Suleman Saheb and Others vs Perichevla Venkatraju

Devadoss, J.—The first point urged in this second appeal is that the lower Appellate Court wrongly threw the onus of proof as regards the

necessity for sale on defendants 8 to 11. The sale was by the maternal grandmother of the plaintiff and is said to be for the discharge of a debt

contracted by the maternal grandfather under Exhibit XIII. Exhibit XIII is found to be not a genuine document. The sale-deed was exeouted by the

grandmother and hy the plaintiff, who was a minor at the time, his father acting as guardian. Mr. Somasundaram''s contention is that, inasmuch as

the plaintiff joined in the execution of the sale deed through his father there is a presumption that the sale was for a purpose which could bind the

plaintiff. The plaintiff was at the time a minor, and the mere fact that the father joined in executing the deed would not throw the onus on the plaintiff

to show that there was no necessity for the sale. The principle of law is that in the case of purchase from a limited owner, it is for the alienee to

make out that the sale is good or to show the circumstances which would give the limited owner right to convey full title to the properties sold. In

this case the mere fact that the father joined in the sale deed along with his grandmother would not shift the burden of proof from the shoulders of

defendants 8 to 11 to those of the plaintiff. The lower Court has rightly held that the defendants have not discharged their burden. I hold that there

is nothing in this contention.

The next contention is that the lower Court ought to have granted the value of improvements to defendants 8 to 11. There is some evidence that

the property was improved by sinking a well on the land. But the question of improvements was not directly put in issue in the lower Appellate

Court though it is suggested by Mr. Somasundaram that this point was actually raised in that Court, and it is denied by respondent''s vakil that it

was raised. The judgment is silent on the point. Granting for argument sake that this point was raised and the Subordinate Judge failed to decide it,

the question is whether I should direct the Subordinate Judge to record a finding on this point. It is clear that plaintiff''s mother was alive on the date

of the sale to defendants 8 to 11. The sale deed is dated 20th December, 1891 and the plaintiff''s evidence is that his mother died within 12 years

before the evidence in the District Munsiff''s Court. He gave the evidence in 1920. So she must have been alive at the time of the document. If that

is so, the question is whether defendants could be said to be bona fide purchasers within the meaning of Section 51 of the Transfer of Property

Act. Section 51 says:

When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto,

and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction

either to have the value of improvements estimated and paid or secured to the transferee.

Now in this case it is suggested for the appellants that defendants 8 to 11 are Mahomedans and they thought that they got a good title from a

Hindu widow. But whether the vendees are Mahomedans or other class of people the question is whether when a person buys from a Hindu

widow, he gets a good title. Under certain circumstances, a Hindu widow can validly sell her husband''s property and when the vendee is not able

to prove these circumstances he is not to be considered as a bona fide purchaser. In this case there is the additional circumstance that the plaintiff''s

mother was alive on the date of sale. The grandmother had only the right of widow and the plaintiff''s mother could only have the right of a

daughter. The plaintiff can succeed to the property only in case he survives the daughter. In these circumstances the question is whether the

defendants can be considered to be bona fide purchasers for value. Anybody who knows anything of the Hindu Law would know that a Hindu

widow cannot ordinarily convey a good title to the property of her husband. She can convey a good title only under certain circumstances and the

existence of those circumstances has to be proved by the vendee. Even if the defendant says that he was misled by the fact that the plaintiff''s father

signed the document'' on his behalf that is no excuse for overlooking the position of the plaintiff''s mother. It was open to her to challenge the whole

transaction, because after the death of the grandmother she was the person entitled to the property for life. I do not think in a case like this, it can

be said that defendants 8 to 11 are bona fide purchasers within the meaning of Section 51 of the Transfer of Property Act.

It was held in Nanjappa Gounden v. Peruma Gounden (1909) 32 Mad. 530 that a person, who buys from a person, who could convey good

title only under certain circumstances, in the absence of such circumstances, is not a bona fide purchaser for value and is not entitled to the value of

the improvements, u/s 51 of the Transfer of Property Act. The learned Judges observe at page 531:

Although the purchase of the defendant was for consideration he would not have believed in good faith that it gave him a title to the property. His

good faith at the time he made the improvements is based on the fact of the purchase and nothing more. What is urged in effect on behalf of the

defendant is that even if he knew he was purchasing the property from Hindu females who could sell it only under specified circumstances and that

there was no use for them to sell the land still he might have believed that he had acquired a good title or otherwise he would not have spent money

on its improvements.

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The defendant knew or must be presumed to have known which is the same thing, that the persons purporting to sell the property could under the

Hindu Law sell it only under certain circumstances, and he either knew that these circumstances did not exist or wilfully abstained from making any

enquiries on the subject. In such a case it is difficult to conceive that the purchaser could have believed and much less believed in good faith that the

vendor conveyed a good title to the property.

In this case defendants 8 to 11 could not have believed that they were getting title to the property when they knew that the plaintiff''s mother was

alive. Further there is the fact that they relied upon the discharge of a debt alleged to be due from the plaintiff''s grandmother and such debt was

found to be non-existent.

In these circumstances, I do not think defendants 8 to 11 are entitled to the value of the improvements, if any, affected by them on the plaint

property.

The Second Appeal fails and is dismissed with costs.