RSA No.2062 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2062 of 2009 (O&M) Date of Decision: 19.5.2009 Ramsanahi ..Appellant Vs. Parmod & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Alok Jain, Advocate, for the appellant. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This regular second appeal is directed against the judgment and decree dated 15.4.2009 passed by the learned Additional District Judge, RSA No.2062 of 2009 (O&M) 2 Rohtak partly allowing the appeal filed by the plaintiff/appellants by setting aside the sale deed dated 28.8.2002 qua the share of plaintiff No.2. Plaintiff/respondents herein filed a suit on the pleadings that Udey Singh was owner of the suit property as detailed in para No.2 of the plaint. After his death plaintiff No.1 and defendants No.1 and 2 being the successors succeeded to the estate of Udey Singh. Defendant no.1 is the widow of Udey Singh, whereas plaintiffs No.1 and defendant No. 2 are the sons of Udey Singh. Defendant No.1 by way of registered relinquishment deed relinquished her share comprised in Khewat Nos. 145 and 146 in favour of her grand-son i.e. plaintiff No.2 minor son of plaintiff No.1 and defendant No.2 her son in equal share. The case of the plaintiff/respondents was that after the execution of relinquishment deed defendant No.1 ceased to have any right in the property, however, she in collusion with defendants No.2 and 3 sold the land comprised in khewat No.146 in favour of defendant No.3, even though she had been left with no right in the property. On the pleadings, referred to above, prayer was made for setting aside the sale deed dated 28.8.2002 executed by defendants No.1 and 2 in favour of defendant No.3. On notice, defendant No.1 though appeared but filed no written statement . Defendants No.2 and 3 contested the case by filing written statement and claimed that relinquishment deed was mere paper transaction on the basis of which plaintiff No.2 did not get any right. Therefore, RSA No.2062 of 2009 (O&M) 3 defendant No.1 was having no right to alienate her share to any body. Appellant/defendant No.3 filed separate written statement claiming himself to be bona fide purchaser of the suit property vide sale deed dated 28.8.2002 having paid consideration to the vendors i.e. defendants No.1 and 2. In support of their case the plaintiffs proved registered relinquishment deed executed in favour of plaintiff No.2 and defendant No.,2 whereas defendants examined witnesses in support of the case set up by them. Learned trial court was pleased to dismiss the suit filed by the plaintiffs. In appeal learned lower appellate court on appreciation of evidence was pleased to hold that defendant No.1 had relinquished her share comprised in khewat Nos.145 and 146 by way of relinquishment deed dated 8.10.2001 Ex.P.2, which was executed in favour of plaintiff No.2, minor, and defendant No.2. The learned lower appellate court also found, as a matter of fact, that defendants No.1 and 2 executed sale deed in favour of defendant No.3 vide registered sale deed dated 28.8.2002. The learned lower appellate court found that after relinquishment deed defendant No.1 ceased to remain the owner of the land comprised in khewat Nos.145 and 146 and therefore, could not have alienated the land comprised in khewat No.146 in favour of defendant No.3. The plea that relinquishment deed was a mere paper transaction was not accepted it being a registered document. Learned lower appellate RSA No.2062 of 2009 (O&M) 4 court was further pleased to hold that the contention of the learned counsel for the appellant that relinquishment deed was never acted upon as mutation was not entered into, did not carry any force as the ownership was acquired by plaintiff No.2 on the basis of registered relinquishment deed. Defendant No.1 did not oppose the suit filed by the plaintiffs. The learned court held that defendant no.2 was blowing hot and cold, as on one hand, it was pleaded that relinquishment deed was a mere paper transaction, but at the same time he executed the sale deed qua the land acquired under the relinquishment deed. The learned court, thus, held that the sale deed pertaining to khewat No.146 was bad qua the share of plaintiff No.2, however, it upheld the sale deed qua share of defendant No.2. The learned court also rejected the plea of defendant No.3 to be bona fide purchaser. The suit was thereafter partly decreed and sale qua share of plaintiff No.2 was set aside. Mr.Alok Jain, learned counsel appearing on behalf of the appellant contended that the appeal raises the following substantial questions of law for consideration by this court:- 1. Whether impugned judgment and decree dated 15.4.2009 passed by learned Additional District Judge, Rohtak, whereby well reasoned judgment and decree passed by learned Civil Judge (Jr.Division), Rohtak has been set aside, is illegal and perverse, therefore, liable to be set aside? 2. Whether the findings recorded by the learned lower RSA No.2062 of 2009 (O&M) 5 appellate court under issues No.1 and 2 are perverse and based on misreading and mis-appreciation of the pleadings as well as documentary evidence and thus liable to be set aside? 3. Whether the factum of admission by defendant No.2 (respondent No.4 herein) of relinquishment deed dated 8.10.2001 Ex.P.2 being a paper transaction, despite being natural son of defendant No.1 (respondent No.3 herein) the executor of the relinquishment deed and being one of the beneficiaries under the said relinquishment deed was sufficient to dismiss the suit? 4. Whether relinquishment deed dated 8.10.2001 Ex.P.2 having not been reflected in the revenue records, there was a reasonable inquiry, sufficient enough for holding the appellants to be bona fide purchaser for consideration? 5. Whether application for partition Ex.D.1 preferred by plaintiff No.1 and defendant No.1 on 3.2.2004 is in itself sufficient enough to dislodge the relinquishment deed dated 8.10.2001 Ex.P.2? 6. Whether defendant No.2 who had failed to appear in witness box is fatal, especially in the light of the fact that execution of the release deed dated 8.10.2001 Ex.P.2 was not disputed, but was alleged to be sham RSA No.2062 of 2009 (O&M) 6 paper transaction? 7. Whether the learned lower appellate court erred in law in decreeing the suit of the plaintiffs without there being any evidence to support the assertions as made in the plaint? 8. Whether the learned lower appellate court has omitted vital evidence from consideration? In support of the substantial questions of law learned counsel for the appellant vehemently contended that the learned lower appellate court erred in law in holding the appellant, not to be bona fide purchaser by ignoring the well settled law that the vendee was only to see the revenue record. In the revenue record defendant No.1 was shown to be owner in spite of execution of Ex.P.2.. In support of the contention learned counsel for the appellant placed reliance on the judgments of this court in the case of Anup Singh Vs. Smt.Bachni alias Bachan Kaur 1996 (3) PLR 184 and Sukha Singh Vs. Jasvinder Singh 2001 (4) RCR (Civil) 689. In Anup Singh Vs. Smt.Bachni alias Bachan Kaur (supra) this court was pleased to hold that while dealing with agricultural land the prospective buyer can only consult the revenue record. He is not expected to meet each and every member of the family of one time holder of the land, to ask them as to whether they claimed any right in the property and that they dispute the title of the recorded owner. This court in the case of Sukha Singh vs. Jaswinder Singh RSA No.2062 of 2009 (O&M) 7 (supra) was pleased to hold that once the decree was not incorporated in the revenue record, and is ex parte decree is obtained in connivance between the land owners and the plaintiffs, then the claim of the subsequent vendee to be bona fide purchaser cannot be disputed. However, this contention of the learned counsel for the appellant cannot be accepted. Section 41 of Transfer of Property Act reads as under:- “41. Transfer by ostensible owner.-- 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 that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.” Reading of Section 41 of the Transfer of Property Act would show that in order to succeed on the plea of bona fide purchaser it was required to be pleaded and proved that the transferor was ostensible owner and that too with the consent, express or implied, of the real owner, and that the transfer was for consideration and further that the transferee acted in good faith by taking reasonable care to ascertain that transferor had power to transfer. RSA No.2062 of 2009 (O&M) 8 Hon'ble Supreme Court in the case of Hardev Singh Vs. Gurmail Singh (Dead) By LRs. (2007) 2 SCC 404, was pleased to lay down as under:- “9. Application of Section 41 of the Act is based on the law of estoppel to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained, he could not question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. 10. The ingredients of Section 41 of the Act are:- (1) the transferor is the ostensible owner, 2) he is so by the consent, express or implied, of the real owner. (3) the transfer is for consideration; (4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.” In the present case, it may be noticed that defendant No.3 did not plead or prove any act or overt act on the part of plaintiff No.2 which RSA No.2062 of 2009 (O&M) 9 could result in the appellant to believe that defendant No.1 was ostensible owner. Furthermore, the sale is by defendant No.1 who admittedly had no right or title in the property. Hon'ble Division Bench of this Court in the case of Ram Pal Kanwal and others Vs. Sweatamber Sthanic Jain Sabha Faridkot (Regd) and another 1988 R.R.R.137, was pleased to lay down as under:- “26. Refuting the contention, the learned counsel for the plaintiff-respondents placed reliance on the Division Bench judgment of this Court in Gurbinder Singh Vs. Lal Singh and others, in which it was held that if advantage is to be taken of the Rule contained in section 41 of the Transfer of Property Act, it is not enough to show that the transferee was acting in good faith or had paid valuable consideration, but it has further to be proved that the ostensible owner had become such owner with the express or implied consent of the true owner. Since no efforts whatsoever were made by the appellants to verify and ascertain the title to the suit property, the appellants were not entitled in law to claim benefit of section 41 of the Transfer of Property Act” Again Hon'ble Division Bench of this court in the case of Gurbinder Singh and others Vs. Lal Singh and others 1958 P.L.R.528, wherein Hon'ble Division Bench of this court has been pleased to lay down as under:- “ It is clear that if advantage is to be taken of this rule, it is RSA No.2062 of 2009 (O&M) 10 not enough to show that the transferee was acting in good faith or had paid valuable consideration, but it has further to be proved that the ostensible owner had become such owner with the express or implied consent of the true owner. Can it then be said in the present case that the Raja of Faridkot was made to appear the ostensible owner of the property by an implied consent on the part of the true owners? It is said that since the true owners did nothing to interfere with the Raja's possession or with the transfer made by the Raja in favour of Kehar Singh, it should be inferred that the true owners had impliedly consented to it. I find it impossible to reach this conclusion. Certain decisions of the Lahore High court to which it is unnecessary to refer now, did indicate that some latitude should be shown to a bona fide transferee, but the danger of this latitude was soon realized, and later decisions have repeatedly attested the need of protecting the interest of the true owner even against a bona fide transferee unless it is clear that the true owner himself induced the belief that the ostensible owner could deal with the property. I need only refer to a decision of a Full Bench of the Lahore High Court in Shamsher Chand Vs. Bakshi Mehar Chand, which laid down two clear rules:- (1) “that in order to deprive a real owner of his rights in immovable property it must be established that he had given his consent, express or implied, to another to represent RSA No.2062 of 2009 (O&M) 11 himself as the owner of the said property;” and (2) “that mere inactivity on the part of the real owner even with the knowledge of the transfer could not amount to implied consent within section 41 and could not debar him from acquiring his property from the transferee within the period of limitation unless by some word or conduct on his part he had induced the transferee to believe that his transferor was competent to make the transfer”. These are wise rules and I find myself in respectful agreement with them. Looking at the facts of the present case it is clear that if the transferee, i.e. Kehar Singh, had taken the trouble of inquiring into the title of his transferor, i.e., the Raja he (Kehar Singh) could not have failed to discover that the Raja had acquired possession in the course of litigation and that the property had originally belonged to Raj Kaur and Raj Kaur's daughter and daughter's sons were in existence, and further that the Raja's possession was in no manner with the consent of the true owners. It is of no consequence that the true owners did not immediately go to Court to claim their rights and in my opinion, therefore, no advantage can in the present case be taken of the rule in section 41 of the transfer of Property Act.” Thus, in view of the position explained above, it cannot be said that appellant/defendant No.3 was bona fide purchaser for consideration, specially when plaintiff No.2 was a minor. RSA No.2062 of 2009 (O&M) 12 On the second substantial question of law, learned counsel for the appellant contends that the learned lower appellate court failed to notice that the application was moved by the plaintiffs for partition, in spite of the relinquishment deed, and keeping in view that the mutation of the sale was sanctioned. The findings of the learned lower appellate court on issues No.1 and 2 are, therefore, perverse, thus liable to be set aside. In support of this contention learned counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in the case of Thayyil Mammo and another Vs. Kottiath Ramunni and Ors AIR 1966 SC 337. In this case relied upon, Hon'ble Supreme court was considering the case under Kerala Land Reforms Act, 1963, therefore, it has no relevance to the facts of this case where rights of minor are sought to be defeated. It may also be mentioned here that reference was made to the statement of DW 1 in cross-examination, to contend that findings were outcome of misreading of evidence. Stray statement out of context, cannot be the basis to challenge the judgment and decree based on appreciation of evidence in totality. On the third substantial question of law learned counsel for the appellant contended that there was admission by defendant No.2 about the relinquishment deed, being a paper transaction despite being natural son of defendant No.1 and therefore, the admission of defendant No.2 itself was sufficient to dismiss the suit. This plea of the learned counsel for the appellant is again RSA No.2062 of 2009 (O&M) 13 misconceived, as the learned trial court has rightly held that though stand was taken that the relinquishment deed was mere paper transaction but defendant No.2 executed the sale deed by relying upon that very relinquishment deed by claiming himself to be the owner. The fact itself was sufficient to hold that defendant No.3 was aware of the relinquishment deed, otherwise there was no occasion for him to have accepted defendant No.2 as owner of khewat in dispute while executing the sale deed. Once it was proved that the title was drawn by defendant No.2 under the relinquishment deed, it cannot be said that defendant No.3 had no notice of the relinquishment deed, to claim right of bona fide purchaser. Learned counsel for the appellant on the fourth substantial question of law contended that once relinquishment deed was not reflected in the revenue record, and that reasonable inquiry was made the appellant/ defendant No.3 was proved to be bona fide purchaser for consideration. This plea again is repetition of the contention earlier raised. Once it was proved that defendant No.2, himself derived his title under the relinquishment deed it can safely be said that the appellant was also having knowledge of defect in the title of defendant No.1 and therefore, it could not be said that he was bona fide purchaser for consideration. Learned counsel for the appellant on the 5th substantial question of law contended that application for partition Ex.D.1 filed by plaintiff No.1 and defendant No.1 was sufficient to prove that relinquishment deed was not acted upon. This plea is also misconceived. The title of plaintiff No.2 could not be doubted merely because of application by plaintiff No.1. RSA No.2062 of 2009 (O&M) 14 The learned courts below were to protect the interest of the minor and that is what has been done by decreeing the suit. On the sixth substantial question of law learned counsel for the appellant contended that failure of defendant No.2, to appear in the witness box was fatal to the case. This plea again is misconceived. The benefit of non-appearance of defendant was to go to the plaintiff and not to the co- defendant as contended. It was also contended by the learned counsel for the appellant that the learned lower appellate court erred in law in decreeing the suit, without there being any evidence to support the pleadings. Needless to say that this plea is also misconceived. The pleadings in the suit were proved by leading evidence by way of registered relinquishment deed, which was duly exhibited. Lastly, it was contended by the learned counsel for the appellant by placing reliance on the judgment of Hon'ble Delhi High Court in the case of Narinder Kaur and another Vs. Amar Jeet Singh Sethi and another 2000 (3) RCR (Civil) 508 that relinquishment deed operating in favour of a co-sharer amounts to transfer which is required to be effected either by sale deed or by a gift deed depending entirely on the fact whether there was any consideration for such a transfer. This plea deserves to be rejected for more than one reasons. Firstly no such plea was raised before the learned courts below and secondly the relinquishment deed was in favour of family members `and therefore, it was a valid transfer of title. RSA No.2062 of 2009 (O&M) 15 The substantial questions of law raised are, therefore, answered against the appellant. Consequently, finding no merit, the appeal is dismissed in limine. 19.05.2009 (Vinod K.Sharma) rp Judge