Patna High Court
Sheogobind Ram Barai And Anr. vs Anwar Ali And Anr. on 7 November, 1928
Equivalent citations: 116IND. CAS.779, AIR 1929 PATNA 305
JUDGMENT Jwala Prasad, J.
1. This is an appeal by the defendants and they are aggrieved by the decree passed by the Courts below in favour of the plaintiffs declaring their title to 2/3rd share of a house and directing possession to be delivered to them. The house in question belonged to one Jinsi, it having been purchased by her in 1885 by a kabala (Ex. D). She died leaving three sons Ahmed Ali, Amjad Ali, and Gohar Ali, as her heirs and the house in question descended to them in equal shares. On the 29th of March, 1909, Ahmed Ali sold the entire house to two ladies Azizan and Zohra, wives of Waris Ali. Anwar Ali, the plaintiff in the present case, then brought a suit against Ahmed Ali, Abdul Wahab son of Amjad Ali, who was then dead, Gohar Ali, and the aforesaid vendees Azizan and Zohra. Anwar Ali, claimed half share in the house in dispute as son of Gulzar Ali, who, he alleged, was the real purchaser of the house along with Amir Ali, the sale-deed of 1885 (Ex. D) standing farzi in the name of Musammat Jinsi. That suit was dismissed. He brought another suit (No. 8 of 1922), setting up an arrangement whereby he alleged that he was allowed by Ahmed Ali, to live exclusively in this house in consideration of his being allowed to live in another house belonging to Anwar Ali, and others. That suit also ended in dismissal. Ahmed Ali in that suit pleaded that his nephew Abdul Wahab, and another Gauhar Ali, were also interested in the house in question. On the 16th of January, 1923, the aforesaid Azizan and Zohra, sold the entire house to the defendants for Rs. 5,00 vide kabala (Ex. C). Two days later the plaintiff Anwar Ali, and his wife Bibi Zinat purchased 2/3rd share in the house from Abdul Wahab and Gauhar Ali. On the strength of this kabala the plaintiff seeks to recover possession of 2/3rd share of the house in question. The defendants dispute the title of the plaintiff and claim the entire house as having passed to them under the aforesaid transactions originating in the sale-deed executed by Ahmed Ali, purporting to sell the entire 16 annas in favour of Azizan and Zohra. The parties went to trial in the Courts below on the question of title, and both the Courts have concurrently held that the vendors of the plaintiff, Abdul Wahab and Gauhar Ali, had 2/3rd share in the house and consequently the plaintiff acquired valid title in respect thereto. They have also held that the defendants acquired no more than 2/3rd interest in the property in spite of their kabala as well as the kabala of their predecessors-in-title Azizan and Zohra purporting to convey the entire 16 annas of the house in question. This finding is based upon another finding of fact that Musammat Jinsi in whose name the original kabala of 1885 stood was the real owner of the property in dispute and that she was not at all benamidar for and on behalf of Ahmed Ali, a plea that was put forward by the defendants in this case. This is a finding of fact and is not open to challenge in second appeal. The defendants, however, urge that Ahmed Ali was the ostensible owner of the house in question. He was exclusively in possession of the property in dispute with consent, express or implied, of Abdul Wahab and Gauhar Ali, and that the survey khatian stood in his name as well as the receipts granted by the khas mahal, the proprietor of the land on which the house in question stands. They urge before us that they purchased for good consideration the property in dispute from Ahmed Ali, in good faith, and after having ascertained by enquiry that he had power to make the transfer in their favour. Upon these contentions they urge that the defendants have acquired a valid title to the entire 16 annas of the house in question in spite of the fact that Ahmed Ali, the vendor, had only 2/3rd interest therein. Thus, they base their claim to the 16 annas of the house in question under Section 41 of the Transfer of Property Act. True, if the aforesaid elements, which I have taken practically verbatim from Section 41 of the Transfer of Property Act, were fully established in this case by the appellants before us they will be entitled to the relief afforded by that section, and the plaintiffs' suit will be liable to dismissal. Such a definite and clear plea satisfying all the terms of the section has not been taken in the written statement. The plea of good faith and fair consideration has no doubt been taken in para. 5 of the written statement. There is, however, no allegation nor is there any proof that the defendants made any enquiry which was due from them in order to ascertain whether Ahmed Ali, or their immediate vendors Azizan and Zahra, had title over 16 annas of the property in dispute. This is to my mind an essential element and a preliminary condition enjoined by s.'41 in order to protect a bona fide purchaser for value from an ostensible owner. The principle of that section has been taken from the earliest decision of their Lordships of the Judicial Committee in Ramkoomar Koondoo v. McQueen 18 W.R. 166 : 11 B, L.R. 46 : 3 Sar. P.C.J. 160 (P.C.) and is taken from the equitable doctrine of estoppel. The principle has been re-affirmed in the later Privy Council decision in the case of Nageshar Prasad Pande v. Pateshri Partab Narain Singh 34 Ind. Cas. 673 : 3 L.W. 454 : 20 C.W.N. 265 : (1916) 1 M.W.N. 142 (P.C.). I dealt with this point in the case of Kanhu Lal Marwari v. Palu Sahu 57 Ind. Cas. 353 : 1 P.L.T. 546 : 5 P.L.J. 521 : 2 U.P.L.R. (Pat.) 171 : (1920) Pat, 305. The mere keeping of one's name over a property either in Government records or in private papers does not relieve the purchaser from such an owner from the duty and responsibility of making an enquiry into the title of that owner. Far from taking a definite plea of that nature, in para. 16 of the written statement the defendants altogether ignored the title of Abdul Wahab and Gauhar Ali, and say that Musammat Jinsi had made a verbal gift of the entire house to Ahmed Ali, and that since then be had been in possession of the entire house, without the co-partnership of any other person. Their deposition in Court, our attention to which has been drawn by the learned Vakil on behalf of the appellants, sets up a title in Ahmed Ali on the basis of the kabala of 1885 in the name of Jinsi being only a farzi transaction. The aforesaid plea both in the written statement and the evidence in Court to my mind takes the defence out of Section 41 of the Transfer of Property Act. It is then said that the aforesaid public document, the Record of Rights, the khas mahal receipts, etc., are in the name of Ahmed Ali, and that he has been solely dealing with the property. That no doubt is a piece of evidence as to the ostensible owner of the property being held out as the real owner thereof and in certain circumstances it may be taken as sufficient to attract the application of Section 41 of the Transfer of Property Act. But in the present case the knowledge of the kabala being in the name of Musammat Jinsi is not denied. But the title of Ahmed Ali is set up upon two alternative grounds: (1) that the kabala was only farzi in the name of Jinsi and that the real purchaser was Ahmed Ali, and (2) that Musammat Jinsi though real owner of the property made a verbal gift thereof to Ahmed Ali, and Ahmed Ali alone to the exclusion of her other heirs, Amjad Ali and Gauhar Ali. Both these allegations regarding the gift by Jinsi in favour of Ahmed Ali and the farzi purchase in the name of Jinsi have been found to be untrue. This betrays the lack of proper enquiry by the defendants and at the same time it binds them with the knowledge of the real state of affairs, namely, that Jinsi was the true owner of the property and that she died leaving it to descend equally to her three sons. Therefore, the title of Ahmed Ali, and Gauhar Ali was not in any way concealed. Their title was apparent or would have been apparent upon a little enquiry made by the vendees in the present case, both the defendants as well as their immediate predecessors Musammat Azizan and Zohra. Such an enquiry is based upon the principle of caveat emptor. Anybody purchasing a property has to make a reasonable enquiry as to the title of his vendor; much more in a case where he sets up a title of the ostensible owner as against the title of the real owner whose title can only be denied upon the principles of the aforesaid Section 41 by reason of keeping his secret title behind concealed from the view of the public and putting up an ostensible owner as, for all intents and purposes, the real owner of the property. He in the circumstances cannot be permitted to question the dealings of the property by an ostensible owner. That is a penalty imposed upon him for keeping his title secret; but if his title can be discovered upon a simple enquiry by persons dealing with the ostensible owner, that title cannot be denied, and the present is the case of that nature. The plea of estoppel under Section 41 of the Transfer of Property Act was not clearly put forward in the written statement. It was urged apparently before the learned Munsif who disposed of it holding that the principle of that section does not apply to the present case It does not seem to have been carried further in the arguments before the learned District Judge in appeal. There the point strenuously urged was one of complete and indefeasible title acquired by long possession and prescription by Ahmed Ali. Having lost upon the question of title of their vendors the defendants have resorted to the plea under Section 41 of the Transfer of Property Act which was apparently abandoned in the Court below.
In these circumstances I would dismiss the appeal with costs.
Wort, J.
2. I entirely agree with the conclusion to which my learned brother has arrived, and only wish to add one word with regard to Ex. I which apparently was relied upon by the learned District Judge in coming to the conclusion at which he has arrived. It was also urged by the learned Advocate who appeared on behalf of the respondents. It is perhaps unnecessary to labour this point, but in records of these cases it is constantly noticed that matters which are certainly not admissible in evidence are admitted, and as a result the records of the cases are very much enlarged. In this case, as I have stated the learned District Judge fortifies his conclusion as to the pleas put forward by reference to this exhibit. Under no considerations of the law could this be considered admissible. I need only refer to it in that manner and to add that it makes no material difference to the conclusion at which the learned Judge below has arrived. The appellants have thought fit to fight their case before the learned District Judge on a question of absolute title in Ahmed Ali; and if they have failed it seems to me that they cannot complain of the manner in which the case has been heard by the learned District Judge in the Court of Appeal below.
As I have already stated, I agree with my learned brother in dismissing the appeal with costs.