Case: Aman Sharma &amp; Anr Vs. Umesh &amp; Ors

was having one brother Kailash Nath and sister Prakash Lata. The Plaintiffs acquiesced the rights of Defendants No.2 & 3 by not filing suit for cancellation of sale deed after purchase of the subject property and during construction went on for a year. There cannot be any reasonable basis or to have any suspicion and doubt regarding the bonafide purchase of the subject property from the Defendant No.1. The said purchase was after due diligence and on verification of the house tax assessment record of the year 1992-93 as maintained by Municipal Committee, Firozepur City. Water bills and electric bills were all in the name of Defendant No.1. Thus, on the advice of the advocate and after taking loan from the bank, a non-encumbrance certificate was issued and a public notice was published by Defendant No.1-Nand Kishore in the newspaper Aaj Di Awaz, Jalandhar dated 11.01.2016 specifically referring the document of title i.e. Will dated 09.12.1975. The Appellants have also submitted that their rights as bona fide purchaser have been ignored by the Courts below so much so that the decree is silent as to the fate of consideration paid by them leading to unjust enrichment at the cost and peril. Learned counsel for the appellants further urged that Plaintiffs have approached the courts below with unclean hands as they concealed the material facts from the courts below that Krishna Kumar was earlier married to Bimla Rani and out of this wedlock Nand Kishore and Hem Rani were born. This fact is not disclosed in the suit for possession intentionally with ulterior motive. Lastly, it was asserted that here is no material available on record to prove that the Sushila was the legally wedded wife after the death of Bimla Rani (mother of Defendant no.1). 9. Per contra, learned counsel for the Respondents contends that it was upon Defendants to prove that the Plaintiffs have concealed material facts from the courts below, however, the issue with respect to concealment of facts was not pressed during the time of arguments before Trial Court thus the issue was decided in favour of Plaintiffs. Hence, in view of the issue having attained finality, the Appellants at this stage cannot allege that Petitioners approached the courts below with unclean hands. The Respondents also submitted that the three-Courts below recorded the finding of fact proving the Will executed by Krishna Kumar in favour of second wife Sushila Kumari. The Will dated 09.12.1975 executed by Late Lahori Ram in favour of Defendant no.1 has not been proved. In any case, Krishna Kumar being sole owner alienated his right to Sushila Kumari and no right vests to Defendant no.1 by virtue of the said Will. Therefore, Defendants no.2 & 3 cannot acquire any title from Defendant no.1. Thus, the finding as recorded by threeCourts are neither perverse nor illegal and do not warrant any interference in this appeal. 10. After having heard learned counsel appearing for the parties and on perusal of the record, it is apparent that the Defendants No.2 & 3 are claiming the right in the subject property being bonafide purchasers from Defendant No.1-Nand Kishore by virtue of registered sale deed dated 04.05.2006 after payment of the amount of consideration of Rs.3,40,000/-. Only right, title and interest, which is vested in Defendant No.1 can be transferred to Defendants No.2 & 3. It is not in dispute that Lt. Pt. Lahori Ram was the owner of the subject property who died on 21.10.1977. The Lt. Lahori Ram executed two Wills, first is on 15.11.1957 in favor of Krishna Kumar and another on 09.12.1975 in favor of Defendant No.1-Nand Kishore. As per the findings recorded by three courts below, both the Wills have not been proved, therefore, the right, title and interest vested in Lt. Lahori Ram has not been transferred by virtue of those Wills. In consequence, Krishna Kumar being sole legal heir acquired title in the property which was bequeathed by Will dated 20.10.1993 in favor of Sushila Kumari. The said Will is found proved by the two-Courts and those findings were upheld even by the High Court. The plea taken in appeal with respect to having two other legal heirs of Pt. Lahori Ram in addition to Krishna Kumar was not found merit by the Lower Appellate Court. We are of the view that if upon the subsequent knowledge Defendants discovered that Krishna Kumar was not sole legal heir of Lt. Pt. Lahori Ram, an amendment in the written statement should have been proposed by the Defendants joining other legal heirs of Lt. Pt. Lahori Ram as a party, but no such steps were taken by the Defendants. Thus, the Court found that Krishan Kumar being sole owner inherited subject property of Lt. Pt. Lahori Ram having right to execute Will in favor of Sushila Kumari who resided as a wife and from the said wedlock Plaintiffs were born. The Will executed in favor of Sushila Kumari was found proved. Thus, Sushila Kumari became sole owner on the basis of the proved Will dated 20.10.1993 and Plaintiffs received from her after death. In such circumstances, it is clear that the Defendant No.1 was not having any title and interest in the property, therefore, he cannot pass the title which he does not have. Thus, on the basis of the sale deed executed on 04.05.2006 by Defendant No.1 in favor of Defendants No.2 & 3 they cannot acquire better title than that of Defendant No.1. Further, the Plaintiffs have not per se challenged the Sale Deed dated 04.05.2006 except to contend before the Courts below to ignore the same. Simultaneously, the Defendants have taken the ground of not adjudicating the rights of innocent bonafide purchasers qua the subject property after payment of lawful consideration and carried out fresh construction without any hindrance by anyone. In view of the same, we are not commenting on the validity of Sale Deed and keeping it open for the Appellants to take recourse as permissible under the law.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. After having heard learned counsel appearing for the parties and on perusal of the record, it is apparent that the Defendants No.2 & 3 are claiming the right in the subject property being bonafide purchasers from Defendant No.1-Nand Kishore by virtue of registered sale deed dated 04.05.2006 after payment of the amount of consideration of Rs.3,40,000/-. Only right, title and interest, which is vested in Defendant No.1 can be transferred to Defendants No.2 & 3. It is not in dispute that Lt. Pt. Lahori Ram was the owner of the subject property who died on 21.10.1977. The Lt. Lahori Ram executed two Wills, first is on 15.11.1957 in favor of Krishna Kumar and another on 09.12.1975 in favor of Defendant No.1-Nand Kishore. As per the findings recorded by three courts below, both the Wills have not been proved, therefore, the right, title and interest vested in Lt. Lahori Ram has not been transferred by virtue of those Wills. In consequence, Krishna Kumar being sole legal heir acquired title in the property which was bequeathed by Will dated 20.10.1993 in favor of Sushila Kumari. The said Will is found proved by the two-Courts and those findings were upheld even by the High Court. The plea taken in appeal with respect to having two other legal heirs of Pt. Lahori Ram in addition to Krishna Kumar was not found merit by the Lower Appellate Court. We are of the view that if upon the subsequent knowledge Defendants discovered that Krishna Kumar was not sole legal heir of Lt. Pt. Lahori Ram, an amendment in the written statement should have been proposed by the Defendants joining other legal heirs of Lt. Pt. Lahori Ram as a party, but no such steps were taken by the Defendants. Thus, the Court found that Krishan Kumar being sole owner inherited subject property of Lt. Pt. Lahori Ram having right to execute Will in favor of Sushila Kumari who resided as a wife and from the said wedlock Plaintiffs were born. The Will executed in favor of Sushila Kumari was found proved. Thus, Sushila Kumari became sole owner on the basis of the proved Will dated 20.10.1993 and Plaintiffs received from her after death. In such circumstances, it is clear that the Defendant No.1 was not having any title and interest in the property, therefore, he cannot pass the title which he does not have. Thus, on the basis of the sale deed executed on 04.05.2006 by Defendant No.1 in favor of Defendants No.2 & 3 they cannot acquire better title than that of Defendant No.1. Further, the Plaintiffs have not per se challenged the Sale Deed dated 04.05.2006 except to contend before the Courts below to ignore the same. Simultaneously, the Defendants have taken the ground of not adjudicating the rights of innocent bonafide purchasers qua the subject property after payment of lawful consideration and carried out fresh construction without any hindrance by anyone. In view of the same, we are not commenting on the validity of Sale Deed and keeping it open for the Appellants to take recourse as permissible under the law.