Kamla Sahai, J.@mdashThis appeal by the first three defendants arises out of a suit for declaration of title to, and confirmation of possession, or, in the alternative, recovery pf possession, over 3.28 acres of land under plot No. 1279 of village Rehian.
2. The admitted facts of the case are as follows. Khaderu Singh was the karta of a joint Hindu family. Dularo Kuer was his wife, and Mst. Rajbansi Kuer, defendant No. 6, was his daughter-in-law. The appellant or their ancestors were coparceners of the family. The disputed land was recorded in the survey records under khata No. 322 in the names of Bodhan and Mahabir, sons of Ajablal (who will henceforth be referred to as the Lalas). It was also recorded under shikmi khata No. 9 in the names of Khaderu and his brothers as shikmidars. On 21-5-1929, and 12-1-1930, the Lalas executed two sale deeds (Exs. 1(d) and 1(f)) in respect of the disputed land in favour of Raj-bansi Kuer. In 1944, Dularo Kuer instituted Title Suit No. 61 of 1944/10 of 1946 against the appellants for partition of the joint family properties by metes and bounds. One of the questions which the present appellants raised in that suit was that the land in dispute in this case was that of a joint family property. Issue No. 3 was struck in that connection, and the finding of the Addl. Subordinate Judge, who tried that suit, was that the land was joint family property. A certified copy of the judgment, dated 27-4-1946, is Ex. C.
3. It is also common ground that Rajbansi executed three sale deeds (Exs. 1, l(a) and 1 (b)) on the 4th February, 1947, in respect of the disputed land in favour of the plaintiffs for a total consideration of Rs. 3,700/-. The endorsements of the Sub Registrar on these three documents show that the consideration moneys for execution of the three sale deeds were paid in his presence.
4. The plaintiffs'' case is that the defendants'' ancestors were in possession of the disputed land for only about two or three years before the last survey operation. They were, therelore, recorded as shikmidars; but they gave up possession only about, two or three years after the survey operation was over. Ajablal''s sons came into khas possession again. Thereafter, they sold the land to Mt. Rajbansi Kuer, who was then admittedly a widow, under two sale deeds (Exs. 1(d) and 1(f)). The consideration was paid by Rajbansi herself, and she, therefore, came to be the real owner of the land in question., On the other hand, defendant No. 1, who alone contested the suit, alleges that his ancestors were in possession of the disputed land as shikmidars from before the last survey operation, and that they never gave up possession Khaderu, who was the karta of the family, purchased the land out of the joint family fund in the benami name of Mt. Rajbansi Kuer. The joint family continued to remain in possession, and, by executing the three sale deeds (Exs. 1, l(a) and l(b)), Rajbansi, who had no title to the disputed land, has not conveyed any right or title to the plaintiffs.
5. The Munsif, 2nd Court of Buxar, who tried the suit, held that Rajbansi was not the benamidar for the family but was the real owner of the land, and that she had conveyed good title to the plaintiffs by virtue of the three sale deeds. He, accordingly, decreed the suit. On appeal, the 2nd Addl. Subordinate Judge of Arrah, by his judgment dated 10-1-1953, reversed the Munsif''s decision. He held, among other things, that Khaderu and his brothers continued to remain in possession of the land in question as shikmidars, that Rajbansi Kuer had no separate fund of her own, that the defendants had succeeded in proving that consideration for the sale deeds (Exs. l(d) and l(f)) was paid by Khaderu Singh, who was the karta of the joint family consisting of himself, his brothers and his nephews, and that it was not established that Rajbansi Kuer came into possession of the land.
Even though the plaintiffs produced the sale deeds (Exs. 1(d) and 1(f)) from their possession, the learned Subordinate Judge held, on the basis of the findings which I have just mentioned, that the disputed land was the property of the joint family, and that Rajbansi Kuer was a more benamidar. He did not accept an argument advanced on behalf of the plaintiffs that they were protected by Section 41 of the Transfer of Property Act because he thought that, unless they proved that the real owners of the property gave their consent to the transfer in their favour, they were not entitled to protection under that section. He, therefore, allowed the appeal, and dismissed the suit.
6. The plaintiffs filed Second Appeal No. 142 of 1953 in this Court against the dismissal of their suit by the lower appellate Court. Raj Kishora Prasad J., disposed of that appeal by his judgment dated 11-12-1957 (Since reported in
"The words used in Section 41 of the Act are clear enough to indicate that the section does not require that the transaction to be binding on the real owner must have been entered into by the ostensible owner with the consent of the real owner. For the application of this section, it is essential no doubt that with the consent of the true owner the possession of the ostensible owner must continue up to the date of the transfer; but it is not at all necessary that the transfer itself should be with the consent of the owner." He was of the opinion that the lower appellate court had not considered the question whether the plaintiffs had acted in good faith and had taken requisite care to ascertain, within the meaning of the proviso to Section 41, that Rajbansi had power to make the transfer. He, theretore, remanded the case to the Court of appeal below tor determination whether the plaintiffs were entitled to seek the protection u/s 41 of the Act. Shri A. K. P. Rukhaiyar, who was the 2nd Addl. Subordinate Judge of Arrah when the appeal came up for heating after remand, came to the conclusion that the plaintiffs had acted in good faith and had taken reasonable care to ascertain that their transferor had power to transfer the disputed land, and that they were, accordingly, entitled to the protection provided u/s 41. In view of this finding, he dismissed the appeal by his judgment: dated 27-3-1958. Hence, the first three defendants have come up to this Court in second appeal.
7. The finding that Rajbansi Kuer was the benarnidar for the joint family was affirmed by this Court. It would not be and has not been challenged before me. Learned counsel, who appeared before me on behalf of both sides, have accepted as correct the conclusion of Raj Kishore Prasad, J., and the interpretation of Section 41. of the Transfer of Property Act which I have quoted. The only point which arises for consideration, therefore, is whether the plaintiffs acted in good faith and took reasonable care as required by the proviso to Section 41 which reads:
"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 authorised to make it:
Provided that the transferee, after taking reasonable care to make the transfer, has acted in good faith."
This section provides an exception to the general rule that a transferor cannot confer upon his transferee a better title than he Himself has. The conditions which must be fulfilled before a real owner can be deprived of his rights by the act of the ostensible owner are, according to this section, as follows:
1. A person must be the ostensible owner of a property with the consent, express or implied, of the real owner.
2. The transferee must purchase the property from the ostensible owner for consideration.
3. Before taking the transfer, the transferee must take reasonable care to ascertain that the transferor has power to make the transfer.
4. The transferee must act in good faith.
8. The care required of a transferee under the third condition mentioned above must be the kind of care which an ordinary man of business is expected to take. If the ostensible owner is in possession of the property and he also produces the title deed, the transferee cannot be expected to make any searching enquiry in the absence of any ground for suspicion that the transferor may not be the real owner. The standard and nature of the necessary enquiry by the transferee must, therefore, vary according to the different circumstances of each case. I may usefully quote the observations of Sir Montague E. Smith, who delivered the judgment of their Lordships of the Judicial Committee in Ramcoomar Koondoo v. McQueen, (1872) IndApp Sup 40 which are under:
"It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allowed the other to hold himself out shall not be permitted to recover upon his secret title unless he can overthrow that of the purchaser by showing, either that he had direct notice, or something which amount to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an enquiry that, if prosecuted, would have led to a discovery of it." His Lordship further states:
"In cases of this kind the circumstances which should prompt 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 assert generally that enquiries should be made or that a prudent man would make enquiries ......"
The principle laid down in this case is the foundation on which Section 41 of the Transfer of Property Act is based.
9. I may also refer to the case of Khwaja Muhammad Khan v. Muhammad Ibrahim, ILR 26 All 490 In that case, the plaintiff purchased a property in the name of his son, Rustam Ali, and subsequently, a house was built on it. Rustam Ali''s name was recorded as tenant, and he appeared to have been in occupation of it at the time when he mortgaged the property with the house to the defendants. Their Lordships said:
"......We think that where a person is found In possession of property, is recorded as owner, and holds the title deeds of the property and deals with a third party in respect of it, there is nothing to suggest a want of good faith in such third party in dealing with him in respect of the property. We do not think that the defendants respondents were called upon under the circumstances to communicate with the father of the mortgagor and inquire from him as to the title."
10. It is manifest that the transferee need not make a very detailed enquiry in order that he may be said to have taken reasonable care unless there is some circumstance or clue which should lead him as an ordinary man of business to make a full enquiry so as to satisfy himself with a reasonable amount of certainty that his transferor is entitled to make the transfer.
11. The learned Subordinate Judge has based his finding that the plaintiffs are entitled to protection u/s 41 on the following circumstances:
1. Rajbansi Kuer was in possession of the original sale deeds (Exs. l(d) and l(f)), and the plaintiffs have filed those deeds in the present suit.
2. Rajbansi Kuer wag mutated in the landlord''s sherista, and rent receipts were issued in her name.
3. The plaintiffs paid consideration for the sale deeds Exs. 1, l(a) and l(b) executed by Rajbansi in their favour.
12. On the above facts, he has first observed that the plaintiffs ''''acted in good faith and took reasonable care to ascertain that their transferor had power to transfer the disputed lands", and has next observed that "the transfer in favour of the plaintiffs from the ostentible owner, Rajbansi Kuer, defendant No. 6, was made with the consent, express or implied, of the defendants-appellants". These two observations show that the learned Subordinate Judge was not quite clear in his mind as to the point which he had to determine. If Rajbansi Kuer transferred the disputed land to the plaintiffs with the consent of the defendants, express or implied, it would have been a case of estoppel, and the defendants would have been estopped from challenging the title of Rajbansi Kuer to make the transfer: it would not have been a case where the provisions of Section 41 could be attracted.
In making the first observation, the learned Subordinate Judge has merely quoted the words of the proviso to Section 41. Appearing on behalf of the appellants, Mr. P. R. Das has first urged that the learned Subordinate Judge has not at all directed his attention to the question whether the plaintiffs made a reasonable enquiry to ascertain the title of their transferor, Rajbansi Kuer, to make the transfer. The second point which he has put forward is that a transferee cannot be said to have taken reasonable care in making an enquiry as to his transferor''s power unless he makes proper enquiry as to who paid the consideration.
13. In my judgment, there is some substance in his first argument, but his second point cannot be accepted. In support of the second point, he has referred to the following sentence in Mayne''s Hindu Law and Usage, 11th Edn. at p. 955:
"The rule is well established that in all cases of asserted benami, the best, though not the only, criterion is to ascertain from whose funds the purchase money proceeded".
I entirely agree with this principle; but it cannot be laid down that, in every case, the transieree must make an enquiry as to who paid the consideration money for the title deed in his transferor''s favour before he can seek protection u/s 41 of the Transfer of Property Act. There may be circumstances which may satisfy any ordinary man of business that the transferor is the real owner. In such a case, it will not be necessary for a transferee to make an enquiry as to the payment of consideration. Indeed, such an enquiry may, in most cases, be fruitless because the transferee, not knowing that any one else is the real owner, will enquire from his transferor who is not likely to tell him that some one else paid the consideration for the transfer in his or her favour.
14. The first point urged by Mr. Das may be accepted with some modification. It is manifest that the learned Subordinate Judge has not, in this case, considered the point which really arose for his consideration, viz., whether there are circumstances in this case which should have put the plaintiffs upon their guard as to make them feel the necessity of a careful enquiry. It does appear that Rajbansi Kuer was in possession of the title deeds; but that circumstance alone could not have satisfied the plaintiffs about her title. She does not appear to have made over any rent receipt to the plaintiffs because they have not produced any. The rent receipts (Exs. 2 series) were granted by the landlords to the plaintiffs themselves after execution of the sale deeds (Exs. 1, l(a) and l(b)) in their favour.
The mere fact that Rajbansi Kuer''s name was recorded in the landlord''s sherista was of no consequence, because, the sale deeds (Exs. 1 (d) and 1(f)) being in her favour, Khaderu and the joint family must have got her name recorded in the landlord''s sherista for the same purpose for which they took the sale deeds in her benami name. It is true that the plaintiffs appear to have paid consideration moneys for execution of the sale deeds (Exs. 1, 1(a) and 1(b)) in the presence of the Sub Registrar; but that only shows that the plaintiffs made the pur. chase for value, and not that they acted in good faith or that they exercised reasonable care to ascertain their transferor''s power to make the transfer. The facts mentioned by the learned Subordinate Judge do not, therefore, support his conclusion that the proviso to Section 41 is attracted in this case.
15. There are several circumstances in this case which should have made the plaintiffs careful. Firstly, the plaintiffs and the defendants are residents of the same village in which the disputed land lies. Secondly, the plaintiffs knew of the partition suit (Title Suit No. 61 of 1944/10 of 1946) between Dularo Kuer on one side and the defendants on the other because Ramjanam Ahir plaintiff No. 1, was examined as a witness in that suit on behalf of Dularo Kuer. A certified copy of his deposition is Ex. B(l). Thirdly, they must have known that Khaderu and members of the joint family were in possession of the disputed land as shikmidars until, at least, the Lalas executed the sale deeds (Exs. l(d) and 1(f)) in favour of Rajbansi Kuer. Fourthly, the learned Subordinate Judge has observed that the defendants have not filed any paper to show that they were ever in possession of the disputed land themselves but he has not found that Rajbansi ever came into possession.
Jamuna Ahir, plaintiff No. 2 who has been examined in this case as P. W. 7, has stated that the plaintiffs used to cultivate the disputed land as bataidars of Rajbansi every year but, as the learned Subordinate Judge has himself pointed out, the plaintiffs did not mention this fact in their plaint. The evidence of Jamuna on the point of batai cultivation by the plaintiffs cannot be accepted. There is, therefore, nothing reliable on the record to show that Rajbansi Kuer exercised any act of possession upon the disputed land. These facts should have impelled the plaintiffs to make a proper enquiry, and the learned Subordinate Judge or the earned counsel for the plaintiffs-respondents has not pointed out any evidence to show that they made such an enquiry. In Nageshwar Prasad Pandey v. Raja Pateshri Partab Narain Singb AIR 1915 PC 103 the mortgagee''s claim to be a bona fide transferee was repelled on the grounds that he was lending money to the family for a long time, that he resided in same locality, and that he was apparently acquainted with all the circumstances of the family.
If the plaintiffs had, in the present ease, only tried to find out the result of the partition suit, they would have learnt that the defendants had claimed the land in dispute in this case to be a joint family property, and the Court had accepted that claim. I am satisfied, therefore, that the plaintiffs did not take reasonable care to make necessary enquiries. Besides, the fact that the decree in the partition suit was passed on 27-4-1946, and the plaintiffs purchased the disputed land, which had been held in that suit to be joint family property, on 4-2-1947, makes it doubtful that they acted in good faith.
16. In the facts and circumstances mentioned above, I hold that the proviso to Section 41 has not been complied with and that the plaintiffs are not entitled to protection under it. I, therefore, allow the appeal, set aside the judgments and decrees of the Courts below, and dismiss the suit. The plaintiffs will pay to the appellants the costs of the trial Court, the lower appellate Court after remand and this Court in this appeal.
