Saturday, 17 June 2017

When subsequent deed of conveyance will prevail over earlier deed of conveyance?

In view of the discussions made above, on the one hand
possession of appellants/ defendants over the suit property stood
confirmed whereas Gajanand Agarwalla and subsequent
purchasers i.e. Gurmukh Singh and plaintiffs have never come in
possession over the suit property and that is also apparent from
the evidence of P.W.-4. Under such circumstances, the appellants
are entitled for the protection contained under Section 53A of the
Transfer of Property Act and they cannot be evicted therefrom. 
The appellants have also taken a plea of constructive notice
as given under Explanation – II of Section 3 of the Transfer of
Property Act. There should not be straight jacket formula that the
Deed of Conveyance which were earlier in time, shall prevail over
the Deed of Conveyance executed later. The Court has to look into
the facts and evidence available on record to decide as to who had
acquired a better title if two Title Deeds are available. The Courts
below have decided that the Sale Deed dated 11.10.1984 is later
in time and hence that will not prevail against the Sale Deed
executed in favour of the predecessor-in-interest of the plaintiffs
i.e. 12.07.1984. The documents and evidence available on record
indicates that Sitaram Agarwalla and his brothers, Gajanand
Agarwalla Gurmukh Singh and even the plaintiffs are resident of
same vicinity and they all are having their residence nearby to the
disputed property. They have not inquired from the defendants at
any point of time before the transaction made in their favour from
the defendants as to under what capacity or authority they are
occupying the suit premises.
17. Learned counsel for the plaintiffs in this regard has relied
upon the Judgment reported in AIR 1987 Patna, Page-5 but the
facts in the case at hand are different. The appellants were not
occupying smaller portion of the property rather they were in
occupation and possession of Plot No. 151. Sitaram Agarwalla and
his three brothers had executed single Sale Deed pertaining to
Plot Nos. 151, 152 and 153 in favour of Gajanand Agarwalla. All
the three plots were having their different identity which also
reveal from the fact that Plot No. 153 was recorded in the name of
Purni Devi and, therefore, Gajanand Agarwalla got the Sale Deed
executed by Purni Devi in his favour pertaining to Plot No. 153.
Since the plaintiffs did not make enquiry about the authority
under which the appellants were occupying their possession over
the suit property, they cannot be considered bonafide purchaser.
For reference, Explanation-II of Section 3 of the Transfer of
Property Act is being given hereunder:-30 S.A. No. 61 of 2004
“Explanation – III. – A person shall be deemed to have
had notice of any fact if his agent acquires notice
thereof whilst acting on his behalf in the course of
business to which that fact is material:
Provided that, if the agent fraudulently conceals the
fact, the principal shall not be charged with notice
thereof as against any person who was a party to or
otherwise cognizant of the fraud.”
SECOND APPEAL NO. 61 of 2004

Smt. Gita Devi

Mrs. Sobha Agarwalla,

 PRONOUNCED ON 05/08/2016.
Citation: AIR 2017 Jharkhand 24.
Read full Judgment here: Click here
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