Narasimham, C.J.@mdashThis is a Plaintiffs'' second appeal against the concurrent decisions of the two lower courts dismissing their suit for partition and allotment of their shares in the disputed property.
2. The disputed property consists of a residential house together with the site, in Khata No. 805322, bearing plots Nos. 2896, 2899, 2903 and 3138, in Baripada Town, having a total area of 1 m. 12 gunths and 11 biswas 4 gandas (as described in Schedule B attached to the plaint). It is admitted that this property was purchased by one Sheikh Abdul Rahman a Sunni : Mussalman who was formerly a resident of Midnapore in West Bengal but who subsequently came over to Baripada sometime before 1900 and served in the Police Department of the State of Mayurbhanj. He acquired the property sometime in 1922 and died in 1946, leaving two widows namely Kanim Bibi (since dead) and Kulsum Bibi (Defendant No. 1). Kanim Bibi died sometime after his death and her heir, one Bhikena Bibi is Defendant No. 4. According to the Plaintiffs at the time of Abdur Rahman''s death, his heirs were his consanguine sister Subran Bibi (Plaintiff No. I), and his consignee brother Shafruddin (Defendant No. 5) who were the children of his father Khadder Bux through another wife. Hence it was alleged that under the Muslim law Abdur Rahman''s two widows as well as Plaintiff No. 1 and Defendant No. 5 became his heirs. But for sometime after his death Plaintiff No. 1 and Defendant No. 5 did not interfere with the possession of the two widows who were living in the house. But after death of Kanim Bibi, Defendant No. 1 Kulsum Bibi wanted to remain in exclusive possession of the disputed property in lieu of her dower debt, and Plaintiff No. 1 and Defendant No. 5 also agreed to this arrangement (in a panchayati) without in any way relinquishing their interest in the property. But it was alleged that taking advantage of this conduct of Plaintiff No. 1 and Defendant No. 5 Defendant No. I got her name mutated as the sole successor in interest of Abdur Rahman (see ext. B2) in 1943 and sold a portion of the property, namely, plot No. 3138 on 2-8-1945 to Defendant No. 2 for Rs. 100/-, by a registered sale deed, and that Defendant No. 2 constructed a house on that plot. The remaining three plots namely 2896, 2899 and 2903 were sold by Defendant No. 1 to Defendant No. 3 on 21st September 1956 by another registered sale deed. Defendant No. 6 is a subsequent purchaser from Defendant No. 2 of a portion of that property. Defendant No. 5 who was one of the co-heirs was said to have sold his interest to Plaintiff No. 2 who is none else but the own son of Plaintiff No. 1.
3. Thus the case of the Plaintiffs was that as the heirs r of Abdur Rahman they were both entitled to a share of the disputed property and that their right was not in any way affected by the possession of Defendant No. 1 over the same sometime after the death of Abdur Rahman and the subsequent alienations made by her in favour of Defendant No. 2 and Defendant No. 3.
4. The Respondent denied the relationship of the Plaintiffs and Defendant No. 5 to Abdur Rahman as alleged and stated that they were utter strangers and not his heirs. They further alleged that the alienations made in favour of Defendants 2 and 3 were protected u/s 41 of the Transfer of Property Act.
5. Both the courts have concurrently held that the relationship of the parties to Abdur Rahman as stated by Plaintiff No. 1 and Defendant No. 5 was correct and that they were co-sharers of Abdul Rahman''s properties along with the widow (Defendant No. 1), but they dismissed the Plaintiffs'' suit solely on the ground that Section 41 of the Transfer of Property Act afforded full protection to the alienees namely Defendants 2 and 3. The trial court was inclined to accept the case of the Plaintiffs that Defendant No. 1 was allowed to possess the properties in lieu of the dower debt. The appellate court, however was not inclined to accept this story though he did not come to a final decision on this point, holding that in any case the alienations were protected u/s 41 of the Transfer of Property Act.
6. The sole question for the consideration in this second appeal therefore is whether, on the facts found the courts were justified in holding that the two impugned alienations were protected by Section 41 of the Transfer of Property Act.
7. The law regarding the burden of proof in cases of this type has been laid down in
8. It is also settled that what is "reasonable care" for the purpose of Section 4l of the Transfer of Property Act depends on the facts and circumstances of each case and no hard and fast rule can be bid down-see AIR 1949 Cal 666 and
In cases of this kind the circumstances which should prompt an enquiry may be infinitely varied; but without laying down any general rule it may be said that they must be of such a specific character that the Court can place its finger upon them and say that upon such facts some particular enquiry ought to have been made. It is not enough to generally assert that enquiries should be made or that a prudent man would make enquiries.
9. I shall now deal with the two alienations separately.
10. Alienation by Defendant No. 1 in favour of Defendant No. 2:
This alienation was said to have been made in 1945 about 5 years after the death of Abdur Rahman. Defendant No. 2 was then said to be a youth aged about 23 years, but his uncle Purna Chandra Ram (d.w. 1) who was looking after his affairs and who negotiated the purchase and stated that he made enquiries from the local Muss 801 mans in Baripada town and was satisfied that Defendant No. 1 was the owner of the properties. She was admittedly in possession of the properties of her husband after his death and mutation had also been effected in her name in 1943 without any objection. This witness stated that even as a young boy he had seen Abdur Rahman living in Baripada town. Mr. Sinha for the Appellants however urged that this witness ought to have made further enquiries as to whether Abdur Rahman had left any heirs apart from his widow (Defendant No. 1) and that for the purpose of ascertaining that fact he ought to have gone to Midnapore the original home of Abdur Rahman, and in the absence of any such enquiry having been made it must be held that the purchaser did not take ''reasonable care'' as required by Section 41 of the Transfer of Property Act.
11. There might have been some force in this contention if there was any circumstance to create any doubt in the mind of the purchaser about the title of Abdur Rahman''s widow. The mere fact that Abdur Rahman had originally belonged to Midnapore, from where he came to Baripada, is not sufficient to show that every purchaser of property from her must make an elaborate research in his original home in Midnapore, with a view to assertain who were his other heirs. It is true that if Abdur Rahman had come to Baripada recently there may be some justification for making such an enquiry in his original home in Midnapore. But Plaintiff No. 1 Subran Bibi herself (p. w. 11) stated that Abdur Rahman came to Baripada about 71 or 72 years ago, i.e. long before the commencement of the present century. He acquired the property in 1922 and was in possession of the same till his death in 1940. None objected in his widow''s (Defendant No. 1''s) name being mutated in the Revenue papers though Plaintiff No. 1 being a resident of Baripada town would ordinarily be expected to have insisted on her name also being mutated as an heir of Abdur Rahman. This was not done. But it was urged that she was a Purdanashin lady who might 1 not have been aware of what was going on. But she has a grown up son (Plaintiff No. 2) who was aged 31 years at the time of the filing of the suit in 1957. Hence at the time of the mutation of the name of Defendant No. 1 in place of Abdur Rahman in 1943, Plaintiff No. 2 must have been a youth aged 17 years. With the assistance of such a grown up boy, Plaintiff No. 1 should not have allowed the name of Defendant No. 1 alone to be mutated. Even if we accept the Plaintiff''s story that Defendant No. 1 was allowed to remain in possession of the properties in lieu of dower debt that could be no reason for not insisting on the names of the other heirs of Abdur Rahman being mutated along with Defendant No. 1 on the Revenue papers.
12. As pointed out in Mullah''s Mohammedan Law, 15th edition, Page 252 mere possession by the widow of her husband''s property in lieu of dower debt does not give her title to the property and that title vests in all the heirs including the widow. Hence Plaintiff No. 1 and Defendant No. 6 should have taken steps to get their names jointly recorded along with that of Defendant No. 1 in the Revenue papers at Baripada after the death of Abdur Rahman. They both admitted that three years after the death of Abdur Rahman they insisted on partition of their shares and then a panchayati was convened where they were persuaded to agree to Defendant No. 1 remaining in possession in lieu of her dower debt. But they have no explanation to offer as to why they did not apply for mutation of their names also, even though they allowed Defendant No. 1 to remain in possession so that their title may not be in dispute. This conduct of theirs shows clearly that by implied consent they allowed Defendant No. 1 to be the ostensible owner of the property.
13. The facts that are thus clearly established are that a Mussalman whose original home was in Midnapore in West Bengal had come away to Baripada and stayed there for about 50 years, acquired some properties in 1922 and died in 1940. His widow was allowed to remain in possession of the properties by his other heirs, one of whom was also a resident of Baripada town. She also had a grown up son. Yet none objected to the mutation of the name of Defendant No. 1 alone in place of Abdur Rahman. The purchaser from Defendant No. 1 also made careful enquiries from the local Mussalmans and was satisfied that there was no other co-sharer of the property except Defendant No. 1. Then the purchase was made in 1945. Under these circumstances, bearing in mind the principles mentioned above, I think the lower courts were justified in holding that the purchaser was entitled to the benefit of Section 41 of the Transfer of Property Act. The mere fact that Abdur Rahman himself came from Midnapore in West Bengal long prior to his settling down at Baripada or the fact that he, being a Mussalman might have left several heirs, is not such a circumstance as to require the purchaser to make enquires from Midnapore having regard to the fact that Abdur Rahman left Midnapore 50 years before and had come away to Baripada and also the fact that another heir of his was staying in Baripada town and did not raise any objection to his widows remaining in possession of their properties 803 full owner even after his death.
14. Alienation by Defendant No. 1 in favour of Defendant No. 3:
The case of Defendant No. 3 is on an even stronger footing. The first alienation was made in 1945 by Defendant No. 1 and the alienee (Defendant No. 2) constructed a pucca house and was living in it openly. The other heir (Plaintiff No. 1) though living in the same town never raised any objection to this, even though she had the assistance of her grown up son (Plaintiff No. 2).
Hence, in 1956, when the second alienation took place, the alienee (Defendant No. 3) was entitled to assume that Defendant, No. 1 was the full owner of the property. It will be unreasonable to expect that he ought to have gone to Midnapore and made an elaborate search with a view to find out if Abdur Rahman had left any other heirs.
15. This case is very similar to the case reported in 63 Indian Cases 125 where it was held that where a Muslim widow was allowed to remain in sale possession of the properties of her husband, with the implied consent of her husband''s heirs and was also entered as the Bole owner in the public records a transfer by her in good faith and for valuable consideration to a third party, would be protected by Section 41 of the Transfer of Property Act.
For the aforesaid reasons, the judgment and decree of the two lower courts are maintained and the appeal is dismissed with costs.
