Patna High Court
Ramjanam Ahir And Ors. vs Beyas Singh And Ors. on 11 December, 1957
Equivalent citations: AIR1958PAT537, 1958(6)BLJR105, AIR 1958 PATNA 537
JUDGMENT Raj Kishore Prasad, J.
1. This appeal involves the interpretation of Section 41 of the Transfer of Property Act, hereinafter referred to as "the Act."
2. Before I give my view of the true meaning and interpretation of Section 41 of the Act, it is necessary to state a few facts and the contentions raised :by the parties before this Court.
3. The plaintiffs brought the suit out of which the present appeal arises, for declaration of their title to and possession over the disputed lands. Budhan and Mahabir, sons of Ajab Lall, were the admitted pwners of the disputed lands. Their descendants, by two registered sale deeds on 21-5-1929 and 12-1-1930. transferred the disputed lands to Most. Rajbahsi, who is defendant No. 6 in the present litigation. Rajbansi defendant No. 6, subsequently transferred her purchased lands to the plaintiffs under three registered sale deeds.
On the basis of these sale deeds, the plaintiffs in their suit sought a declaration that Rajbansi, defendant No. 6, was the real owner of the disputed, lands, and, therefore, she had every right to transfer the same to the plaintiffs, and, accordingly, they had acquired title to the same by virtue of their purchase from her.
4. The suit was contested by defendant No. 1. His main defence was that Most. Rajbansi was only a farzidar of his family, and not the real owner of the disputed property, and, as such, she had no right to execute the sale deeds in favour of the plaintiffs, and, accordingly, they had acquired no title to the disputed lands.
5. The trial Judge found that Most. Rajbansi Kuer, defendant No. 6, was the real owner of the disputed lands before she sold the same to the plaintiffs. He further held that the suit was not barred oy limitation. On these findings, therefore, he decreed the plaintiffs' suit.
6. On appeal by the defendants to the court of appeal below, the learned Second Additional Subordinate Judge, Arrah, reversed the findings of the first court and held that Most. Rajbansi Kuer, defendant No. 6, was really a benamidar of the family of the defendants, of which Khedaru Singh was the Karta, and, therefore, the disputed property was the joint family property of Khedaru Singh, and, as such, Most. Rajbansi Kuer had no right to execute the sale deeds in favour of the plaintiffs.
The learned Subordinate Judge further held that it was not open to the plaintiffs to seek protection of Section 41 of the Act, because there was no evidence to show that the persons interested in the property gave their consent to the transfer to the plaintiffs. On these findings, the learned Judge of the court of appeal below reversed the decision of the first Court, and dismissed the plaintiffs' suit.
7. On second appeal to this Court by the plaintiffs, it was contended on their behalf by Mr. Lal Narain Sinha, Government Advocate, that in this appeal two questions arise :
(1) Is it established that Most. Rajbansi Kuer was a benamidar of defendant No. 1 and his family?; and, (2) On the facts, are the defendants entitled to set up a secret title under Section 41 of the Transfer of Property Act?
He, however, frankly, and very rightly, conceded that the real question was the second question on which hinged the decision of the appeal.
8. The learned Government Advocate was followed by Mr. Murtaza Fazl Ali, and, he, However, laid stress on the fact that the finding that Most. Rajbansi Kuer was a benamidar of defendant No. 1 and his family is not a legal finding, which is binding on this Court. I have react the judgment of the court of appeal below, and; am not inclined to accept the contention of Mr. Murtaza Fazl Ali The question of benami is a question of fact, and, the court of appeal below has not committed any error of law in coming to that finding of fact. I would, therefore, affirm the finding of the court of appeal below that Most. Rajbansi, Kuer was a benamidar of defendant No. 1 and his family.
9. The matter, however, does not end there. The question then arises if Most. Rajbansi Kuer was the benamidar of defendant No. 1 and his family in respect of the disputed property, are the plaintiffs entitled to invoke the aid of the provisions of Section 41 of the Act?
10. It is useful, therefore, to read here section. 41 of the Act. Section 41 is in these terms :
"Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and, transfers the same for, consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
11. The learned Judge of the court of appeal below took the view, as I have stated earlier, that for attracting the provisions of Section 41 of the Act, one of the conditions necessary was that the transfer by the ostensible owner or the property should be with the consent of the person interested in the said property. On this view of the true meaning of Section 41 of the Act, he held that there was no evidence to show that such a consent had been given to the transfer by Most. Rajbansi Kuer to the plaintiffs. He did not therefore, consider the other facts and circumstances in the case on which the plaintiffs relied for their protection under the proviso to Section 41 of the Act.
12. In my judgment, the interpretation put by the court of appeal below on Section 41 of the Act is not correct, and is not borne out by the plain language of Section 41 itself.
13. In support of the construction put on Section 41 of the Act by the court of appeal below, Mr. Gorakh Nath Singh who appealed for the respondents placed strong reliance on a Bench decision of the Allahabad High Court in Md. Shafiqullah Khan v. Md. Samiullah Khan, AIR 1929 All 943: ILR 52 All 139 (A).
14. In the just mentioned Allahabad case, Sulaiman, J., as he then was, observed :
"Now under Section 41, not only should the transferor be the ostensible owner of the property with the consent express or implied of the true owner but he must also transfer the same with such consent express or implied. There can be no doubt that the adverbial clause 'with the consent express or implied' modifies not only the verb 'is' but also the verb 'transfers.' It must, therefore, be held that, the consent express or implied must continue up to the time of the transfer."
Pullan, J., in the above case, in a separate, but concurring judgment, observed as hereunder:.
"Section 41 is a provision which can be invoked by the transferee who has received property by transfer from the ostensible owner. And the section provides that in order to defend the transfer of such a nature the transferee must show that he had taken reasonable care to ascertain that the transferor had power to make the transfer and has acted in good faith. Taking reasonable care involves some enquiry as to the opinion of other persons interested in the property and the section lays down as a preliminary that the transaction must be with the consent, express or implied, of such persons.
It is not enough for the transferee to say that as far as he knows the other persons interested in the property have no objection to the transfer. He must take some definite step to ascertain whether they consent or not. This again does not mean that they consented in the past, but the transferee must ascertain if they consent at the time of transfer,"
The above Allahabad case, therefore, prima facie, undoubtedly supports the view taken by the court of appeal below, and, which is now being supported by Mr. Singh.
15. But I find, however, that subsequently another Bench of the Allahabad High Court in Fazal Husain v. Muhammad Kazim, ILR 56 All 582: AIR 1934 All 193 (B), has taken a contrary view, and, has not followed its earlier decision just mentioned on the ground that the learned Judges who decided the earlier case never intended to take that view, and, if they did, their observations are in the nature of obiter dictum, and, therefore, they were not binding on them. Their Lordships Niamat-ullah and Rachhpal Singh, JJ., who decided the subsequent case, above mentioned, observed :
"We do not think that according to the true interpretation of Section 41, the transfer itself should be with the consent of the true owner."
This case was followed by the Madras High Court as well as the Lahore High Court subsequently in the cases hereinafter mentioned.
16. The question as to what is the true meaning and interpretation of the words "Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same......" occurring in Section 41 of the Act was considered, after the above two decisions of the Allahabad High Court, by a Division Bench of the Madras High Court, which was presided over by Patanjali Sastri and Tyagarajan, JJ., in the Catholic Mission Presentation Convent Coimbatore v. Subbanna Goundan, AIR 1948 Mad 320 (C).
17. I may read below a passage from the judgment of Patanjali Sastri, J., as he then was, in the above-mentioned case. His Lordship, after quoting in extenso Section 41 of the Act, observed:
"It is manifest that, in order to invoke successfully the protection of the section, the transferee must establish that (1) the transferor was the ostensible owner of the properties (2) with the consent express or implied of the real owner and (3) that the transferee paid consideration and (4) acted in good faith (5) after taking reasonable care to ascertain that the transferor had power to transfer. The Courts below have held that the appellants are not entitled to the protection of the section as they failed to satisfy conditions (2) and (5) though they have established the other conditions. The lower appellate Court appears, however, to have proceeded on the assumption that the 'consent express or implied' of the real owner was necessary not only to the transferor holding the property as obstensible owner but also to the transfer sought to be protected under the section. Though, as a matter of grammatical construction, the collocation of the words makes such interpretation possible, it is now generally accepted as the better view that those words have reference only to the transferor holding the property as ostensible owner. This is because, as pointed out in ILR 56 All 532 : AIR 1934 All 193 (B), the consent of the true owner to the transfer would by itself estop him under Section 115, Evidence Act, and the other requirement of Section 41 as to the transferee taking reasonable care to ascertain that the transferor had power to make the transfer will be rendered nugatory. See also Satyanarayanamurthi v. Pydayya, AIR 1943 Mad 459 (D) and Fakruddin Sahib v. Ramayya AIR 1944 Mad 299 (E)."
18. A Single Judge of the Lahore High Court in Jesa Ram v. Ghulaman AIR 1936 Lah 816 (F) has also taken the same view that the words "with the consent express or implied" in Section 41 do not govern the word "transfer" but have reference to the real owner allowing the transferor to hold himself out as an ostensible owner of the property. His Lordship relied on the aforesaid subsequent Bench decision of the Allahabad High Court in ILR 56 All 582 : (AIR 1934 All 193) (B), which has been discussed and mentioned before.
19. The above view is also supported by an observation of the Privy Council in Zarif-Un-Nisa v. Shafiq-Uz-Zaman Khan, 55 Ind App 303 : (AIR 1928 PC 202) (G). In this case, Lord Phillimore, who delivered the unanimous opinion of the Board, observed as below on the construction of Section 41 of the Act:
"It is said that the claimants were women; but both of them had husbands, and one husband was in an official position and understood business. They were not ignorant of the state of the family and of the descent of the property and of such claims as they might have to share in the succession. In fact, one of them had some discussion and negotiation on the subject with Shafiq.
The wives, and after the death of one, her representatives were receiving allowances from the Court of Wards, such as are usually made to junior branches when the estate vests in one heir, It is difficult to suppose that they were entirely ignorant of the way in which Shafiq was encumbering the estate. This seems to their Lordships to satisfy the first condition of the section, Shafiq was allowed to be the ostensible owner of the property with the implied consent of the claimants.
As regards the second condition the bank which took the principal mortgage certainly took reasonable care to ascertain that the 'transferor had power to make the transfer.' Then the other respondents who purchased under arrangements made for realizing parts of the property in order to discharge part of the encumbrance of the bank, must equally be held to have taken reasonable care."
20. In a subsequent case also in Shankar v. Daooji Misir, AIR 1931 PC 118: LR 58 Ind App 206 (H), Sir Lancelot Sanderson, who delivered the unanimous opinion of the Board, while considering the question whether the plaintiffs-appellants before the Board were prevented by the terms of Section 41, Transfer of Property Act, from recovering possession of the house in question in that appeal, observed:
"In their Lordships' opinion, there is no reason why full effect should not be given to the plain language of Section 41, T. P. Act, and if that be so, it is clear that Phalgu was not the ostensible owner of the said ancestral family house with the consent express or implied of the persons interested in the said ancestral house inasmuch as the plaintiffs-appellants who had an interest in the said house, did not and could not by reason of the disability or infancy give their consent.
In, their Lordships' opinion therefore the plaintiffs-appellants are not prevented by the terms of Section 41, from alleging that the deed of 8th May 1915 was merely a sham transaction and that Phalgu had no authority to transfer the said house to the defendants."
21. In none of the above two decisions of the Privy Council their Lordships said that, on the terms of Section 41 of the Act, not only the ostensible owner should be such with the consent, express or implied of the real owner, but the transfer by the ostensible owner should also be with such consent of the real owner. The fact that their Lordships have not said so also shews that the view taken in the other decisions referred to before is correct, and, therefore, the earlier Allahabad case relied upon by the respondents does not make out the true construction and meaning of Section 41 of the Act.
22. The words used in Section 41 of the Act are clear enough to indicate that the section does not require that the transaction to be binding on the real owner must have been entered into by the ostensible owner with the consent of the real owner. For the application of this section, it is essential no doubt that with the consent of the true owner the possession of the ostensible owner must continue up to the date of the transfer; but it is not at all necessary that the transfer itself should be with the consent of the owner.
If it is proved that the transfer was made with the consent of the original owner, the case would obviously fall within the purview of section 115 of the Evidence Act, and, in such a case the proviso to Section 41 of the Act would be rendered nugatory, and, the conditions required by the proviso to Section 41 need not, therefore, be satisfied. Such consent of the real owner to a transfer by the ostensible owner would obviously estop the real owner even though the transferee made no attempt to ascertain that the transferor had power to make the transfer, which is an essential condition for, the application of the Proviso to Section 41 of the Act.
In my judgment, therefore, the true meaning land interpretation of Section 41 is that the person who is the ostensible owner of the property must be such ostensible owner of the property with the consent, express or implied, of the person interested in such property, and, for a transfer by such an ostensible owner the consent of the real owner is not needed; and if the transferee takes the transfer from such an ostensible owner then he is protected under the Proviso to Section 41 of the Act, only if it is proved by him that he, after taking requisite care to ascertain that the transferor had power to make transfer, had acted in good faith.
Therefore, for the application of Section 41 and bringing it into operation in the case of a transfer from an ostensible owner, what is necessary to be proved is that with the consent, express or implied, of the person interested in the immovable property, the transferor was the ostensible owner of the property transferred. In my judgment, therefore, the view taken by the court of appeal below is entirely wrong and, is not supported by the decisions referred to above or even by the plain language of Section 41 of the Act.
23. The question then arises what should be done in such a case, if the court of appeal below has not considered the facts and circumstances, if any, which are on the record and which may attract the application of Section 41 of the Act on an erroneous view of the meaning of Section 41 of the Act? In such a case, the obvious answer would be that the matter should go back to the Court of appeal below to consider now the facts and circumstances, which would be placed before it, on the materials on the record, in order to show that Section 41 of the Act was attracted in the present case, and, that the plaintiffs would be protected thereunder.
24. In this connection, Mr. Murtaza Fazl Ali pointed out to me that some of the important circumstances on the question of application of Section 41 of the Act are (1) custody of the document, (2) admissions in Exts. 3, 3(a) and 3(b), which are the depositipns of the contesting defendant in previous judicial proceedings, (3) rent receipts granted to defendant no. 6 (Exts. 2 series), and others. In reply to this, Mr. Singh contended that it is true that these factors have not been taken into consideration while considering the question of application of Section 41 of the Act, but it is a fact that the court of appeal below has considered them while considering the question of benami, and, therefore, that was enough.
I cannot agree with this contention of Mr. Singh. The question of benami was a separate question, and, the question of the application of Section 41 of the Act was another independent question, and, therefore, these two questions could not be mixed up together and considered in one lump. It was the bounden duty of the court of appeal below even when it found that defendant No. 6 was a benamidar of the defendant's family to consider the facts and circumstances bearing on the question of application of Section 41 of the Act.
The mere fact that those facts or some of them had been considered by the court of appeal below, while considering the question of benami, was not sufficient to relieve it of the duly to consider them in connection with the question of application of Section 41 of the Transfer of Property Act. The learned Judge of the Court of appeal below obviously did not consider them, not because they were considered earlier, while considering the question of benami, but because he took the view that Section 41 did not give any protection to the plaintiffs for the reason given by him.
25. In my opinion, therefore, it is a fit case, which should go back to the court of appeal below for considering the question of application of Section 41 of the Act to the present case and to determine if the plaintiffs on the facts and circumstances in the case can seek any protection under Section 41 of the Act.
26. In the result, the appeal is allowed; the judgment and decree of the court of appeal below are set aside, & the appeal is remanded to the Court of appeal below to consider the question of application of Section 41 of the Act to the facts of the pre sent case on the materials already on the record.
In the circumstances of the case, there will be no order for costs.