Section 3 of the act provides the concept called as notice. In its simple sense it means knowledge. So where a person having a knowledge or if it is found that the person could have acquired knowledge with reasonable prudence then he cannot denied and there would be estoppel against this person.
“A person is said to have notice” of a fact when he actually knows that fact, or when he would have known it. If an enquiry or search which he ought to have made.
Explanation 1: All the facts stated in that document.
Where a document has been registered, it is presumed that all the persons concerned have constructive notice of the material facts affecting the property which are apparent in the deed or which can be reasonably inferred from its contents.’ Any person interested in the transaction which is registered under the provisions of the Indian Registration Act, 1908, cannot plead that he has no notice of the transfer made under that deed. It may be noted that Explanation-I was added to Section 3 by the Amending Act of 1929. Before, 1929 the law whether registration amounted to constructive notice or not was not settled. Provided that
- The instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (XVI of 1908), and the rules made thereunder,
- The instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and
- 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 2. Notice of Title : Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation 3:—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.
Types of Notice :
Notice can be of two types,
- The actual notice and
- constructive notice.
1. The actual notice: Actual means direct or express knowledge, so where a person has been given information in either written or oral form he is bound by the same, and he cannot deny thereafter. But yes the information must be definite, it must not be here say or rumor and it must be direct.
2. Constructive Notice : The person might not be having a direct information but he must with due diligence find the facts, otherwise it would be deemed that the person has the knowledge if it is found that he had the means to discover it is called Constructive Notice. So if a person is not having a direct knowledge he must try to find out otherwise. If he is rash or if he is wilfully absent himself from the enquiry there would be no defence for him.
Illustrations :
1. A registered letter was sent by landlord A to his tenant B. B refuses to take delivery of the letter. B has constructive notice of the contents of the letter because he has wilfully abstained from knowing its contents.
2. A contracts to sell his house to B. The house in on rent and B knows that the tenants have been paying the rents to C. B has constructive notice of the right of C to take rents from the tenants.
Held in the case of Hunt vs Luck 1902.
Principle of notice has been incorporated under Sections 39, 40, 41, 43, 53 and 53-A of the Transfer of Froperty Act. Apart from this, Section 27 of Specific Relief Act, 1872 and Section 91 of Trust Act, 1882 also provide this principle.
The registration of the documents act as a notice to the public at large.
The registration is basically a public record which is open to the general public so that they can enquire about the details of any property and the ownership thereof. No doubt, registration should be complete in all aspects meaning thereby the details have been entered into the books of the registrar, the details have been entered in the index.
And if the property lies within two district then even if the registrar register in one District still it would be a notice because as per the registration act the copy would also be sent to the other district.
Registration, is a notice or not, is a question of fact and not a question of law which depends in the circumstances of each case. Tilakdhari v. Khedanlal, AIR 1921 .
Document and instrument.
Document would be find in evidence act or in general clauses act also. Instrument also is the part of document. Document can be, any substance, a paper, metal plate, clothes, plastic etcetera. When all used for the purpose of recording of evidence then it would become a document.
Document and Instrument
Instrument is also a document but this is basically guiding or creating or giving rights and liabilities of parties. All instruments are documents but all documents or not instruments.
Unilateral and bilateral document.
Unilateral document signed by the one party for example will, gift deed, some lease deeds which only one party sign. These are called rent notes or Kabuliyat.
Bilateral document signed by the two parties. For example sale deed, lease deed.
Testamentary and non testamentary document or instrument.
Will is only the example of testamentary document.
Testamentary document: It does not operate immediately. Generally it may be revokable. for example a person above 18 years can make a will as many times as he wants. One can revoke the will till his last breath. But the last Will will prevail. It is not intervivos.
Instrument generally means non testamentary instruments. But why does it so?
Non testamentary instrument. The TPA only defines the instrument to be a non-testamentary instrument. This is due to the fact that since TPA only governs the transfers “inter vivos” that is between two living persons. Therefore, the instruments between two living persons would only be taken into consideration and hence we have only non-testamentary instrument.
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