When burden of proof is on subsequent purchaser?

 As noted earlier, the expression 'bona fide purchaser'

means and implies a purchaser who purchases a property without

notice, actual or constructive of any adverse rights, claims, interest

or equities of other in and to the property sold. Therefore, at the

stage of seeking leave to implead/carry out consequential

amendment, in our opinion, there was no question of adverting to

any evidence or the lack of it in determining whether the

subsequent purchaser was indeed a bona fide purchaser for value

and without notice of the original contract.

35] The provision contained in section 19(b) of the said

Act which affords protection to a subsequent purchaser who

purchases the contracted property in good faith and for value

without notice of the original contract, is in the nature of an

exception to the general rule. Therefore, it is a settled position in
law that the onus of proof of good faith is upon the subsequent
purchaser who takes a plea that he is an innocent or bona fide
purchaser for value and without notice of the original contract. In

the case of Shankarlal Narayandas Mundade v The New Mofussil

Co. Ltd. & ors. AIR (33) 1946 Privy Council 97, in the context of

section 27 of the Specific Relief Act, 1877, which corresponds to

section 19 of the Specific Relief Act 1963, the Privy Council, by

relying upon its earlier authority in the case of Bhup Narain Singh

V. Gokul Chand Mahton AIR

1934 PC 68 has held thus:

“Their Lordships have found it unnecessary to

examine the evidence which was called on behalf of

the plaintiff to show that these defendants in fact had

notice of the earlier contract, since a decision of this

Board is clear authority for the proposition that the

burden of proving good faith and lack of notice lay

upon the defendants”.

36] In the case of R.K.Mohaammed Ubadullah Vs. Hajee C.

Abdul Wahab (D) by L.Rs. AIR

2001 SC 1658 , in the context of

section 19 of the Specific Relief Act, 1963, the Supreme Court has

observed thus :

14. ….........

As can be seen from Section 19(a) and (b)

extracted above specific performance of a contract

can be enforced against (a) either party thereto and

(b) any person claiming under him by a title arising

subsequent to the contract, except a transferee for

value who has paid his money in good faith and

without notice of the original contract. Section 19(b)

protects the bona fide purchaser in good faith for

value without notice of the original contract. This

protection is in the nature of exception to the general

rule. Hence, the onus of proof of good faith is on

the purchaser who takes the plea that he is an

innocent purchaser. Good faith is a question of

fact to be considered and decided on the facts of

each case.

(emphasis supplied)

37] The pleadings in the context of the proposed

amendment have therefore to be construed in the light of legal

position that the protection afforded to the subsequent purchaser

by section 19(b) of the said Act is in the nature of an exception to

the general rule and therefore, the onus of proving good faith is
on the purchaser who takes the plea that he is an innocent
purchaser. Ultimately, good faith is also question of fact to be
considered and decided on the facts of each case. For this purpose,
an opportunity has to be afforded to the parties to lead evidence
in the course of trial. We are, therefore, unable to share the view

taken by the learned Single Judge that in the facts and

circumstances of the present case there were insufficient pleadings

or evidence on the aspect of the subsequent purchaser not being a

bona fide purchaser for value and without notice of the original

contract.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.42 OF 2014
IN
CHAMBER SUMMONS NO.2087 OF 2011
IN
SUIT NO.1241 OF 2007

Nitin Gandhi  vs. Dinyar Pheroz Dubash 

CORAM: MOHIT S. SHAH, C.J. &
M.S.SONAK, J.

JUDGMENT PRONOUNCED ON : 09 Oct. 2014
Citation;2015(2) MHLJ850

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