: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.448 OF 1990 Ganpati Narayan Nikam, R/a. Nagewadi, Tal. Khanapur, Dist. Sangli ... Appellant Versus 1. Ramchandra Bhiku Savant 2. Shivaji Ramchandra Savant, 3. Vimal Ramchandra Savant, 4. Namdeo Dadu Mane, Decd., Thru Legal Representatives, (a) Sitaram Dadu Mane, (b) Uttam Dadu Mane, (c) Bhagwan Dadu Mane (d) Ganpati Dadu Mane (e) Rukmini Namdeo Mane, (f) Anjana Arun Shinde, R/o. Chikali, Tal. Kadegaon, Dist. Sangli (g) Mohan Namdeo Mane (h) Popat Namdeo Mane (i) Smita Namdeo Mane Respondent Nos.4(a) to 4(e) and 4(g) to 4(i) residing at and Post Nagewadi, Tal. Khanapur, Dist. Sangli ... Respondents Mr. N.V. Walawalkar, Sr. Counsel, with Mr. D.V. Keluskar for the Appellant. Mr. S.M. Mhamane for Respondent Nos.4(a) to 4(i). : 2 : CORAM : SMT. NISHITA MHATRE, J. DATED : 17 TH AUGUST, 2009. ORAL JUDGMENT : 1. The present Second Appeal has been filed challenging the decision of the IIIrd Additional District Judge, Sangli in Regular Civil Appeal No. 274 of 1984. That decision confirms the Judgment and Order of the Civil Judge, Junior Division, Vita in Regular Civil Suit No.63 of 1978. Both the courts below have held that the plaintiff had proved that one Dadu Narayan Nikam had bequeathed the suit property to him by a Will and that Dadu was in a sound state of mind when he executed the Will. Both the courts below have further held that the defendants had proved that the defendant No.2 was the bonafide purchaser of the suit property for value without notice and therefore he was entitled to retain possession of the suit property. 2. Two substantial questions of law which arise in the present Second Appeal are : : 3 : (a).Whether the provisions of Section 41 of the Transfer of Property Act are applicable to the facts and circumstances in the present case when there are no pleadings at all in respect of this provision of law ? (b).Whether both the courts below have erred in appreciating the concept of bonafide purchaser for value without notice ? 3. The brief facts of the present case are as follows: 4. The plaintiff and one Dadu Narayan Nikam were brothers. Dadu being the elder of the two, bequeathed part of his property to the plaintiff under a registered Will dated 17th February, 1972. Dadu died on 4th June, 1973. The plaintiff then sought to enter his name into the record of rights. It appears that on 12th April, 1978, defendant No.2 purchased the suit land for Rs.3,000/- from defendant No.1 who was the daughter of Dadu. Once : 4 : the plaintiff came to know of this sale transaction and he apprehended that his possession of the suit land would be obstructed by the defendants, he filed a suit being Regular Civil Suit No.63 of 1978 for confirming his possession and for an injunction in respect of the suit property. In the alternative, the plaintiff prayed for possession of the suit property. 5. A written statement was filed by defendant No.2 and the heirs of defendant No.1 who passed away immediately after the purported sale of the suit land in favour of defendant No.2. A common written statement was filed in which it was denied that Dadu had executed any Will in favour of the plaintiff. They also denied that the plaintiff was in possession of the suit land and contended that it was defendant No.1, the daughter of Dadu, who was the heir and legal representative of Dadu and, therefore, had succeeded him. It was contended that a mutation entry had been recorded in her name in respect of the suit land immediately after Dadu s death. : 5 : 6. Evidence of the parties was led. Significantly, defendant No.2, who claimed that he was a bonafide purchaser of the suit property for value without notice, did not step into the witness box. Therefore, the evidence before the trial court was that of the plaintiff and the witness who attested the Will of Dadu as also the brother of defendant No.2. 7. On the basis of the evidence on record, the trial court concluded that Dadu was in a sound state of mind while bequeathing the property to the plaintiff. Although the original of the registered Will was not produced in court because it was lost, a photocopy of the same was produced. That evidence was accepted as the plaintiff s statement that he was unable to find the original in spite of his best efforts was unchallenged. Secondary evidence was, therefore, accepted by the trial court. On the basis of this secondary evidence, it was held that the Will was proved and that the plaintiff was the legatee of the suit property under the Will. : 6 : 8. The trial court then considered the issue as to whether defendant No.2 was a bonafide purchaser for value without notice. The trial court considered the fact that defendant No.2 had relied on the mutation entry which was effected on 17th April, 1978 in favour of defendant No.1 Lilabai Ramchandra Sawant and had therefore purchased the suit property from her under the sale deed dated 12th April, 1978. The trial court then considered the provisions of Section 41 of the Transfer of Property Act and concluded that Lilabai was the ostensible owner of the suit property and since defendant No.2 had purchased the property from the ostensible owner, he was a bonafide purchaser for value without notice. In these circumstances, the trial court dismissed the suit by concluding that the plaintiff was not entitled to possession of the suit property. 9. The appellate court has confirmed the decision of the trial court in all respects. : 7 : 10. Mr. Walawalkar, the learned Counsel for the plaintiff-appellant, submits that both the courts below have erred in not passing a decree in favour of the plaintiff where they had recorded concurrent findings of fact that the plaintiff had inherited the property from Dadu under a Will dated 17th February, 1972. He further submits that both the courts below have incorrectly placed the burden of proof on the plaintiff with respect to the issue of defendant No.2 being the bonafide purchaser of the suit property for value without notice. He submits that defendant No.2 did not examine himself before the trial court to prove his bonafides which is incumbent when a purchaser sets up a defense of being a bonafide purchaser for value without notice. The learned counsel further submits that the trial court and the appellate court have given two contradictory findings. He elaborates by submitting that once it is held that the plaintiff was the original owner of the suit property under the registered Will of Dadu, defendant No.2 could not be considered as a bonafide purchaser, much less in view of the provisions of Section 41 of the Transfer : 8 : of Property Act, since this was not the case of the defendants in the written statement filed before the trial court. The learned counsel relies on the judgment of the Privy Council in the case of Bhup Narain Singh vs. Gokul Chand Mahton [reported in AIR 1934 Privy Council 68] in support of his contention that the burden of proof is on the defendant, in a case where the defendant contends that he is a bonafide purchaser for value without notice. The learned Counsel then relies on the judgment of the Supreme Court in the case of Iswar Bhai C. Patel vs. Harihar Behera & Anr. [reported in (1999) 3 SCC 457] to submit that an adverse presumption must be drawn against the defendant who does not present himself for cross-examination or refuses to enter the witness box in order to defeat allegations made against him or to support his pleadings in the written statement. 11. Mr. Mhamane for the defendants submits that this court should not disturb a concurrent finding of fact recorded by both the courts below in a Second Appeal. He points out that when both the : 9 : courts below have arrived at the conclusion that the defendant No.2 was a bonafide purchaser of the suit land for value without notice, this court should not disturb that finding in a Second Appeal. He further submits that the plaintiff had not proved his ownership of the suit land and therefore had no right to file the suit. He then submits that the original Will was not produced and indeed not proved. According to the learned Counsel, it was necessary for the plaintiff to obtain a probate before the title of the suit property could pass to him from Dadu. He relies on the judgment of the Supreme Court in the case of Mrs. Hem Nolini Judah vs. Mrs. Isolyne Sarojsbashini Bose & Ors. [reported in AIR 1962 SC 1471]. Mr. Mhamane then points out that the record of rights did not bear the name of the plaintiff, but that of the defendant No.1- Lilabai. After due diligence the defendant No.2 had purchased the property from Lilabai and therefore he could not be faulted for having relied on the mutation entry in the name of Lilabai. The learned Advocate points out that both the courts below have rightly held that Lilabai was the ostensible owner : 10 : of the suit property and since she had transferred that property to a third party, i.e. defendant No.2, he must be considered to be a bonafide purchaser of the suit property for value without notice. In support of this submission, he relies on the judgment of the Supreme Court in the case of Crystal Developers v/s. Asha Lata Ghosh [reported in (2005) 9 SCC 375]. 12. With the assistance of the learned Advocates appearing for the parties, I have perused the copies of the judgments of the trial court as well as the appellate court. Admittedly, both the courts below have held that Dadu had executed a Will under which the suit property was bequeathed to the plaintiff. The plaintiff had, therefore, derived title to the suit property under the Will of Dadu. The suit property does not fall within the city of Bombay and therefore the judgment relied upon by the learned Advocate for the defendants in the case of Mrs. Hem Nolini Judah (supra) has no application. In that case, the Supreme Court considered whether a Will in respect of the property which falls within the : 11 : jurisdiction of Calcutta was required to be probated before the title to that property could pass to the legatee. After considering the provisions of Section 213 of the Indian Succession Act, the Supreme Court held that no right as an executor or legatee can be established in any court of justice unless probate or letters of administration have been obtained of the Will under which the right is claimed. However, on reading Section 213 which was amended by insertion of sub-section (2) w.e.f. 30th March, 1962, i.e. after the judgment was delivered in Hem Nolini Judah s case, the section applies only in cases of Wills made by Hindus where the property lies within the local limits of the ordinary original civil jurisdiction of the High Courts of Calcutta, Madras and Bombay and in cases where such Wills are made outside these jurisdictions in respect of properties which are situated within those limits. Undisputedly, the present suit land does not fall within the local limits of the ordinary original civil jurisdiction of the Bombay High Court. Therefore, the property vests in the legatee on the date of death of the testator in terms of section : 12 : 104 of the Indian Succession Act. Thus, the plaintiff became entitled to the suit property on the day of Dadu s death in 1973. 13. In these circumstances, the plaintiff has been held to be the owner of the suit property and therefore would in normal circumstances be entitled to possession. 14. However, as noted above, both the courts below have held that defendant No.2 is the bonafide purchaser for value without notice and therefore possession of the suit land cannot be handed over to the plaintiff. The Privy Council has in the case of Bhup Narain Singh (supra) observed while considering a case under the Specific Reliefs Act that an original contract may be specifically enforced against the subsequent transferee but an exception is allowed to that general rule. That exception is allowed to the transferee and it is for the transferee to establish the circumstances which will allow him to retain the benefit of the transfer which prima facie he had no right to get. Therefore, : 13 : it is for defendant No.2, who claims the exception, to prove that he was a bonafide purchaser. Admittedly, defendant No.2 did not step into the witness box and instead examined his brother. In the case of Iswar Bhai C. Patel (supra), the Supreme Court has held that adverse presumption must be drawn when the defendant does not enter the witness box to defeat the allegations made against him or to support his pleadings in the written statement. 15. As mentioned earlier, the defendant No.2, who filed a joint written statement with the heirs of defendant No.1, has not stepped into the witness box. Although it was his case before the trial court that he was a bonafide purchaser for value without notice, he has not substantiated these pleadings by proving it through his own testimony in court. There is, thus, no statement on oath made by defendant No. 2 indicating that he was indeed a bonafide purchaser of the suit property for value without notice. In these circumstances, an adverse presumption would have to be drawn as observed by the Supreme Court in the case of Iswar Bhai C. Patel (supra). Therefore, : 14 : this finding of the courts below has to be set aside. If defendant No.2 wanted to establish his case of being a bonafide purchaser, it was for him to step into the witness box and prove his case. This has not been done by defendant No.2 and, therefore, the finding of both the courts below that he was a bonafide purchaser for value without notice cannot be accepted. 16. As regards the issue of Section 41 of the Transfer of Property Act, there are no pleadings at all in the written statement wherein either of the defendants have contended that this Section would be applicable to the facts and circumstances of the present case. The courts below have erred, therefore, in concluding that Section 41 of the Transfer of Property Act is applicable to the present case without there being any pleadings on record. It is trite that courts cannot make out a case for a party de hors the pleadings. It is only when there are pleadings on record that an issue can be framed and parties would be put to notice to lead evidence on that count. The Supreme Court in the : 15 : case of Trojan & Co. vs. RM. N.N. Nagappa Chettiar [reported in AIR 1953 SC 235] has stated thus : It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled ot grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. 17. In the present case neither party had raised the contention regarding the applicability of Section 41 of the Transfer of Property Act to the facts in the present case. Therefore, in my opinion, the courts below could not have decided that it was applicable by assuming that there was such a pleading. A cursory glance at Section 41 of the Transfer of Property Act would indicate that it is for the transferee to prove that he had purchased a property and had acted in good faith after taking reasonable care to ascertain whether the transferor had the power to transfer when there is an ostensible owner of the property. Thus, if a transferee claims that he had purchased the property : 16 : from an ostensible owner of the property, it is for the transferee to prove that he had taken reasonable care that the transferor, i.e. the ostensible owner, was empowered to transfer the property. The ostensible owner can transfer such property only with the consent, either express or implied of the person interested in the immovable property, for consideration. In the present case, defendant No.2 has not proved that Lilabai was the ostensible owner or that she had the express or implied consent of the owner of the suit property to transfer the property. The alleged sale took place in 1978. Dadu expired in 1973 leaving behind a Will in favour of the plaintiff. Therefore, the plaintiff had acquired title to the suit property on the death of Dadu under Section 104 of the Indian Succession Act. There is no evidence on record to indicate that Lilabai had either the express or implied consent of the plaintiff to sell the suit land or transfer the same to defendant No.2. Defendant No.2 has also not proved that he had taken reasonable care to ascertain that Lilabai, from whom he purchased the property, had the power to make the transfer. : 17 : 18. In these circumstances, I am of the view that both the courts below had erred in concluding that the plaintiff was not entitled to possession of the suit land when they had accepted that he was the owner of the suit land under a valid bequest made by the Dadu in his favour. The findings of the trial court and the appellate court that defendant No.2 was a bonafide purchaser for value without notice is incorrect and has to be set aside. The observations with respect to Section 41 of the Transfer of Property Act are also unsustainable. 19. The Second Appeal allowed. 20. The Suit is, therefore, decreed. .......