Law: Penal Code (XLV of 1860)

Section: 420

Law: Transfer of Property Act (IV of 1882)

Section: 3

  (a) Penal Code (XLV of 1860)----   ----S. 420 and Transfer of Property Act (IV of 1882), S. 3, Explanation I-Definition of constructive notice in S. 3 of Transfer of Property Act, 1882--. Applicable only to cases falling within purview of provisions of that Act and not to matters foreign to scope of Act-Person having already executed mortgage deed in favour of A creating subsequently another mortgage on self same property in favour of B assuring B in writing that property mortgaged was free from' all encumbrances-Definition of constructive notice set out in Explanation 1 to S. 3 of Transfer of Property Act, 1882 cannot be invoked in defence to criminal charge of deception and cheating.   The definition of "a person is said to have notice" in section 3 of the Transfer of Property Act, 1882 along with the various Explanations appended thereto is applicable to cases falling within the purview of the Transfer of Property Act, 1882 only and would be inapplicable to matters foreign to the scope of that Act. Where, therefore, a person having created a mortgage over his property by a registered deed in favour of one, mortgages the selfsame property to another by holding out to him written assurance that the property was free from all encumbrances, he cannot be allowed to invoke in aid Explanation I to section 3 of the Transfer of Property Act, 1882 and set-up the previous mortgage deed as constructive notice to complainant in answer to a charge of deception under section 420, Penal Code, 1860. If it were to be held that Explanation I is a substantive provision applicable to all manner of cases whether falling within or outside the ambit of the Transfer of Property Act, then it will Throw the door for deception wide open, for any surruptitious document, if registered, would be a sure defence to any subsequent fraudulent transaction relating to property covered by the document on the basis of constructive notice. It is not possible to attribute such intention to the Legislature.   Maxwell on Interpretation of Statutes, 1953 Ed., Chapter 3 and Ramchandra v. Jainarain I L R 1898 Born. 698 ref.   (b) Interpretation of statutes------…