Kanji vs Parmanand

This Second Appeal by transferees and contesting Defendants who were unsuccessful in the Courts below was by order dated 24-7-81 admitted for final hearing on the substantial question of law set out below:

(1) Whether in the facts and circumstances of the case the Courts below erred in law in not applying principles of S. 41 of Transfer of property Act in the case ?

(2) Whether in the facts and circumstances of the case the Courts below erred in law is not considering that sale by a Karta of the joint family as valid and good and binding on the members of the family ?

Plaintiff No. 1 Paramanand and Defendant No. 2 Mahadeo are sons of one Shankar Lal, Plaintiffs No. 2. 3 and 4, Dhankuwarbai, Punibai and Chhunibai @, Hirubai are sisters of Paramanand and Mahadeo and Defendant No. 1 Gomtibai (since deceased) is mother of the Plaintiffs and Defendant No. 2 Mahadeo and wd/o Shankar Lal who died sometime in Sam. 2002 corresponding to year 1945 of Gregorian Calendar. Shankar Lal at the time of his death owned and possessed agricultural land in Bhumiswami rights at village Krothali as detailed below:

Survey No.

Area

128/3

10/1

130/2

9

131

11/3

129/1

1

129/3

1

132

1/3

-----

---- Land revenue 41.39 Rs.

6

12

After Shankar Lal''s death the name of the Plaintiff No. 1 Paramanand and Defendant Nos. 1 and 2 w/o Gomtibai and son Mahadeo were mutuated in the revenue papers but the names of Plaintiffs Nos. 2 and 3 were not mutuated along with the names of other hairs of Shankar Lal. Plaintiffs claimed that they had 2/3rd share in agricultural lands left behind by by Shankar Lal after his death. They called upon Defendant Nos. 1 and 2 to effect partition and give Plaintiffs their 2/3rd share in the land but the two Defendants did not comply with this demand. The Plaintiffs further pleaded that Defendant Nos 1 and 2 through fraud and cheating had executed sale deeds of the agricultural land in favour of Defendant Nos. 3 and 4 Kanji and his son Babulal and these two Defendants were illegally and un-authorisedly in possession of the agricultural lands. The Plaintiffs further pleaded that Defendant Nos. 3 and 4 very well knew that Plaintiffs besides Defendant Nos. 1 and 2 are heirs of Shankar Lal but in spite of this, they had got the sale deeds executed in respect of the agricultural lands left behind by Shankar Lal by Defendant Nos. 1 and 2 Mst. Gomtibai and Mahadeo dishonestly and through fraud in thheir favour. The Plaintiffs also claimed mesne profits 3000/- per year in respect of their 2/3rd share in the agricultural lands from the date of institution of the suit. On the above pleadings the Plaintiffs claimed declaration of title, partition and possession of their share in the lands left behind by Shankar Lal under possession of transferees Defendant Nos. 3 and 4.

Defendant Nos. 1 and 2 Mst. Gomtibai and Mahadeo admitted the allegations made by the Plaintiffs in their common written statement filed on 7-11-1975. Defendant Nos. 3 and 4 in common written statement as subsequently amended resisted she claim and took us several pleas. At one stage it was even denied that the Plaintiffs Nos. 2 and 3 Dhankunwarbai and Punibai are sisters of Plaintiff No. 1 and daughter of Shankar Lal though later in his evidence Defendant Kanji denied this statement made in the written statement. It was submitted that another Civil Suit No. 10-A/74 had been presented in the Court of 3rd Addl. District Judge, Dhar in respect of suit lands by Plaintiff No. 1 Paramanand and Defendant Nos. 1 and 2 Mst. Gomtibai and Mahadeo and in that suit the present Plaintiff Nos. 2 and 3 were not impleaded as parties. The present suit, therefore, was barred under Order 2, R. 2 Code of CPC and the Plaintiffs are bound by the principle of estopped. It was also submitted that till Civil Suit No. 10-A/74 praying for cancellation of sale-deeds executed in favour of Defendant Nos. 3 and 4 was decided, the present suit was not maintainable and could not proceed. Valuation of the suit and jurisdiction of the Court were also denied. In special pleadings it was also submitted that Plaintiffs and Defendant Nos. 1 and 2 constituted a joint Hindu Family and widow Mst Gomtibai Defendant No. 2 as Manager of the family had sold all the lands for getting Defendant No. 1 Mahadeo treated and Plaintiff No. 4 Chunnibai married. The sale-deeds of all the lands in favour of Defendant Nos. 3 and 4 were executed by Defendant No 1 and 2 with the consent of the Plaintiff are, therefore, estopped from challenging the title of these Defendants over the suit-lands. It was also pleaded that Defendant Nos. 1 and 2 were ostensible owners of the agricultural lands with the consent of Plaintiffs and had earlier mortgaged the lands and therefore, sale-deeds executed by tham in favour of the Defendant Nos. 3 and 4 were binding on the Plaintiffs. The Plaintiffs have to title over the suit-lands nor to they deserve any share in them. They are also not entitled to any mesne profits.

The trial Court by judgment and decree dated 27-2-78 found that Plaintiffs Nos. 1, 2 and 3 had title each 1/6th share in the agricultural lands left behind by Shankar Lal and the sale-deeds executed by Defendant Nos 1 and 2 in favour of the Defendant Nos. 3 and 4 were not binding on these Plaintiffs and that they were entitled to separate possession after partition through Collector of the district of their shares. The trial Court further found that Plaintiff No. 4 Mst. Chunnibai did not have any right or title over the lands because she had made a gift of her share in favour of her mother Defendant No. 1 Mst. Gomtibai since deceased and sale executed by Mst. Gomtibai in favour of Defendant Nos. 3 and 4 would be binding on Plaintiff No. 4 Mst. Chunnibai. 6. Two appeals one by Plaintiff No. 4 Chunnibai and another by the present Appellants/Defendant Nos. 3 and 4 transferees were filed in the district Court. The 2nd Addl. District Judge, Dhar by judgment and decree 28,-4-81 dismissed both these appeals and upheld the judgment and decree passed by the trial Court. Hence, the present appeal.

At the hearing of the appeal, Shri T. N. Singh learned connsel representing the Appellants traced the history of the case, explained pleadings of the parties and the evidence adduced by the parties and has submitted that the Courts below had completely overlooked the fact that in the revenue record the names of the Plaintiff Nos. 2 and 3 were missing. He also emphasized that according to Karsan (P. W. 2) earlier Defendant Nos. 1 and 2 had mortgaged the lands with the witness for Rs. 1500/- and allowed him to cultivate the same and this fact would show that the Defendants Nos. 1 and 2 were ostensible owners on behalf of the Plaintiff Nos. 1, 2, and 3 of the suit lands in respect of their share. The sale-deeds executed by Defendant Nos. 1 and 2 Mst. Gomtibai and Mahadeo in favour of defendans No. 3 and 4 would, therefore, be binding on the Plaintiffs Nos. 1, 2 and 3 Shri T. N. Singh also submitted that pleadings as to ostensible ownership of Defendant Nos. 1, 2 and transfer made by them to Defendant Nos. 3 and 4 being binding on the Plaintiffs was not at all looked into or examined by the Courts below. Shri Singh also submitted that Plaintiffs Dhankunwarbai, Punibai and Defendants Mst. Gomtibai and Mahadeo did not enter the witness-box and therefore, adverse inference ought to have been drawn against them. Shri Singh also submitted that document Exh. 3-D/2 and 3-D/3 would suggest that Defendant Nos. 3 and 4 had made necessary enquiries and were right in concluding that Defendants Nos. 1 and 2 were ostensible owners of the lands inasmuch as according to Exh. 3-D/2 Plaintiffs Nos. 2 and 3 Dhankunwarbai and Chunnibai did not want any share in the lands and were happy in in-laws place.

Shri Singh in support of his argument placed reliance on the following decisions:

AIR 1931 194 (Nagpur)

Sahu Nand Kishore v. L. Makhan Lal; (AIR All. 192);

Kovvuri Satyanarayanamurthi and Others Vs. Tetali Pydayya and Others,

The Catholic Mission Presentation Convent and Another Vs. Subbanna Goundan and Others,

Sha Karmshi Vershi v. Sha Ratanshi Nenshi and Anr.; (AIR 1952 Kutch 55);

Beyas Singh and Others Vs. Ramjanam Ahir and Others, ...also relied on by Shri Garg.

Hussain Banu Vs. Shivnarayan and Others,

Controverting Shri Singh''s contentions Shri Garg submitted that necessary pleadings as to S. 41 of the Transfer of Property Act was not there and there is no evidence to show that Defendant Nos. 3 and 4 before getting sale-deed executed by Defendant Nos. 1 and 2 made any enquiries as to their ostensible ownership with respect to the share of Plaintiff Nos. 2 and 3 and the plea is an after thought. Shri Garg argued that Defendant Nos. 3 and 4 know that deceased Shankar Lal had left behind him besides others Plaintiffs Nos. 2 and 3. In spite of this they took no reasonable care to ascertain whether Defendant Nos. 1 and 2 had power to make valid transfer of full interest in the land. Merely because the names of Plaintiff Nos. 2 and 3 were not there in the revenue papers would not mean that their title in the suit lands which devolved on them after death of their father Shankar Lal was extinguished or that they had relinquished the same because this could be done only by a valid registered instrument which was lacking in the case. He further submitted that Mst. Gomtibai being a woman and widow could not be a Manager of the family and an alienation made by her would not bind the Plaintiffs Paramanand, Dhankunwarbai and Punibai.

For the purpose Shri Garg placed reliance on Commr. of Income Tax and Anr. v. Seth Govindram Sugar Mills AIR 1956 SC 24. As to ingredients for ostensible ownership and essentials for applicability of S. 41 of the Transfer of property Act, Shri Garg placed reliance on the following decisions: -

(1) Mohd. Sujat v. Mt. Chandbi; (AIR J927 Nag. 41).

(2) AIR 1944 20 (Nagpur)

(3) Sheikh Hussain v. Phoolchand; (AIR 1952 Nag 20).

(4) Beyas Singh and Others Vs. Ramjanam Ahir and Others, ..also relied on by Shri Singh.

(5) The Divisional Engineer, G.I.P. Railway Vs. Mahadeo Raghoo and Another,

Taking up second substantial question of law for consideration first in Commr. of Income Tax M. P. Nagpur and Bhandara v. Seth Govindram Sugar Mills AIR 1955 SC 24., overruling two earlier decisions of this Court, it was held that a widow is not a coparcener. She has no legal qualifications to become the Manager of a Joint Hindu Family. A widow of a coparcener, cannot, therefore, be a Karta of the Joint Hindu Family. Therefore, alienation made by Gomtibai w/o Shankar Lal would not be binding on Plaintiffs Parmanand, Dhankunwarbai and Punibai. The alienation made by mother Mst. Gomtibai would bind herself in respect of her own share and share of Plaintiff No. 4 Chunnilal because this Plaintiff had gifted her share to Mst. Gomtibai. It might be stated that it has not been suggested or argued that Defendant Mahadeo S/o Shankar Lal was Karta of the family. The argument has been confined only to Mst. Gomtibai. It is, therefore, not necessary to consider whether Defendant Mahadeo S/o Shankar Lal could be manager of the Joint Hindu Family and whether alienation made by him would bind the Plaintiffs except Chunnibai @ Hirubai.

Taking up first substantial question of law for consideration, it is not in dispute that death of Shankar Lal, Plaintiffs Parmanand, Dhankunwarbai and Punibai and also Chunnibai and Defendant Gomtibai and Mahadeo are heirs of Shankar Lal and his property i. e. the suit lands devolved on them in equal shares. The omission of the names of daughters Mst. Punibai in mutation proceedings in Revenue Papers in view of observation of the Supreme Court in Suraj Rattan''s case (supra) and of this Court in Mohd. Sujat''s case (portion reproduced in later part of the judgment while dealing with question No. 1) would not detract from their ownership of their respective shares in the lands left behind by Shankar Lal The Defendant/Appellants Kanji and Babu Lai can succeed only when they can show that transfer in their favour is by ostensible owners of the agricultural lands and the same is protected u/s 41 of the Transfer of property Act, 1882. S. 41 of the Transfer of Property Act reads as under:

S.41. Where, with the consent, express or implied of the persons interested in immovable property, a person in the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferer was not authorised to make it; provided that the transferee, after taking reasonable care to ascertain that the transferer had power to make the transfer has acted in good faith.

In Suraj Rattan''s case (supra) dealing with the question of transfer by ostensible owner u/s 41 of the Transfer of property Act, 1882 the Supreme Court held as under;

In order that S. 41 of the "Transfer of property Act could be attracted, the Respondents should prove that Ismail was the ostensible owner of the property with the consent of his cosharers and besides that they took reasonable care to ascertain whether Ismail had the power to make a transfer of the full 16 as interest How, the facts however were that except the property being entered in the revenue records in Ismails name, and that the Management of the property was left by the cosharers with Ismail there is not an iota of evidence to establish that Ismail was put forward by them as the ostensible owner, of the property. It is manifest that the conduct of co-sharers in permitting one of them to manage the common property does not by itself raise any estopped precluding them from ascerting their rights.

(emphasis supplied)

In Mohd. Sujat''s case (supra) it was held as under:

It will thus be seen that it is of the essence of-S. 41 that the conduct of the real owner must induce a belief in the transferee that his transferrer had power to make the transfer. The Addl. Distt. Judge was right in the view which he took that mutation of names by itself created no proprietary title; See Chokey Singh v. Jote Singh 1909 (31) All. 73. Mutation is merely a statement of the facts which existed as to the possession of the property. Consequently it follows that neither the mutation entry nor the entry in the record of Rights can supply the place of a title-deed, and a purchaser who acts upon such an entry as evidence of title does so at his risk and it enhances the burden of proof which law lays on his to prove that he acted in good faith. If the title of the transferrers was based upon mere prior transfers and they had the custody of the title deeds showing them as the apparent purchasers of the property, the matter would have been different, but here the title was by inheritance from a father and it was incumbent on the transferees to have used reasonable care in ascertaining whether the transferrers were the only persons on whom inheritance devolved or there were some other co-heirs including females.

(Emphasis supplied)

In Nagorao''s case (supra) even is real owner, silence on the part of the real owner would not work an estopped unless it was such as to induce a belief that he had no rights. In Sheikh Hussain''s case (supra) dealing wish S. 41 of the Transfer of property Act it was held that:

But then a principle of equity can be invoked only in favour of a person who is diligent and who is duped because of some sharp practice or standing by of another when he had a duty to speak.

Quite obviously, therefore, there is no representation by the Plaintiff to him regarding the title to the property. The mere fact that he came to know of the Plaintiff''s conduct after he purchased the property is of no consequence.

In Beyas Singh''s case (supra) on which both the parties place reliance dealing with essentials for application of S. 41 of the Transfer of property Act, 1882 it was held as under:

This section provides on exception to the general rule that a transferor cannot confer upon his transferee a better title than he himself has. The conditions which must be fulfilled before a real owner can be deprived of his rights by the act of the ostensible owner are according to this section as follows:

(1) A person must be ostensible owner of a property with the consent, express or implied of the real owner;

(2) The transferee must purchase the property from the ostensible owner for consideration.

(3) Before taking the transfer, the transferee must take reasonable care to ascertain that the transferor has power to make the transfer.

(4) The transferee must act in good faith.

The care required of a transferee under the third condition mentioned above must be the kind of care which an ordinary man of business is expected to take. If the ostensible owner is in possession of the property and he also produces the title deed, and transferee cannot be expected to make any searching enquiry in the absence of any ground for suspicion that the transferer may not be the real owner. The standard and nature of the necessary enquiry by the transferee must, therefore, very according to the different circumstances of each case.

Now sale-deeds in favour of the Appellant/Defendants copy of which are Exh. 3-D/4 and 3-D/4 and 3-D/5 themselves show that apart from the vendors Mst. Gomtibai and Mahadeo Plaintiffs, Parmanand Chunibai @ Hirubai were shareholders in the lands being alienated. The sale-deed further shows that it did not purport to transfer the share of Plaintiff Parmanand and recited that he had left the place without any address a year before the date of execution of sale-deed From the statement of Defendant Kanji it is observed that he knew that Mst. Dhankunwarbai and Punibai had share in the land but he did not make any attempt to enquire from them as to whether they had permitted Mst. Gomtibai and Mahadeo to alienate their shares. On the other hand, the Defendant Kanji himself admits that consent of Parmanand in respect of sale-deed in this favour was not obtained because Parmanand was not there in the village. He also admits that he had no conversation with Parmanand on this account. He also admits that sale of Parmanand''s share was not made to him.

Shri Singh''s argument that statement of Karsan (P. W. 1) that Defendant Gomtibai and Mahadeo had mortgaged the land with him was not taken into consideration by the Courts below is of no importance because the Defendants do not claim that on the basis of this mortgage they got sale-deed executed in their favour by Mst. Gomtibai and Mahadeo. This argument would not help the Defendant/Appellant.

As for Shri Singh''s reliance in Kovvuri Satyanarayanamurthi and Others Vs. Tetali Pydayya and Others, , which inter alia held that no hard and fast rules can be laid down as regards the extent to which a transferee from the ostensible owner should take reasonable care to ascertain that the transferor had power to make the transfer, such case would have to depend on its own circumstances and the only test that can be laid down in that the transferee should show that he acted like a reasonable man of business and with ordinary prudence. This decision would not help the Defendant/Appellant because they have not shown that they took any care much less reasonable care to ascertain whether other legal heirs of Shankar Lal had authorised the co-owners Mst. Gomtibai and Mahadeo to effect the tranefer as claimed. For the same reason Hussain Banu''s case (Supra) dealing with distinction between S. 4i of the transfer of Property Act and S. 53 ibid is not directly relevant for the present appeal.

Catholie Mission Presentation Convent by Mother Superior, Coimbtore and Ors.''s case (supra) dealing with condition to be fulfilled for invoking S. 41 inter alia laying as to what enquiry should be made to ascertain that ostensible owner was the true owner in any particular case depends upon circumstances of that case, is also not helpful to the Defendant/Appellant.

Sha Karamshi Vershi''s case (supra) dealing with S. 41 of the Transfer of Property Act and transfer by ostensible owner and subsequent cannot of the real owner and need of specific pleading to get benefit of provision is also not helpful to the present Defendant/Appellants.

Fazal Hussain''s case (Supra) inter alia holding that transfer need not be made with consent of real owner is also not helpful to the present Defendant-Appellants because in another part of the judgment it has been held that there is no hard and fast rule as to extent to which transferees should make enquiries He should act like reasonable man of business and with ordinary prudence. The decision further held that transferee taking transfer from one of co-heirs is not entitled to protection u/s 41. The decision would help not the Defendant/Appellants but Plaintiffs/Respondents Parmanand. Dkankunwarbai and Punibai.

Tejmal v. Sawaji (supra) on facts is clearly distinguishable because in that case daughters Amriti and Dari who could assert their rights as law-ful heirs to the property after death of mother Mst. Tulsa, disclaimed title in themselves and got the record of rights officer to enter Deepa''s name as rightful owner of the property. The Court also held that but for the representations and the conduct of these two women the Appellant Tejmal would not have to his own detriment dealt with Dipa as the owner. The case on these facts is distinguishable and does not help the present Defendant/Appellants.

Shri T. N. Singh''s grievance as to Plaintiffs Dhankunwarbai, Punibai and Defendants Mst. Gomtibai and Mahadeo not having entered witness-box and examined themselves and his prayer that adverse inference on this account be drawn against them, in the facts and circumstances of the case, is not acceptable. It is no more in dispute that the Plaintiffs and Defendant Nos. 1 and 2 were heirs of deceased Shankarlal and had inherited the agricultural lands left behind by him after his death. The Defendant Nos. 3 and 4 purchased the land not from all the heirs but only from some of them i. e. Defendant Nos. 1 and 2. It was primarily for these Defendants to allege and prove that Defendant Nos. 1 and 2 were ostensible owners on behalf of other heirs of the lands and that before getting sale-deed executed by Defendant Nos. 1 and 2 in their favour they had exercised reasonable care and made enquiry to that effect. Having themselves not done that and failed in discharging the burden cast on them they cannot be heard to say that adverse inference should be drawn against them i. e. Mst. Dhankunwarbai, Mst. Punibai and Mst. Gomtibai and Mahadeo.

The Plaintiff had claimed mesne profit but the Courts below did not award the same. The First Appellate Court has recorded that the Plaintiffs had no objection on this account. The Courts below did not order-refund of part consideration to the Defendant Nos. 3 and 4 now the Appellants before this Court. No argument has been addressed on the point nor was any substantial question of law on this point formulated. The point does not, there-fore requires any consideration.

The Defendant/Appellants knew that father-deceased Shankar Lal had besides widow Mst. Gomtibai and son Mahadeo, the executants of sale-deed in favour of the Defendant/Appellants left behind Plaintiffs Paramanand. Mst. Dhankunwarbai, Mst. Punibai and Mst. Chunibai. The possession of Mst. Gomtibai and Mahadeo over the lands as co-owners would not by itself make them ostensible owners of the land. The two Defendants in spite of the fact that the Plaintiffs were also heirs of Shankarlal took no care to ascertain from the Plaintiff whether they had authorised Mst. Gomtibai and Mahadao to alienate the lands in favour of the Defendants. It also does not appear that the two Defendants/Appellants made any inquiries in this regard, they cannot be said to have taken reasonable care to ascertain that the transferer had power to make the transfer and they cannot also be said to have acted in good faith.

As a result of the aforesaid discussion, there appears no justification to interfere with the judgment and decree passed by the Courts below. The appeal is dismissed with costs on the Appellants. Pleader''s fee according to schedule or certificate whichever is less. Decree be drawn up accordingly.