Patna High Court
Ramsaran Mahton And Ors. vs Harihar Prasad And Ors. on 2 February, 1960
Equivalent citations: AIR1961PAT314, AIR 1961 PATNA 314
JUDGMENT U.N. Sinha, J.
1. This is an appeal by the plaintiffs. It arises out of a suit instituted by the plaintiffs for declaration of their title to and for recovery of possession of 1.29 acres of land appertaining to plots Nos. 1693 and 1418 in village Muamma. The plaintiffs' case was that the land in dispute originally belonged to two brothers, named Azrul Haq and Mohammad Mustafa and their sister Rashidunnissa. The land was sold by these three persons on the 28th of January, 1948, for a consideration of Rs. 4800/- to two persons, namely, Sheonandan Singh and Awadhesh Nandan Prasad. The sale deed contained two schedules of property. Schedule 1 indicated that the property included therein had been sold to Sheonandan Singh for Rs. 3800 and Schedule 2 indicated that the property included in that schedule had been sold to Awadhesh Nandan Prasad for Rs. 1000/-. The plaintiffs claimed that they had purchased the property mentioned in Schedule 1 of the sale deed, dated the 28th of January, 1948, from Sheonandan Singh by a sale deed dated the 30th June, 1948.
According to the plaintiffs' case Sheonandan Singh had come in possession of Schedule 1 property mentioned above after his purchase and he put the plaintiffs in possession after the sale in question n favour of the plaintiffs. The plaintiffs then alleged that Awadhesh Nandan Prasad, on a misrepresentation that he required the sale deed dated the 28th of January, 1948, for mutation of his name with respect of Schedule 2 property had requested them to make over the sale deed which had been given to the plaintiffs by Sheonandan Singh.
Ultimately, the sale deed dated the 28th of January, 1948, was directed to be handed over to Awadhesh Nandan Prasad who, however, took away a basta containing several deeds and thereafter started claiming that Sheonandan Singh was a mere farzidar for Awadhesh Nandan Prasad. The plaintiffs further alleged that the defendants had cut away the paddy crop grown by the plaintiffs on the land in dispute but in criminal case instituted against the defendants they were acquitted. Being emboldened by the acquittal, the defendants threatened to take possession of the disputed land. As a cloud had been cast over the title of the plaintiffs they were obliged to institute the present suit for the reliefs mentioned above.
2. The suit was contested by defendants Nos. 1 to 8. According to these defendants all the properties mentioned in the sale deed dated the 28th of January, 1948, had been purchased by defendant No. 1 as the Karta of the joint family of these defendants and the property in Schedule 1 of that sale deed had been purchased in the farzi name of Sheonandan Singh. According to these defendants, Sheonandan Singh had no concern with the land in dispute and had never come in possession of the same. The entire consideration for the sale deed, dated the 28th of January, 1948, had been paid by the defendant No. 1.
These defendants alleged that the sale deed dated the 30th of June, 1948, was really a collusive document without consideration and the plaintiffs were not entitled to any relief at all. With respect to possession of documents of title, the case of these defendants was that the original bai beyana which had preceded the sale deed, dated the 28th of January, 1948, and the said sale deed had all along been in possession of defendant No. 1. The plaintiff's case that Awadhesh Nandan Prasad had been able to obtain the sale deed, dated the 28th of January, 1948, on a misrepresentation was denied.
According to these defendants the crop over which the criminal case had been instituted had been grown by these defendants and the criminal case was a false one. With respect to the motive for the alleged benami transaction the case of these defendants was that because the, landlords were inimically disposed towards these defendants a purchase in the benami name of Sheonandan Singh had been made by these defendants. Sheonandan Singh was considered by these defendants to be a friend of defendant No. 2. Sheonandan Singh who was defendant No. 9 had supported the plaintiffs' case.
3. The learned Munsif who tried the suit held that Sheonandan Singh was not a farzidar of the contesting defendants with respect to the disputed land and the plaintiffs were entitled to a declaration of their title and to a decree for confirmation of their possession.
4. The contesting defendants carried an appeal in the court of appeal below and the learned Subordinate Judge, who decided the appeal allowed it as against defendants Nos. 1 to 8. He held that the plaintiffs were not entitled to any relief against defendants Nos. 1 to 8 but that the plaintiffs were entitled to a decree for Rs. 4000/- against Sheonandan Singh (Defendant No. 9) only. The plaintiffs have thus come up to this court in appeal.
5. The learned Subordinate Judge formulated three points which were agitated before him thus:
1. Whether Sheonandan Singh a co-purchaser under sale deed dated 28-1-1948 was a Farzidar (name lender) for the defendants 1 to 8 and whether he would convey any good and valid title over the suit land to the plaintiffs under the sale deed dated 30-6-1948?
2. Whether the plaintiffs are entitled to a decree for declaration of title and for confirmation of possession or in the alternative for recovery of possession over the suit land?
3. Are the plaintiffs bona fide purchasers for value and are they, in the alternative entitled to a decree for Rs. 4,000/- said to have been paid by them as consideration of the sale deed to Sheonandan Singh?
6. Points Nos. 1 and 2 were considered by the learned Judge together and the conclusions of the learned Judge are as follows. He accepted the case of the contesting defendants that as they had long standing enmity and dispute with the landlords, they purchased the major part of the property covered by the sale deed dated the 28th of January, 1948 in the benami name of Sheonandan Singh. The learned Judge accepted the defendants' case that Sheonandan Singh was a close friend of the defendants' family and it was therefore, that the defendant Nos. 1 to 8 chose him as a farzidar.
With respect to the custody of the sale deed dated the 28th of January, 1948, the learned Judge accepted the defendants' case. The learned Judge disbelieved the plaintiffs' case that the title deeds exhibits E and F) had ever been with Sheonandan Singh or with the plaintiffs arid that the defendants had managed to take possession of these documents upon a misrepresentation. Upon the question of the payment of consideration, the learned Judge accepted the case of the contesting defendants.
With respect to the possession of the disputed property the learned Judge came to the conclusion that neither Sheonandan Singh nor the plaintiffs had ever come in possession of the same. He held that the defendants were in possession all along since the purchase on the 28th of January, 1948. Upon point No. 3, the learned Subordinate Judge mentioned that Sheonandan Singh had not denied the receipt of Rs. 4000/- from the plaintiffs, he was bound to return the money to the plaintiffs. Upon this reasoning the learned Judge passed a decree for Rs. 4000/- in favour of the plaintiffs against Sheonandan Singh.
7. The substantial point that has been urged by the learned counsel for the appellants is based on ground No. 18 of the memorandum of appeal filed in this Court. Upon that ground it has been urged that the provisions of Section 41 of the Transfer of Property Act were attracted and that, as the plaintiffs had acted in good faith by paying Rs. 4000/-to Sheonandan Singh, the suit should have been decreed against defendants Nos. 1 to 8. It was urged that point No. 3 formulated by the learned Subordinate Judge was really a point which dealt with Section 41 of the Transfer of Property Act. It was urged that the conclusion of the learned Subordinate Judge being that the plaintiffs had in fact paid Rs. 4000/- to Sheonandan Singh, the learned Judge should have held that the plaintiffs were protected by the provisions of Section 41 of the Transfer of Property Act.
In reply to this contention of the learned counsel for the appellants it has been urged by the learned counsel for the contesting respondents that point No. 3 formulated by the learned Subordinate Judge did not cover Section 41 of the Transfer of Property Act. It was also urged by the learned counsel for the respondents that a case under Section 41 of the Transfer of Property Act should have been specifically pleaded and strictly proved in the suit when it was pending in the Court of first instance. It is contended that this point was not taken in the Court of the learned Munsif nor was it taken in the Court of appeal below, and, therefore, the appellants are not entitled to take this point in this appeal. Learned counsel for both the parties have relied upon certain decisions to substantiate their argument. Before I consider the decisions cited by the learned counsel for the parties, I would deal with the argument that point No. 3 formulated and dealt with by the learned Subordinate Judge was really a point dealing with Section 41 of the Transfer of Property Act.
In my opinion, the contention raised" in this connection by the learned counsel for the appellants cannot be accepted. It appears that in the Court of appeal below an alternative argument had been advanced by the plaintiffs that either they were entitled to the property in dispute and a decree for confirmation of their possession or they were entitled to recover Rs. 4000/- from Sheonandan Singh to whom they paid the money and who had then purported to sell the land in dispute on the 30th of June, 1948. In my opinion, it was in those circumstances that the learned Subordinate Judge had formulated point No. 3 and had passed a decree for Rs. 4000/- against Sheonandan Singh. In my opinion, the learned Judge was not considering under point No. 3 the question as to whether the plaintiffs had acted in good faith and had taken reasonable care to ascertain that Sheonaadan Singh had power to make the transfer.
8. Now, I will consider the decisions relied upon by the learned counsel for the appellants upon Section 41 of the Transfer of Property Act. Reliance has been placed by the learned counsel for the appellants, on the case of Ramcoomar Koondoo v. Mc Queen, a decision of the Privy Council reported in 18 Suth WR 166. My attention has been drawn to the following passage occurring in that decision :
"It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it, for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not been permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing, either that he had direct notice; or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an enquiry, that, if prosecuted, would have led to a discovery of it."
The above observations of their Lordships of the Privy Council were reiterated in the decision of Baidya Nath Dutt v. Alef Jan Bibi, AIR 1923 Cal 240. In my opinion, the decision of their Lordships of the Privy Council, 18 Suth WR 166 or Baidy Nath Dutt's case, AIR 1923 Cal 240, can be of no avail to the appellant. For a consideration Section 41 of the Transfer of Property Act, the words of that section have to be referred to. There is a proviso to that section in these words :
"Provided that the transferee, after taking reasonable care to ascertain that the transferor has power to make the transfer, has acted in good faith."
Therefore, even if it is open to the appellants to take recourse to Section 41 of the Transfer of Property Act, they will have to prove that the requirements of the proviso were satisfied. Their Lordships of the Privy Council have stated that persons in the position of the present plaintiffs who want to take advantage of a principle of equity (which has now been statutorily recognised by Section 41 of the Transfer of Property Act), can do so if there is nothing amounting to constructive notice of the title of the real owner.
If anything existed which ought to have put any person upon an enquiry to find out who has the real title to the property, that person cannot take recourse to any equitable principle. Upon the finding of the Court of appeal below, Sheonandan Singh had never been in possession of the property in dispute. According to the finding of the court below, the contesting defendants were in possession, of the disputed property after the sale deed dated the 28th of January, 1948. In these circumstances, it is not open to the plaintiffs to contend that they can be considered to have acted in good faith after taking reasonable care to ascertain that Sheonandan Singh had power to make the transfer in their favour.
Learned Counsel for the appellants has further relied upon the decisions in the cases of Ramjanam Ahir v. Beyas Singh, AIR 1958 Pat 537 and Arta Rout v. Bhagbat Baral, AIR 1957 Orissa 157. It appears that in Ramjanam Ahir's case, AIR 1958 Pat 537 the question of Section 41 of the Transfer of Property Act had been agitated in the Court of appeal below. The learned Subordinate Judge who had decided the appeal had put a certain interpretation upon Section 41. Raj Kishore Prasad, J. held upon a review of the authorities upon Section 41 of the Transfer of Property Act that the interpretation put upon that section by the learned Subordinate Judge was an erroneous one.
In view of that decision, the case was remanded to the Court of appeal below for a finding whether the plaintiffs of that suit could, on the facts and in the circumstances of that case, seek protection under Section 41 of the Transfer of Property Act. The decision in Arta Rout's case, AIR 1957 Orissa 157 is also distinguishable on its facts. In that decision the Court of appeal below had held that the sale deed in question in that casa was for consideration. On the ground that the sale deed executed by the plaintiff was for consideration and that from the consideration paid to the plaintiff a mortgage had actually been discharged, it was held that the plaintiff could not successfully avoid the sale deed in question.
In my opinion, Arta Rout's case, AIR 1957 Orissa 157 does not assist the learned counsel for the appellants in this case. The finding about passing of consideration in the instant case was to the effect that the plaintiffs had failed to prove that Sheonandan Singh had paid Rs. 3800/- for purchasing the properties mentioned in Schedule 1 of the sale deed, dated the 28th January 1948. In my opinion, the submission of the learned counsel for the contesting respondents that the question of applicability of Section 41 of the Transfer of Property Act should have been specifically pleaded and strictly proved, is supported by the decisions of this Court.
It was held in the case of Sonur Kapri v. Saligram, ILR 28 Pat 542 that Section 41 of the Transfer of Property Act is an exception to the general rule that no person can transfer to another any right or title greater than the transferor had. It was stated that this exception must be specifically pleaded and strictly proved. Their Lordships stated thus :
"But I do not find that any such plea was raised in the Courts below, or any issue joined on that question, between the plaintiffs and the defendants-second party. This contention, therefore, must fail on this preliminary ground alone."
9. Upon this point, in Sheogobind Ram v. Anwar Ali, AIR 1929 Pat 305 their Lordships held thus:
"The plea of estoppel under Section 41, T.P. 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, T.P. Act, which was apparently abandoned in the Court below. In these circumstances I would dismiss the appeal with costs."
In my opinion, the first point raised by the learned counsel for the appellants to the effect that the appellants were protected under Section 41 of the Transfer of Property Act, must fail.
10. Learned counsel for the appellants thereafter submitted that the findings of the Court of appeal below with respect to possession of the land in dispute and the passing of consideration for the sale of the property in Schedule 1 of the sale deed, dated the 28th of January, 1948, was erroneous. Learned counsel hag drawn my attention to ground No. 8 taken in the memorandum of appeal filed in this Court.
In my opinion, however, such a ground viz., that the findings of the final Court of fact are vitiated by errors of record and misreading of evidence, is too vague a ground to be taken into consideration at this stage. Learned counsel for the appellants has submitted that the following observation of the learned Subordinate Judge, viz., "But the evidence of Sheonandan is that the consideration was paid to the three executants simultaneously" is not based on a proper consideration of the evidence of Sheonandan. In my opinion, it is not possible to reconsider the evidence on record at this stage. No specific error of record was mentioned in the grounds of appeal.
The submission of the learned counsel to the effect that the findings of the Court below with respect to possession and with respect to the passing of consideration are erroneous, cannot succeed. Learned counsel for the appellants has further submitted that the reasonings given by the learned Munsif for not accepting the evidence of the defendants' witnesses were not displaced by the learned Suborodinate Judge and hence the learned Subordinate Judge's judgment accepting the evidence of the defendants' witnesses was erroneous. In view of the fact that all the evidence of the defendants' witnesses was considered by the learned Subordinate Judge in detail, this contention raised by the learned counsel must also fail.
11. All the contentions raised by the learned counsel for the appellants having failed, the appeal is dismissed with costs payable to respondents Nos. 1 to 8, who were defendants Nos. 1 to 8.