# OF AHMEDABAD v. HAJJ ABDULGAFUR HAJI HUSSENBBAl

- **Citation:** [1971] Supp. 1 S.C.R. 63
- **Court:** Supreme Court of India
- **Decided:** 1971-03-18
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/of-ahmedabad-v-hajj-abdulgafur-haji-hussenbbal-5384
- **Pages:** 13

## Headnote

63
-AHMEDABAD MUNICIPAL CORPORATION OF THE CITY
A
OF AHMEDABAD
v.
HAJJ ABDULGAFUR HAJI HUSSENBBAl
March 18, 1971
II. 0. DUA AND V. BHARGAVA, JJ.]
Transfer of Property Act (4 of 1882), s. 100-App/icabi/ity to auction
sales-Whether s. 141(1) of the Bombay Provincial Municipal Corporatiun
Act, _1949, falls ·within the saving provision of s. 100, T P. Act-Constructive
notice of existence of arrears of municipal taxes-If and when can be im·
B
puled to auction purchaser.
C
Jn 1950, a building vested in the receivers on its owner being adjudicat·
ed an insolvent. Jn 1951, the receivers secured necessary orJers frotn court
for paying off municipal taxes then due, but the receivers did not pay and the
municipal corporation did not also pursue the matter. Jn 1954, the property
was brought to sale in execution of a mortgage decree obtained by a mort-
&agee of the property and the respondent purchased it at the court sale. Before the purchase he made enquiries from the receiver if there were any dues
D
against the property, but he was not informed about the arrears of muni.:ipal taxes. In 1955, the municipal corporation attached the property f01
arrears of municipal taxes due from 1949, and the purchaser filed a suit
for a declaration that the arrears were not recoverable by sale of the property.
On the questions: (!) whether under s. 141(1) of the Bombay ProvinE
cial Municipal Corporation Act,
1949, read with s. 100 of the Transf¢r
of Property Act, 1882, the property could be sold for the arrears in the
hands of the respondent even if he was a transferee for consideration withuut notice, and (2) whether the respondent, who was an auction purchaser
at a court sale, could be held liable to pay the arrears of taxes and the
property could be held subject to the liability on the ground that he had
~onstructive notice of the existence of the arrears.
HELD: (1) Section 100, Transfer of Property Act, lays down that no
charge is enforceable against any property in the hands of a transferee for
consid~ration without notice of the charge except when it is otherwise expressly provided by any law for the time being in force. The real core
of the saving provision of law is not mere enforceability of the charge
against the property but enforceability of the charge, against the property
in tire hands of a transferee for consideraUon without notice of the charge.
S. 141 of the Bombay Municipal Act is not such a provision.
rt merely
creatE's a charge in express language. but apart from creating a statutory
charge, it does not further provide that the charge is enforceable against
the property in the hands of a transferee for consideration without notice
of the charge. (67 A-B ; 68E]
(2) (a) There is no basis for the contentions that s. 100 of the Transfer of Property Act does not apply to auction sales and that therefore the
exeoution purchuers purchase the property subject to all the charges and
encumbrances which would bind the judgment debtor.
This Court in
Lanni Devi v. Mukand Kunwar, (1965] I S.C.R. 726 pointed out that s:
100 applies to proceedings by operation of law also. [69A-B]
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(b) According to s. 3, Transfer of Property Act, a person is said I<>
have notice of a fact when he actuaUy knows the fact or when but for
wilful absention from enquiry or search which he ought to have made, or
gross negligence, he would have known it. In the latter case he is presum·
ed. to have constructive notice. For drawing the presumption in the prest>nt
case, therefore, the question is not whether the purchaser had the means
of obtaining, and might with prudent caution have obtained, knowledge
of the charge but whether in not doing so, he acted with wilful abstentioa
or gross negligence. There is no principle of law imputing, to all intend·
ing purchasers of property in municipal areas where municipal taxes are
a charge on the property, constructive knowledge of the existence of such
municipal taxes and

## Text

63
-AHMEDABAD MUNICIPAL CORPORATION OF THE CITY
A
OF AHMEDABAD
v.
HAJJ ABDULGAFUR HAJI HUSSENBBAl
March 18, 1971
II. 0. DUA AND V. BHARGAVA, JJ.]
Transfer of Property Act (4 of 1882), s. 100-App/icabi/ity to auction
sales-Whether s. 141(1) of the Bombay Provincial Municipal Corporatiun
Act, _1949, falls ·within the saving provision of s. 100, T P. Act-Constructive
notice of existence of arrears of municipal taxes-If and when can be im·
B
puled to auction purchaser.
C
Jn 1950, a building vested in the receivers on its owner being adjudicat·
ed an insolvent. Jn 1951, the receivers secured necessary orJers frotn court
for paying off municipal taxes then due, but the receivers did not pay and the
municipal corporation did not also pursue the matter. Jn 1954, the property
was brought to sale in execution of a mortgage decree obtained by a mort-
&agee of the property and the respondent purchased it at the court sale. Before the purchase he made enquiries from the receiver if there were any dues
D
against the property, but he was not informed about the arrears of muni.:ipal taxes. In 1955, the municipal corporation attached the property f01
arrears of municipal taxes due from 1949, and the purchaser filed a suit
for a declaration that the arrears were not recoverable by sale of the property.
On the questions: (!) whether under s. 141(1) of the Bombay ProvinE
cial Municipal Corporation Act,
1949, read with s. 100 of the Transf¢r
of Property Act, 1882, the property could be sold for the arrears in the
hands of the respondent even if he was a transferee for consideration withuut notice, and (2) whether the respondent, who was an auction purchaser
at a court sale, could be held liable to pay the arrears of taxes and the
property could be held subject to the liability on the ground that he had
~onstructive notice of the existence of the arrears.
HELD: (1) Section 100, Transfer of Property Act, lays down that no
charge is enforceable against any property in the hands of a transferee for
consid~ration without notice of the charge except when it is otherwise expressly provided by any law for the time being in force. The real core
of the saving provision of law is not mere enforceability of the charge
against the property but enforceability of the charge, against the property
in tire hands of a transferee for consideraUon without notice of the charge.
S. 141 of the Bombay Municipal Act is not such a provision.
rt merely
creatE's a charge in express language. but apart from creating a statutory
charge, it does not further provide that the charge is enforceable against
the property in the hands of a transferee for consideration without notice
of the charge. (67 A-B ; 68E]
(2) (a) There is no basis for the contentions that s. 100 of the Transfer of Property Act does not apply to auction sales and that therefore the
exeoution purchuers purchase the property subject to all the charges and
encumbrances which would bind the judgment debtor.
This Court in
Lanni Devi v. Mukand Kunwar, (1965] I S.C.R. 726 pointed out that s:
100 applies to proceedings by operation of law also. [69A-B]
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(b) According to s. 3, Transfer of Property Act, a person is said I<>
have notice of a fact when he actuaUy knows the fact or when but for
wilful absention from enquiry or search which he ought to have made, or
gross negligence, he would have known it. In the latter case he is presum·
ed. to have constructive notice. For drawing the presumption in the prest>nt
case, therefore, the question is not whether the purchaser had the means
of obtaining, and might with prudent caution have obtained, knowledge
of the charge but whether in not doing so, he acted with wilful abstentioa
or gross negligence. There is no principle of law imputing, to all intend·
ing purchasers of property in municipal areas where municipal taxes are
a charge on the property, constructive knowledge of the existence of such
municipal taxes and of the reasonable possibility of those taxes being in
arrears. lt is a question of fact or a mixed question of f~ct and law deprn.
ding on the facts and circumstances of the case.
The material in the
present case does not justify that the respondent purchaser should be fixed
with any constructive notice of the existence of the arrears. because (i) he
could not reasonably have thought the municipal corporation had not cared
to secure payment of the taxes due since 1949: (ii) the 1nunicipal corpooation
was far more negligent and blameworthy than the respondent in allowing
the arrears: to accumulate; (iii) though he 1nade enquiries from the receiver~
they did not give any intimation about the arrears; and (iv) the building
was in the occupation of tenants and the rent was recovered by the receivers
and the reasonable assumption would be that the n1unicipal tax. which '"'i!o.
a charge on the property and given priority under s. 61 of the Provincial
Insolvency Act. 1920, had been paid by the receivers.
[71G-H; 72H;
730-G; 74C-H; 75B-D]
Nawal Kishore v. Municipal Board, Agra. I.LR.
[1943] All.
453,
Municipal Board. Lucknow v. Ramji/al, I.LR. [1916] 16 Luck. 607, Chamiu
Ram v. Municipal Commissioner of Kurseong Municipality, A.l.R. 1951
Ca1. 398 and Municipal Board, Lucknow v. Lala Ran1ji Lal, A.l.R. 1941
Oudh 305, overruled.
Municipal Board, Cawnpore v. Roop Chand Jain, I.LR. [1940] All. 669.
approved.
Akhoy Kumar Banerjee v. Corporation of Calcutta, 1.L.R. 4.:! Cal.
625, referred to.
ClvIL APPELLATE JURISDICTION : Civil Appeal No. 1161 of
F
1967.
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Appeal from the judgment and order dated April 28, 29, 1966
of the Gujarat High Court in Letters Patent Appeal No. 19 of 1961.
S. T. Desai and /. N. Shroff, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Dua, J.-In this appeal on certificate granted by the High
Court of Gujarat under Article 133(1)(c) of the Constitution of
India the question raised relate to the liability of auction purchaser
of property at court sale for the arrears of municipal taxes due
on the date of sale to the municipal corporation of the City of
Ahmedabad which dues are a statutory charge on the property
sold and of which the purchaser had no actual notice.
On the
MUNIC· CORP. v. ABDULGAFUR (Dua, I. )
question of constructive notice there is a sharp conflict of judicial
decisions in the various High Courts and in the Allahabad High
Court itself there have been conflicting expression of opinion.
In this Court there being no representation on behalf of the respondent the appeal was heard ex parte.
The property which is the subject matter of controversy in
this litigation originally belonged to one Haji Nur-Mahammad Haji
Abdulmian.
He apparently ran into financial difficulties iir February, 1949, and insolvency proceedings were started against him
in March, 1949.
By an interim order receivers took charge of
his estate and finally on October 14,
1950 he was adjudicated
insolvent. The property in question accordingly vested in the
receivers.
This property had been mortgaged with a firm cailed Messrs. Hargovind Laxmichand.
In execution of a mortgage
decree obtained by the mortgagee this property was auctioned and
purchased at court sale by the. plaintiff Haji Abdulgafur Haji
Hussenbhai, (respondent in this Court) for Rs. 22,300.
He was
declared purchaser on November 28. 1954.
At the time of this
purchase there were municipal taxes in respect of this property in
arrear for the years 1949-50 to 1953-54, which means that the
receivers had not cared to pay the municipal taxes durir.g all
these years.
The property was attached by the municipal corporation by means of an attachment notice dated July 20, 1955
for the arrears of the municipa.l taxes amounting to Rs. 543.79
ps.
A~ the municipal corporation threatened to sell the property
pursuant to the attachment proceedings the purchaser instituted
the suit (giving rise to this appeal) for a declaration that he was
the owner of the property and that the arrears of municipal taxes
due from Haji Nurmohammad Haji Abdulmian were not recoverable by attachment of the suit property in the plaintiff's hands and
that the warrant of attachment of the property issued by the mun).
cipal corporation was illegal and ultra vires. Permanent injunction restraining the municipal corporation from attaching the property for arrears of municipal taxes was also sought. The trial
court declined the prayer for a declaration that the property was
not liable to be attached for recovery of the arrears of municipal
taxes.
But the warrant of attachment actually issued in this
case was held to be illegal and void with the result that an injunction was issued restraining the municipal corporation from
enforcing the impugned warrant of attachment against the plaintiff in respect of the suit property.
Both parties feeling aggrieved appealed to the District Court.
The Assistant Judge who
heard the appeals dismissed both of them.
The plaintiff thereupon presented a second appeal to the Gujarat High Court which
was summarily dismissed by a learned single Judge.
Leave tn
appeal to a Division Bench under cl. 15 of the Letters Patent
was however granted.
The Divisioir Bench hearing the Letters
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Patent appeal in a fairly lengthy order allowed the plaintilf's appeal
and decreed his suit holding that the plaintiff is the owner of
the suit property and the charge of the municipal corporation for
arrears of municipal tax is not enforceable against his property
and also restraining the municipa1 corporation by a permanent
injunction from proceeding to realise from this property the charge
in respect of the arrears of municipal taxes.
On appeal in this
Court three main questions were raised by Shri S. T. Desai, learned counsel for the appellant.
To begin with it was contended that there is no warranty of
title in an auction sale. This general contention seems to us to
be well-founded because it is axiomatic that the purchaser at auction sale takes the property subject to all the defects of title and
the doctrine caveat emptor Oct the purchaser beware) applies to
such purchaser. The case of the judgment debtor having no saleable interest at all in the property sold such as is contemplated
by O. 21, R. 91, C. P. C. is, however, different and is not covered by this doctrine.
The second point canvassed was that there
is an express provision in Section 141 (!) of the Bombay Provin·
cial Municipal Corporation Act,
1949
(hereinafter called the
Bombay Municipal Act) for holding the present property to be
liable for the recovery of municipal taxes and, therefore, though
the property was subject only to a charge not amounting to mortgage and, therefore, involving no transfer of interest in the pro·
perty, the same could nevertheless be sold for realising the amount
charged, even in the hands of a transferee for consideration
without notice.
Section 141 of the Bombay Municipal Act is an
express saving provision as contemplated by Section 100 of Trans·
fer of Property Act, contended Shri Desai.
This submission has
no merit as would be clear from a plain reading of Section 100
of the Transfer of Property Act, 1882 and Section 141 of the
Bombay Municipal Act, the only relevant statutory provisions.
Section 100 of the Transfer of Property Act dealing with 'charges'
provides :
S. 100 "Where immoveable property of one person
is by act of parties or operation of Jaw made security for
the payment of money to another, and the transaction
does not amount to a mortgage, the later person is said
to have a charge on the property ; and all the provisions
hereinbefore contained which apply to a simple mortgage
shall, so far as may be, apply to such charge.
Nothing in this section applies to the charge of a.
trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise
expressly provided by any law for the time being in force,
.MUN!C CORP. v. ABDULGAPUR (Dua, J.).
no charge shall be cnforctd against any property in the
hands of a person to whom such property ha1 been tranaferred for consideration and without notice of the charge."
This section in unambiguous language Jays down that no charge
is enforceable against any property in the hands of a transferee
for consideration without notice of the charge except where it•
is otherwise expressly provided by any Jaw for the time being in
force.
The saving provision of law must expressly provide for
enforcement of a charge against the property in the hands of a
transferee for value without notice of the charge and not merely
create a charge.
We now turn to Section 141 of. the Bombay
Provincial Municipal Corporation Act, 1949 to sec if it answers
the requirements of Section 100 of Transfer of Property Act. This
section rcada ·: -
Section 14 I. "Property taxes to be a first charge on
premises on which they are assessed :
(!) Property taxes due under this Act in respect of
any building or lllllld shall, subject to the prior payment
of the land revenue, if any, due to the State Government
thereupon, be a first charge, in the case of any building
or land held immediately from the Government, upon the
interest in such building or land of the person liable for
such taxes and upon the moveable property, if any, found
within or upon such building or land and belonging to
such person ; and, in the case of any other building or
land, upon the said building or land and upon the moveable property, if any, found within or upon such building or land avn he.lnnQiTIQ to the person liable for such
taxes.
Explanation.-The term "Property taxes" in this section shall be deemed to include charges payable under section 134 for water supplied to any premises and the costs
of recovery of property-taxes as soecified in the rules.
(2) In any decree passed in a suit for the enforcement
of the charge created by sub-section (!), the Court may
order the paiyment to the Corporation of interest on the
sum found to be due at such rat& as the Court deems reasonable from the date of the institution of the suit until
realisation, and such interest and the cost of enforcing the
said charge, including the costs of the suit and the cost
of bringing the premises or moveable property in question
to sale under the decree, shall, subject as aforesaid, be a
fresh charge on such premises and moveable property
along with the amount found to be due, and the Court
may direct payment thereof to.be made to the Corporation
out of the sale proceeds."
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Sub-section (!), as is obvious, merely creates a charge in express
language.
This charge is subject to prior payment of land revenue due to the State Government on: such building or land. The
section, apart from creating a statutory charge, does not further
provide that this charge is enforceable against_ the property
charged in the hands of a transferee for consideration without
notice of the charge.
It was contended that the saving provision, as contemplated by Section 100 of the Transfer of Property Act, may, without using expr!JSS words, in effect provide
that the property is liable to sale in enforcement of !he charge
and that if this liability is fixed by a provision expressly dealing with the subject, then the charge would be enforceable against
the property even in the hands of a transferee for consideration
without notice of the charge.
According to the submission it is
not necessary for the saving provision to expressly provide for
the enforceability of the charge against the property in the hands
of a transferee for consideration without notice of the charge.
This submission is unacceptable because, as already observed, what
is enacted in the second half of Section 100 of Transfer of
Property Act is the general prohibition that no charge shall be
enforced against any property in the hands of a transferee for
consideration without notice of the charge and the exception to
this general rule must be expressly provided by law.
The real
core of the saving provision of law must be not mere enforceability of the charge against the property charged but enforceability of the charge against th6 said property in the hands of a
transferee for consideration without notice of the charge.
Section
141 of the Bombay Municipal Act is clearly not such a provision.
The second contention accordingly fails and is repelled.
The third argument, and indeed this was the principal argument which was vehemently pressed with considerable force by
Shri Desai, is that the plaintiff must be deemed to have constructive notice of the arrears of municipal taxes and as an auction
purchaser he must be held liable to pay these taxes and the property purchased must also be held subject to this liability in his
bands.
In support of this submission he cited some decisions
of our High Courts.
The first
decision relied upon by Shri
Desai is reported as Arumilli Suravya v. Pinisetti Venkataramanamma(') in which relying on Creet v. Ganga Ram Gool Rai(')
it was observed by Horwill J., that Section 100 of the Transfer
of Property Act does not apply to auction sales because the transfer within the meaning of the Transfer of Property Act does not
include an auction sale. It was added that the position of a
purchaser at an execution sale is the same as that of the judgment-debtor and his position is somewhat different from that of a
(!) A.I.R. 1940 Mad. 701.
(2) I.LR. [1937] l Cal. 203.
MUNIC CORP. v. ABDULGAFUR (Dua, J.)
purchaser at a private sale.
Execution purchasers, according to
this decision, purchase the property subject to all the charges and
encumbrances legal and equitable which would bind the debtors.
We do not agree with the view taken in this decision. We however, do not consider it necessary to go into the matter at length
because we find that this decision was expressly overruled by this
Court in Laxmi Devi v. Mukand Kunwar(1) and the High Court,
relying on this Court's decision, had also repelled a similar contention pressed on behalf of the Municipal Corporation there.
This Court pointed out in Laxmi Devi's case(1) that the provisions of Section 2(d) of the Transfer of Property Act prevail over
Section 5 with the result that the provisions of Section 57 and
those contained in Chapter IV of the Transfer of Property Act
must apply to transfer, by operation of law. Section 100, it may
be pointed out, falls in Chapter IV.
Reliance was next placed
on a Full Bench decision of the Allahabad High Court in Nawal
Klshore v. The Municipal Board, Agra ('). According to this
decision the question of constructive notice is a question of tact
which falls to be determined on the evidence and circumstances
of each case.
But that Court felt that there was a principle on
which question of constructive notice could rest, that principle
being that all intending purchasers of the property in municipal
areas where the property is subject to a municipal tax which has
been made a charge on the property by statute have a constructive knowledge of the tax and of the possibility of some arrears
being due with the result that it becomes their duty before acquiring the property to make enquiries as to the amount of tax which
is due or which may be due and if they fail to make this enquiry
such fa,ilure amounts to a wilful abstention or gross negligence
within the meaning of Section 3 of the Transfer of Property Act
and notice must be imputed to them.
The reference to the Full
Bench in the reported case was necessitated because of conflict of
judicial opinion between that Court and Oudh Chief Court. The
earlier decision of a Division Bench in Municipal Board, Cawmpore v. Roop Chand Jain (') was overruled and the Bench decision of Oudh High Court in Municipal Board, Lucknow v. Ramjilal (') was approved. The next decision to which reference was
made by Shri Desai is reported as Akhoy Kumar Banerjee v.
Corporation of Calcutta (').
In this case, after distinguishing a
mortgage from a charge, it was observed that the statutory charge
in that case could not be enforced against the property in the
hands of bona fide purchaser for value without notice.
While
dealing with the question whether the appellants in that case were
purchasers for value without notice, it was observed that they had
(I) [196S] I S.C.R. 726.
(3) J.L.R. [1940] All. 669.
(S) l.L.R. 42 Cal. 625.
(2) l.L.R. [1943] All. 453.
(4) I.L.R. [1916] 16 Lucknow 607.
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not pleaded in their written statement that they were purchasers
for value without notice.
Having not pleaded this defence they
were held disentitled to avail of it.
Having so observed the
Court dealt with the case on the assumption that the defence
though not expressly taken in the pleadings was available to the
defendants. The Court said :
"But even if we assume that the defence, though not
expressly taken in their written statement, is available to
the defendants, they are in a position of difficulty from
which there is no escape. The appellants are private purchasers of the property and if they had enquired at the
time of their purchase, they would have discovered that
the rates were in arrears; as ai matter of fact. they would
be personally liable under Section 223 for the arrears of
the year immediately prior to the date of their purchase,
and they admit that they have satisfied such arrears,
though they do not disclose whether by enquiry they had
ascertained the existence of the arrears before th.ey made
the purchase."
The Court then proceeded to deal with the position of the vendor
from whom the appellants had purchased the property in order
to see if he could raise the defence of being a purchaser for value
without notice. The appellant's vendor was a . mortgagee who
had acquired title by foreclosure-an involuntary alienation by
his mortgagor-and it was held that to him constructive notice
could not be imputed to the same extent as to a purchaser at a
private sale.
But had he made enquiries from the municipal
authorities he could still have ascertained whether any arrears of
consolidated rates were due.
When he had taken the mortgage
he was aware that if the rates were not paid the arrears would
be first charge on the property with the result that before becoming full owner by foreclosure he should have ascertained the true
state of affairs. On this reasoning he was held to have constructive notice and the purchasers from him could not claim greater
protection.
These circumstahces clearly disclose that the reported
case is not similar to the one before us and is of little assistance.
Cltandu Ram v. Municipal Commissioner of Kurseong Municipality (') was the next decision cffed. The Bench in that case
followed the Full Bench decision of the Allahabad High Court in
Nawal Kishores case (supra).
A Division Bench of the Oudb
Chief Court in Municipal Board, Lucknow v. Lala Ramji Lal (')
disagreeing with the Bench decision of the Allahabad High Court
in Roop Chand Jain's case (supra) observed that it must be presumed that a person who buys house property situate in a municipality is acquainted with the law by which a charge is imposed
(1) A.I.R. 1951 Cal. 398.
(2) A.I.R. 1941Oudh305.
MUNIC CORP. V. ABDULGAFUR (Dua, J.)
on that property for the payment of taxes.
The charge havini:
been expressly imposed by the Municipal Act upon the property
for payment of municipal taxes the municipality was entitled to
follow the property in the hands of a transferee who had not
cared to make any enquiry as to whether the payment of taxes
was in arrears.
The Court approved the Calcutta decision in
Akhoy Kumar's case (supra).
The next decision cited is reported
as Laxman Venkatesh Naik v. The Secretary of State for India(')
but being a case. of takkavi Joans it is of no assistance in the
present case.
We may now tum to the Bench decision of the Allahabad
High Court in Roop Chand Jain's case (supra).
The reasoning
for the view adopted there may be reproduced :
"A bona fide purchaser takes property he buys free
of all charges of which he has no notice actual or constructive.
He is said to have constructive notice when
ordinary prudence and care would have impelled him to
undertake an enquiry which would have disclosed the
charge. If for instance the charge ia created by a registered
document then the purchaser would be held to have cons·
tructive notice of that charge inasmuch as a prudent purchaser would in ordinary course search the registers before
effecting the purchase.
There is no register, as far as we
know, of arrears of taxes or of charges in respect thereof. It has not been shown that the municipality of Cawnpore intimate to the public in the "Press" or by other
publication a list of the properties which are charged in
respect of arrears of taxes. There is nothing upon the
record to justify the conclusion that the defendants could
have demanded any information from the municipality in
regard to charges on immovable property within the
municipal limits."
The Court then noticed the fact that the Kanpur Corporation had
allowed 11 years' arrears of taxes to accumulate and it was observed that no intending purchaser was bound to presume that taxes
upon the property, he contemplates purchasing had not been paid
in the ordinary course, in the absence of special intimation by the
municipality.
On this reasoning the suggestion of constructive
notice was negatived.
According to Section 3 of the Transfer of Property Act which
is described as interpretation clause, a person is said to have
notice of a fact when he actually knows that fact or when but
for wilful abstention from an enquiry or search which he ought
to have made or gross negligence he would have known it. There
(1) XU B. L.R. 2S7.
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[1971) SUPP. s.c.11..,
are three explanations to this definition dealing with three contingencies when a person acquiring immovable property is to be
deemed to have notice of certain facts. Those explanations are:
"Explanation /.-Where any transaction relating to
immoveable property is required by law to be and has
been affected by a registered instrument, any person acquiring such property or any part of, or share of such
instrument as from the date of registration or, where the
property is not all situated in one sub-district, or where
the registered instrument has been registered under subsection (2) of Section 30 of the Indian Registration Act,
1908, from the earliest da.te on which any memorandum
of such registered instrument has been filed by any SubRegistrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated :
Provided that-
(1) the instrument has been registered and its
registration completed in the manner prescribed by
the Indian Registration Act, 1908, and the rules made
thereunder.
(2) the instrument or memorandum has been duly
entered or filec!. as the case may be, in books kept
under section 51 of that Act and
(3) the particulars regarding the transaction to
which the instrument relates have been correctly
entered in the indexes kept under section 55 of that
Act.
Explanation II.-Any person acquiring any immoveable property or any sha.re or interest in any such property
shall be deemed tor have notice of the title, if any, of any
person who is for the time being in actual possession thereof.
Explanation lll.-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."
Now the circumstances which by a deeming fiction impute notice
to a party are based, on his wilful abstention to enquire or search,
which a person ought to make or, on his gross negligence.
Thi~
presumption of notice is commonly known as constructive notice.
MUNIC CORP. V. ABDULOAFUR (Dua, J.)
Though originating in equity, this presumption of notice is now
a part of our statute and we have to interpret it as such. Wilful
abstention suggests conscious or deliberate abstention and gross
negligence is indicative of a higher degree of neglect. Negligence
is ordinarily understood as an omission to take such reasonable
care l\S under tbe circumstances is tbe duty of a person of ordinary
prudence to take.
In otber words it is an omission to do something which a reasonable man guided by consideration which normally regulate the conduct of hum11n affairs would do or doing
•omething which a normally prudent and reasonable man would
not do. TLe question of wilful abstention or gross negligence and,
therefore, of constructive notice considered from this point of
view is generaUy a question of fact or at best mixed question of
fact and law depending primarily on tbe facts and circumstances
of each case and except for cases directly falling within the tbree
explanations, no inflexible rule can be laid down to serve as a
straight-jacket covering aU possible contingencies. The question
one ha.s to answer. in circumstances like the present is not whether
the purchaser had the means of obtaining and might with prudent
cautirn have obtained knowledge of the charge but whether in not
doing so he acted with wilful abstention or gross negligence. Being
a question depending on the behaviour of a reasonably prudent
man, the Courts have to consider it in the background of Indian
conditions. Courts in India should, therefore, be careful and cautious in seeking assistance from English precedents which should
not be blindlv or too readily foUowed.
Adverting now to the case before us, as already noticed,
the property in question had vested in the receivers in insolvency
proceedings since March,
1949 by an interim order, and in
October, 1950 the original owner was adjudicated as an ir.solvent and the property finally vested in the receivers in insolvency.
The plaintiff purchased the property in November, 1954 dnd in
our opinion it could not have reasonably been expected by him
that tbe receivers would not have paid to the municipal corporation since 1949 the taxes and other dues which were charged on this property by statute. According to Section 61 of the
Provincial Insolvency Act, 1920 the debts due to a local authority are given priority, being bracketed along witb the debts due
to the State.
Merely because these taxes are charged on the.
property could not constitute a valid ground for the official receiver
not to discharge tbis liability.
In fact we find from the record
that on January 15, 1951 the receivers had submitted a report
to the insolvency court about their having received bill~ for
Rs. 62&-3-0 in respect of municipal taxes of the insolvent's property and leave of the court was sought for transferring the said
property to the names of the receivers in the municipal and Government records.
The court recorded an order on February 8.
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SUPR!J.I! COURT Rl!PORTs
[1971] SUPP. s.c.lt.
1951 that the municipal taxes had to be paid.
On the receivers
stating that they did not possess sufficient funds the court gave
notice to the counsel for the opposite party and on February 24,
19 51 made the following order :
"Mr. Pandya absent. The taxes have to be paid. The
Receivers state that they can pay only by sale of some
properties of the insolvent from which they want. Sanctioned.
The property in which the insolvent stays should
first be disposed of.
The terms are accordingly so authorised."
It is not known what happened thereafter.
It is, however, difficult to appreciate why after having secured the necessary order
from the court municipal taxes were not paid off by the receivers
;md why the municipal corporation did not pursue the matter and
secure payment of the taxes due.
May be that the municipal
corporation thought that since these dues were a charge oa the
property they need not pursue the matter with the receivers and
also need not approach the insolvency court.
If so, then this,
in our opinion, was not a proper attitude to adopt.
In any event
the plaintiff could not reasonably have thought that the municipal corporation had not cared to secure payment of the taxes due
since 1949.
On the facts and circumstances of this case, therefore, we cannot hold that the plaintiff as a prudent and reasonable
man was bound to enquire from the municipal corporation about
the existence of any arrears of taxes due from the receivers.
It
appears from the record, however, that he did in fact make enquiries from the receivers but they did not give any intimation. The
plaintiff made a statement on oath that when he purchased the
building in question it was occupied by the tenants and the rent
used to be recovered by the receivers.
There is no rebuttal to
this evidence.
Now. if the receivers were receiving rent from the
tenants. the reasonable ,assumption would be that the municipal
taxes which were a charge on the property and which wi!re also
given priority under Section 61 of the Provincial Insolvency Act,
1920, had been duly paid by the receivers out of the rental income.
The plaintiff could have no reasonable ground for assuming that
they were in arrears. From the plaintiff's testimony it is clear that
he did nevertheless make enquiries from the receivers if there were
any dues against the property though the enquiry was not made
specifically about municipal dues.
Apparently he was not informed about the arrears of municipal raxes.
This seems to us explainable on the ground that the receivers bad, after securing appropriate orders, for some reasons not clear on the record, omitted to
pay the arrears of municipal taxes and they were, therefore, reluctant to disclose this lapse on their part.
On these facts and circumstances we do not think that the plaintiff could reasonably be
fixed with any constructive notice of the arrears of municipal taxes
MUNIC COl\P. P. ABDULGAFU!. (Dua, J.)
since 1949.
So far as the legal position is concerned we are
inclined to agree with the reasoning adopted by the Allahabad
High Court in Roop Chand Jain's case (supra) in preference to
the reasoning of the Full Bench of that Court in Nawal Kishore's
case (supra) or of the . Division Bench of Oudh Chief Court in
Ramii Lal's case (supra).
We do not think there is any principle
or firm rule of law as suggested in Nawal Kishore's case (supra)
imputing to all intending purchasers of property in municipal
area where municipal taxes are a charge on the property. constructive knoweldge of the existence of such municipal taxes and
of the reasonable possibility of those taxes being in arreairs. The
question of constructive knowledge or notice has to be determined on the facts and circumstances of each case. According to the
Full Bench decision in Nawal Kishore's case (supra) also the question of constructive notice is a question of fact and we do not
find that the material on the prCient record justifies that the plaintiff should be fixed with any constructive notice of the arrears
of municipal taxes.
We may add before concluding that as the question of
constructive notice has to be approached from equitable considerations we feel that the municipal corporation in the present case
was far more negligent and blameworthy than the plaintiJI. We
have, therefore, no hesitation in holding that the High Court took
the correct view of the legal position with the result that this
appeal must fail and is dismissed.
As there is no representation
on behalf of the respondent there will be no order as to costs.
V.P.S.
Appeal dismissed.
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