred to, and their purpose, materially differ from those of s. 27 (6) of the Specific Relief Act. Dec. (( 1906) I. L. R. 29 A. 213.) Sir Dawson Miller K.C. in reply. The language of the sections of the insolvency Acts construed by the Board in the cases referred to, and their purpose, materially differ from those of s. 27 (6) of the Specific Relief Act. Dec. 18. The judgment of their Lordships was delivered by LORD THANKERTON. The appellant, who is the plaintiff in a suit for specific performance of a contract for sale of certain immovable properties, appeals against a judgment and decree of the High Court of Judicature at Patna, dated June 12, 1930, which reversed the judgment and decree of the Subordinate Judge of Patna, dated March 31, 1928, and dismissed the suit. In the suit, which was filed on January 27, 1927, the appellant seeks specific performance of an agreement dated November 26, 1926, under which he alleges that defendant No. 1 (now respondent No. 2), as karta of his joint family, which consisted of himself and his two sons, defendant No. 2 (now represented by respondents Nos. 2 and 4) and defendant No. 3 (now respondent No. 4), agreed to sell to him certain property of the joint family at the price of Rs. 13,000. The present respondent No. 1, who was impleaded as defendant No. 4, claimed the property in suit by virtue of a registered sale-deed, dated December 22, 1926, by defendant No. 1, for himself and as guardian of his two minor sons, defendants Nos. 2 and 3, in favour of defendant No. 4, at the price of Rs.15,000. Defendant No. 1 did not appear to defend the suit, but defendants Nos. 2 and 3 put in a written statement by their guardian ad litem, denying the plaintiffs contract, and, alternatively, in the event of the contract being held proved, denying that defendant No. 1 was entitled to alienate their interests, as the sale was not for family necessity or for their benefit. All the defences of defendants Nos. 2 and 3 were rejected by the Subordinate Judge, and no appeal was taken against that decision to the High Court. Accordingly, the issue now lies between the plaintiff-appellant and defendant No. 4, now respondent No. 1. At the trial defendant No. 4 sought to prove that he had concluded an oral agreement with defendant No. 1 for purchase of the property in suit at the price of Rs. Accordingly, the issue now lies between the plaintiff-appellant and defendant No. 4, now respondent No. 1. At the trial defendant No. 4 sought to prove that he had concluded an oral agreement with defendant No. 1 for purchase of the property in suit at the price of Rs. 15,000 on November 23, 1926, and the appellant sought to establish an even earlier agreement for their purchase at Rs. 13,000. Further, defendant No. 4 sought to prove that the appellants agreement of November 26, 1926, was not genuinely made on that date, but was concoctedat a date subsequent to December 22, 1926, when the sale-deed to defendant No. 4 was executed and registered. But the Subordinate Judge rejected all these contentions, declining to believe the evidence in support of them, and remarking that both parties had adduced a mass of false evidence in support of their respective cases. The learned judge held that defendant No. 1 had contracted on November 26, 1926, to sell the property in suit to the appellant at the price of Rs. 13,000, and that finding is not now disputed. Two Main questions were argued before their Lordships —namely, (a) whether, on a sound construction, the agreement of November 26, 1926, affected the joint familys right in the property in suit or only the individual interest of defendant No. 1, and (b) whether, in respect of the registered sale-deed dated December 22, 1926, defendant No. 4 was a transferee for value who had paid his money in good faith and without notice of the appellants prior contract of November 26, 1926, with the consequent exclusion of the appellants claim for specific relief, in view of s. 27 (6) of the Specific Relief Act, 1877. The first question does not appear to have been argued before the Subordinate Judge. In the High Court Wort J. held that the agreement affected the joint family interest, while Adami J. expressed a contrary view. In their Lordships opinion, the agreement clearly affected the joint family interest. The question turns on the construction of the following passage " I, the executant, have got proprietary interest in 13 dams 6 kauris 13 bauris 6 phauris and 13 reoris pukhta share together with khudasht land in mauza Benipur Bind, pargana Bihar, district Patna, touzi No. 10618, I, the executant, have to sell the said share to meet certain legal necessities. Accordingly with a view to sell it I made negotiation for sale with Bhup Narayan Singh, alias Sham Narayan Singh, resident of mauza Bind, pargana Bihar, district Patna, for Rs. 13,000 (rupees thirteen thousand) (illegible). I heartily agreed to sell and the said vendor (sic) heartily agreed to purchase the same for that much considera tion money." In their Lordships opinion, the subject of sale is clearly the share and not merely the individual interest of the executant therein, and the share was joint family property ; the addition of the words " to meet certain legal necessities " confirms this view. It is moreover clear that the price agreed upon was the fair value of the whole. The second question arises under s. 27 (6) of the Specific Relief Act. Three questions of fact arise in the case of the later transferee—namely, as to payment of his money, as to his good faith, and as to the absence of notice to him of the original contract. The Subordinate Judge did not accept the evidence of the appellants two witnesses, who spoke to the knowledge of defendant No. 4 of the prior contract, and equally clearly he did not accept the latters denial of such knowledge, for he states defendant No. 4 has not produced satisfactory evidence to show that he had no notice of the plaintiffs contract, neither has he established that he was a bona fide purchaser for consideration." Defendant No. 4 had not adduced any other witness than himself on this point. On the question of payment of Rs. 10,500, which was to be paid in cash at the time of registration, defendant No. 4 was the only witness, and the learned judge states " he (defendant No. 4) states that he paid Rs. 10,500 to Parshadi Singh at the time when he executed the kabala. Had that been so, defendant No. 4 would have taken the sale-deed from Parshadi at that time and would have himself presented the same before the registrar for registration. The endorsement on exhibit B shows that this deed was presented for registration by Parshadi himself. That fact clearly goes to show that Rs. Had that been so, defendant No. 4 would have taken the sale-deed from Parshadi at that time and would have himself presented the same before the registrar for registration. The endorsement on exhibit B shows that this deed was presented for registration by Parshadi himself. That fact clearly goes to show that Rs. 10,500, a portion of the consideration which was to be paid in cash to Parshadi Singh, was not paid." The learned judge held that the onus of proof under s. 27 (6) was on defendant No. 4, and, there being no satisfactory evidence that he was without notice, and the Rs. 10,500 not having been paid, the appellant was entitled to specific performance. In the High Court, both the learned judges held in effect that the onus of proof under s. 27 (b) was on the appellant, and not on defendant No. 4, and that there was no sufficient evidence either on the question of notice or the question of payment. On the latter point they disagreed with the inference drawn by the Subordinate Judge from the presentation of the sale-deed for registration by the vendor, and observed "That reasoning is impossible to understand, as the practice in India is for the vendor to take the deed for registration to the registry." Their Lordships are unable to agree with this statement of the practice in India ; in such cases as the present, where a cash payment is to be made at the time of registration, the commoner practice is for the vendee, on payment, to present the deed for registration and get the registration receipt. But while, in their Lordships opinion, the retention of the receipt by the vendor in the present case is suggestive of non-payment of the cash sum, they do not think that it is sufficient proof by itself of nonpayment, and they agree with the learned judges of the High Court that there is no sufficient? evidence either on the question of payment or on the question of notice, and that the applicability of s. 27 will depend on a decision as to where the burden of proof lies primarily, there being no need to consider in the present case the circumstances under which that burden may shift. It will be convenient to state the material portions of the section, which are as follows " 27. It will be convenient to state the material portions of the section, which are as follows " 27. Except as otherwise provided by this 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." In their Lordships opinion, 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, in their Lordships opinion, it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of a transfer which, primie facie, he had no right to get. 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 ss. 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. In a case in 1862 before this Board, Varden Seth Sam v. Luckpathy Royjee Lallah (( 1862) 9 Moo. I. A. 303.), an equitable lien by deposit of title deeds was enforced against a subsequent transferee of the pro perty. In delivering the judgment of this Board, Lord Kingsdown stated " Though both the third and the last defendants pleaded, in effect, that they were bona fide purchasers for value, without notice, yet they did not prove that defence, though the plaintiff charged notice and collusion with the first defendant." And, later " The question to be considered is, whether the third and sixth defendants respectively possessed the land free from that lien, whatever its nature. As one who owns property subject to a charge can, in general, convey no title higher or more free than his own, it lies always on a succeeding owner to make out a case to defeat such prior charge. As one who owns property subject to a charge can, in general, convey no title higher or more free than his own, it lies always on a succeeding owner to make out a case to defeat such prior charge. Let it be conceded that a purchaser for value, bona fide, and without notice of this charge, whether legal or equitable, would have had in these Courts an equity superior to that of the plaintiff, still such innocent purchase must be, not merely asserted, but proved in the cause, and this case furnishes no such proof." Although under s. 54 of the Transfer of Property Act, 1882, the appellants agreement for sale does not of itself create any interest in or charge on the property, their Lordships are of opinion that the rule of procedure stated by Lord Kingsdown is applicable to the present case under s. 27 (6) of the Specific Relief Act. This view under the Specific Relief Act has been taken in a number of cases in India, of which it is sufficient to refer to Himatlal v. Vasudev (( 1912) I. L. R. 36 B. 446.) ; Baburam Rag v. Madhab Chandra Pollay (( 1913) I. L. R. 40 C.565.) ; Tiruvenkatachariar v. Venkatachariar (( 1914) 26 Mad. L. J. 218.) ; Naubat Rai v. Dhaunkal Singh (( 1910) I. L. R. 38 A. 184.) ; and Muhammad Sadik Khan v. Masihan Bibi. (( 1930) 1. L. R. 9 Pat. 417.) Their Lordships attention was drawn to only one decision to a contrary effect—namely, Peerkha Lalkha v. Bapu Kashiba Mali (( 1923) 25 Bom. L. Rptr. 375.), but their Lordships prefer the earlier Bombay decision in Himatlal’s case. Counsel for defendant No. 4 prayed in aid certain decisions on the somewhat analogous provisions of the insolvency .statutes. The first of these was Official Assignee v. Khoo Saw Cheow ([ 1931] A. C. 67.), a case under s. 50, sub-s. 1, of the Bankruptcy Ordinance of the Straits Settlements, which, so far as material, provides " Any settlement of property, not being .... a settlement made in favour of a purchaser .... in good faith and for valuable consideration .... a settlement made in favour of a purchaser .... in good faith and for valuable consideration .... shall, if the settlor becomes bankrupt within two years after the date of the settlement, be absolutely void as against the official assignee." It was held by this Board, upon construction of the section that the onus is upon the official assignee to prove that a conveyance which he is seeking to set aside thereunder was not made in good faith and for valuable consideration. In their Lordships opinion, that section is not in pari casu with the section of the Specific Relief Act in several respects. In the first place, the structure of that section is different, in that it does not provide a general rule with a permitted exception, but defines the area of voidance, and the prior settlements that are outside that area are expressly excluded from invalidation by s. 52 of the Ordinance. In the second place, the operation of the section is the opposite of the operation of s. 27 of the Specific Relief Act, in that it renders void an earlier right in favour of a later one. That decision was followed in Official Receiver v. P. L. K. M. R. M. Chettyar Firm (( 1930) L. R. 58 I. A. 115.), which arose under s. 53 of the Provincial Insolvency Act, 1920, and in Pope v. Official Assignee (( 1933) L. R. 60 I. A. 302.), which arose under s. 55 of the Presidency-towns Insolvency Act, 1909. The provisions of these two Acts are similar to those of the Straits Settlements Ordinance. It may further be observed that, before deciding to file a suit, the official assignee or receiver has available any information to be obtained from the insolvent, and in the case of the Straits Settlements Ordinance (s. 31), of the Presidency-towns Insolvency Act, (s. 36), and of the Provincial Insolvency Act (s. 59a), he has the power, through the Court, of obtaining full information. Their Lordships accordingly agree with the view of the Subordinate Judge that the onus is upon defendant No. 4 to bring himself within the exception in s. 27 of the Specific Relief Act, and, as already indicated, their Lordships agree with the learned judges of the High Court that there is no sufficient evidence either on the question of payment or on the question of notice. The appellant is therefore entitled to the relief sought by him. Their Lordships should refer to another argument that was submitted on behalf of defendant No. 4, to the effect that the Court should consider which of the two contracts was most beneficial to the minors and prefer the one so selected. But in view of the decision of the Subordinate Judge on the minors case, against which no appeal has been taken, their Lordships think that this contention is not open. Their Lordships are accordingly of opinion that the appellant is entitled to the specific relief that he claims, and they will humbly advise His Majesty that the appeal should be allowed, that the decree of the High Court dated June 12, 1930, should be set aside, and that the decree of the Subordinate Judge dated March 31, 1928, should be restored; the appellant to have the costs of this appeal and of the appeal in the High Court paid by respondent No. 1 (defendant No. 4). This will leave open any questions of restitution as between the parties to be dealt with by the Court below.