Wali Ram vs Des Raj and Others

S.S. Sudhalkar, J.—Hari Ram alias Hari had a son named Ram Rattan. Ram Rattan has six sons, namely, Des Raj, Vinod Kumar, Parkash Chand, Ramesh Chand, Dharam Paul and Vijay Kumar. In civil suit No. 452-C of 1988, Desh Raj and Vinod Kumar viz. the present respondents 1 and 2 were the plaintiffs and the suit was filed against Wali Ram, the present appellant and Ram Rattan-respondent No. 3 in this appeal. It is the case of the plaintiff-respondents 1 and 2 that Hari Ram had made a Will of his property in favour of respondents 1 and 2 and their brothers excluding their father viz. respondent No. 3 of this appeal. Hari Ram died on 11.9.1983. On 25.12.1982, Ram Rattan-respondent No. 3 had contracted to sell 73 Kanals 13 Marlas of land out of the suit land measuring 112 Kanals 8 Marlas to one Bajrang Dass as General Attorney of his father Hari Ram. He took the earnest money.

On 19.3.1987, i.e., after the death of Hari Ram, Ram Rattan made an agreement of sale of land- in favour of Wali Ram, the present appellant. Suit No. 452-C of 1998 was filed by Des Raj and Vinod Kumar through their mother Satya Devi because they were minors at that time. They have pleaded that by virtue of the Will dated 4.2.1983, they become the owners of the suit land after the death of Hari Ram. However, mutation No. 2200 was wrongly sanctioned on 11.9.1983 in favour of Ram Rattan. Their brothers viz Parkash Chand, Ramesh Kumar and Dharam Paul had already filed a suit against their father and it was decreed on 27.3.1987 holding that sons of Ram Rattan were the owners of the land measuring 112 Kanals and 8 Marlas. On the basis of that decree dated 27.3.1987, mutation No. 2632 was sanctioned in favour of the plaintiffs. Thereafter, all the sons of Ram Rattan vide mutation No. 2689 sanctioned on 9 11.1987 partitioned their land amongst themselves. They have further contended that their father Ram Rattan wrongly entered into an agreement of sale of land in question on 19.3.1987 with appellant Wali Ram by receiving a sum of Rs. 15,000/- towards earnest money and the possession was wrongly delivered by their father to the appellant. It is also contended that their other three brothers, namely, Parkash Chand, Ramesh Chand and Dharam Pal had already sold their shares vide sale deed dated 15.5.1987 and they had already alienated their shares in the suit land in favour of the vendees and mutation No. 2697 was sanctioned in their favour. The plaintiffs-respondents 1 and 2 claimed that they are in possession of the suit land but because of the fraudulent agreement of sale dated 19.3.1987 and an affidavit of the even date executed from Ram Rattan, the entries in Khasra girdawari were changed in favour of appellant-defendant No. 1. It is further contended that the agreement of sale is bogus and as a result of fraud it does not bind the plaintiffs-respondents 1 and 2.

Plaintiffs-respondents 1 and 2 have prayed for a decree for declaration that they are the owners in equal shares of land measuring 38 kanals 13 marlas and Ram Rattan has nothing to do with the suit land and the alleged agreement of sale dated 19.3.1987 was bogus and fraudulent document and it does not bind their rights and is liable to be cancelled. They have also sought a declaration that the appellant-defendant No. 1 is wrongly shown as a tenant in respect of the suit land on payment of 1/3rd share of produce as rent and the appellant has been in unauthorised possession of the suit land. They have also prayed for a decree for permanent injunction restraining Ram Rattan from executing any sale deed or transferring the suit land in favour of the appellant and further restraining Ram Rattan from enforcing the alleged agreement of sale dated 19.3.1987.

The suit was contested by appellant-defendant No. 1 alleging that Hari Ram was not competent to execute a valid Will because the land in suit was ancestral and coparcenary property. The alleged Will dated 4.2.1983 is illegal and invalid. The civil Court decree dated 27.3.1987 is based on fraud and the same is null and void. He has further contended that at the time when the agreement of sale was made, Ram Rattan was recorded as owner in respect of the suit land and he had paid earnest money to Ram Rattan in good faith and that Ram Rattan was in possession of the suit land and he had obtained possession from him illegally by virtue of the agreement of sale.

Ram Rattan filed separate written statement alleging that the land in dispute was ancestral coparcenary property qua Hari Ram, who was not entitled to make any Will in favour of any person with regard to ancestral coparcenary property. It is contended that the plaintiffs fraudulently obtained decree dated 27.3.1987 by suppression of service of summons and the said decree has been challenged in the Court.

The Trial Court held that the plaintiffs-respondents No. 1 and 2 are the owners in equal share of land. It also held that the impugned agreement of sale dated 19.3.1987 is the outcome of fraud and liable to be cancelled. As a result, the suit was decreed to the effect that the plaintiffs are entitled to possession in equal shares in respect of the land measuring 38 Kanals and 13 Marlas. An appeal was filed by Wali Ram and Ram Rattan against the plaintiffs-respondents No. 1 and 2 being Civil Appeal No. 125 of 1994. The learned Additional Sessions Judge after hearing the parties upheld the judgment of the trial Court and dismissed the appeal. Being aggrieved by the said judgment and decrees of the Courts below, the appellant has filed the present appeal against the Des Raj and Vinod Kumar-plaintiffs and defendant No. 1.

The suit and appeal were decided by the Courts below along with another suit and appeal viz. Civil suit No. 628-C of 1985 and civil Appeal No. 44 of 1994. The other suit was filed by the plaintiffs-respondents No. 1 and 2 and their brothers against Ram Rattan and Bajrang Dass.

I have heard learned counsel for the parties. The learned counsel for the appellant argued that Hari Ram had no right to execute the Will, and that the appellant was protected by the provisions of Section 41 of the Transfer of Property Act (for short the Act).

The capacity of Hari Ram to execute the Will may not be discussed in the present appeal in view of the fact that this point was conceded before the lower appellate Court. The lower appellate Court has observed in paragraph 24 of its judgment as under:-

"Learned counsel for the appellants fairly conceded before me that he had miserably failed to prove on the file that the suit property in the hands of Hari Ram was ancestral property and he was not competent to alienate the suit land by way of Will."

The learned counsel for the appellant argued that the Will is an outcome of fraud and malpractice. The execution of the Will has been proved by the plaintiff-respondents. The lower appellate Court has not accepted the contention that Will is an outcome of fraud or malpractice. There is no reason shown to me as to how the Will is an outcome of fraud and malpractice. Moreover, Ram Rattan who could have been the best man to prove the same has abstained from filing second appeal and, therefore, the present appellant cannot take up this plea. Moreover, even if this plea is taken then, as mentioned above, there is nothing to come to a conclusion different from that of the lower appellate Court on this point.

The learned counsel for the appellant argued that before execution of the agreement of sale, appellant had verified also the facts from the revenue entries and the appellant is a bona fide purchaser. He has also argued that the agreement of sale is not in dispute but the legality is challenged. He has also argued that the onus was on the other side to show that he was not a bona fide purchaser. He has also argued that the appellant is ready to pay the market price and that he is in possession of the suit land.

Section 41 of the Act reads as under:-

"41. Transfer of ostensible owner.- Where with the consent, express or implied, of the person interested in immovable property, a person is the ostensible owner of such property and transfer 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."

Learned counsel for the respondents argued that still the transfer has not taken place and there is only an agreement of sale, therefore, the appellant cannot raise a plea that he is a bona fide purchaser for value. According to Section 5 of the Act, transfer of property means an act by which a living person conveys property in present or in future, to one or more other living persons and ''to transfer property" is to perform such act.

The provisions of Section 41 of the Act can apply to transfer. Here, in this case no sale has taken place in favour of the appellant Wali Ram and, therefore, he cannot take an advantage of Section 41 of the Act. It is not shown to me that the provisions of Section 41 will apply to agreement of sale also.

Learned counsel for the appellant tried to rely on the cases of Jagan Nath v. Raj Kumar 1987 P.L.J. 646 and State of Haryana and Ors. v. Smt. Savitri Devi and Ors.1986 P.L.J. 656. Both these cases deal with the effect of Section 41 of the Act on the sale of property.

A point of equity is raised by the learned counsel for the appellant. It is argued that the respondents had honoured another such agreement in favour of one Bajrang Dass. The respondents counsel has argued that such transfer in favour of Bajrang Dass was honoured because of agreement of sale dated 25.12.1982 which was made by Ram Rattan as a Mukhtiar during the life time of Hari Ram.

Firstly, because the respondents have sold some land to other persons, it cannot be said that they should honour the agreement of sale made by Ram Rattan to the present appellant. Moreover, so far as the other sale is concerned, Ram Rattan had made the agreement as a power of attorney holder of Hari Ram and, therefore, also the same cannot be compared with the agreement of sale with the present appellant. Otherwise also the sale in favour of Bajrang Dass does not create any right in favour of the appellant.

In view of the above reasons, the appeal is found to be without merit. It is, therefore, dismissed. No order as to costs.