Ram Chalitra Thakur and Others vs Shivanandan Thakur and Others

Wort, J.—As I understood Mr. Sushil Madhav Mullick''s argument in opening this appeal it is this: that there was no circumstance in this case which would necessitate any inquiry by the defendant as to the title of his vendor who according to the judgments of the Courts below, was the farzidar of the plaintiffs. In replying to Mr. Manohar Lal''s argument on behalf of the respondent, Mr. De contended that in effect the question of the onus of proof u/s 41, T.P. Act, as to the taking of reasonable care and acting in good faith depended upon whether the purchaser came to Court as a plaintiff or whether it was the real owner who had allowed the property to remain in the hands of his farzidar; whether it was the one or the other who came to Court as plaintiff.

In my judgment however the propositions which have been put forward and which I have mentioned cannot be supported. Another branch of the argument which was suggested by Mr. De and by Mr. Mullick was that the rule as laid down in Section 41, T.P. Act, was not exhaustive and in support of that argument generally the case of Ramcoomar Koondoo v. MacQueen (1872) IA Sup 40 was relied upon. There Sir James Colville, delivering the opinion of the Judicial Committee of the Privy Council, made this statement:

The learned Counsel who has argued this case for the respondent does not himself rely upon the circumstances as one which ought to have put the purchaser upon inquiry, and their Lordships cannot see that there is anything in her position as a Mahomedan widow living with her children upon this estate, and sometimes letting it, which should have put anyone upon inquiry whether she was the real owner or not.

The principle underlying those observations had been described previously in the judgment as a doctrine not only of the English Court of Chancery but a general equitable principle. From the passage which I have read it is clear that applying the equitable principle as laid down in that case, it would be necessary to show such circumstances as would put the purchaser on inquiry. But in my judgment the law has been altered to some extent by Section 41, T.P. Act, which provides that:

where, with the consent express or implied, of the persons interested in Immovable 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 authorized to make it provided (and these are the important words) that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

It is clear to me therefore that the purchaser himself in every case must show that he had taken reasonable care and acted in good faith. It is contended in this case that the kobala under which the transfer was made in the name of the farzidar and that had an enquiry been made or the document been called for that fact would have been found, and that being so, the purchaser, who is the appellant before me, is covered by the provisions of Section 41. But neither the equitable principle as stated in the decision in McQueen''s case (1872) IA 40 nor Section 41 has any reference to the result to the inquiry but merely to the fact.

The learned District Judge in this case has stated that D.W. 1 had said that he never saw any papers because he already knew the property that he was purchasing. On this point there is one important matter which arises. The findings of the Courts below show quite clearly that the kobala under which the farzidar purchased, although in the name of the farzidar, was in fact in possession of the plaintiff. Had the purchaser known that fact, it would certainly have brought to his notice one item of evidence, at any rate, establishing the title of the plaintiff and showing that his vendor had no right to transfer the property to him. This fact is important because the defendant came into Court with a story, which was disbelieved, that the document was in fact in the possession of the farzidar but it had been stolen by the plaintiff.

Whether that is the explanation of D.W. 1 in his evidence, namely that he saw no papers, is perhaps immaterial; but it was a matter in regard to which there was great suspicion in the mind of the learned Judge in the Court below.

Now the question is whether in these circumstances it can be said that the defendant complied with the provisions of Section 41, T.P. Act. Incidentally, in my judgment, it seems that Section 41 is now the law and not the statement of the law as expressed in McQueen''s case (1). When once the defendant admitted that he saw no papers, it is impossible for me to say that the learned Judge was wrong in coming to the conclusion that the defendant did not take reasonable care to ascertain that the transferor had power to make the transfer.

It is obvious that the mere fact that the vendor''s name appears in Register D is insufficient as has been pointed out in the case of Sheogobind Ram Barai and Another Vs. Anwar Ali and Another, to which I myself was a party. For these considerations, it seems to me that it is impossible for me to say that the decision of the learned Judge in the Court of appeal below was wrong in law. That being so, this appeal must be dismissed with costs. Leave to appeal is allowed.