KHAIR DIN Versus ZENAB BIB

Khair Din and Muhammad Din, sons of Allah Rakhah, the plaintiffs, brought a suit for declaration to the effect that they are the exclusive owners in possession of land measuring 11 kanals 2 marlas, comprising Khata Nos. 553/772 to 774 and 654/775, Khasra Nos. 3275, 163, 228, 5402/252 and 5363/552, as entered in the Iamabandi for the year 1956‑57. and the first and the second defendants are not owners of 19/24 In one‑half share of the suit land and that the sale by the said defendants of Khasra No. 5363/252 measuring 4 kanals 7 marlas in favour of defen dant No. 3 Is unjust, void, illegal, and inoperative as against the rights of the plaintiffs. They further prayed for a permanent prohibitory injunction by way of consequential relief restraining the first and the second defendants from alienating or exchanging the suit land in any manner. The suit was resisted on all grounds. The following issues, which fully reflect the pleadings of the parties, were framed by the trial Court

(1) Whether Allah Rakha deceased was governed under custom ? If so, what was that custom ? OPP.

(2) Whether the mutation in favour of Imam Bibi was illegal, void and inoperative ? OPP.

(3) Whether Imam Bibi initiated partition proceedings regarding the suit land and with what effect ? OPP.

(4) Whether Imam Bibi abandoned her rights of ownership .of the suit land in lieu of Rs. 600.00 in a civil suit ? OPP.

(5) Whether the mutation No. 7737 was illegally attested ? OPP.

(6) Whether the defendant No. 3 is the bona fide purchaser, without notice and with consideration ? If so, with what effect ? OPD.

(7) Whether Mst. Imam Bibi was the full owner of the suit property ? OPD.

(8) Whether the sale in favour of defendant No. 3 is void ? OPP.

(9) Whether the present suit is barrel by res judicata ? OPD.

(10) Whether the value of the suit for the purposes of court‑fee and jurisdiction, is incorrect 7 If so, what is the correct value 7 OPD.

(11) Relief.

The first Court dismissed the suit, on the ground that Allah Rakha deceased was governed by custom under which his widow Mst. Imam Bibi inherited J share in the suit land and the third defendant being a bona fide purchaser for value from the ostensible owners, her daughters (the first and second defendants), was protected. The plaintiffs appealed and the learned Addi tional District Judge found that the property originally belonged to Allah Rakha, who left his surviving two sons, the plaintiffs, and a daughter named Mst. Raj Bibi from one wife and two daughters, the first and the second defendants, from Mst. Imam Bibi, the second wife. It was further held that Allah Rakha followed custom and one‑half of his estate (the suit land) was held by his widow Mst. Imam Bibi av a limited owner and not as full owner as found by the trial Judge. On Mst. Imam Bibi's death, after the enforcement of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, succession of Allah Rakha opened qua this one‑half share which devolved under Shariat on the various heirs of Allah Rakha and as such the first and the second defendants inherited 3/8 each of this 1/2 share equivalent to 3/16 share in the suit land. The finding of the trial Court that the impugned transaction of sale was for. consideration and that the transferee has acted in good faith, taking reasonable care to ascertain that the transferee had power to transfer, was affirmed. Accordingly the decree of the trial Court has been modified and the plaintiffs have been granted a declaration to the effect that they are owners in possession of 13/16 share in the suit property, except field No. 5'63/252 transferred in favour of the third defendant, which transfer is protected under section 43 (sic) of the Transfer of Property Act. The suit as against tile third defendant has been dismissed.

2. In this second appeal, the facts of devolution of inheritance ay found by the learned Additional District Judge are not disputed and learned counsel for the plaintiffs has challenged the judgment and decree of the lower appellate Court mainly on the ground that the transfer in favour of the third defendant is not immune, if it is found in excess of the share of the first and the second defendant and that in the absence of evaluation of the share of the various co‑sharers, the observation of the learned Additional District Judge dismissing the suit as against the transferee in its entirety is a misdirection in law. He further contends that such an adjudication could only be made in a suit for partition and these findings have been given prematurely and‑are likely to prejudice the plaintiffs' rights. He has also half‑heartedly argued that the principle of section 43 of the Transfer of Property Act has been wrongly Invoked by the learned Additional District Judge in deciding the case, but when it was pointed out to him that it appears to be a typographical error and as a matter of fact then learned Additional District Judge was referring to section 41 of the Act and not section 43, the argument has not been pressed further.

3. Coming to the main objection, learned counsel argues that the transferors have been wrongly shown as ostensible owners in the revenue records and there has been no express or implied consent of the plaintiffs in this regard. The argu ment has been rightly met by Kh. Mohammad Tufail, Advocate, learned counsel for the transferee, by saying that it is clear from Exh. D. 5, copy of the Jamabandi for the year 1960‑61, that Mst. Zenab Bibi and Mst. Hussain Bibi, daughters of Msr. Imam Bibi, are owners to the extent of 19/48th share and they along with Khair Din and Muhammad Din (plaintiffs) and Mst. Raj Bibi, the real sister of the said plaintiffs, have sold field No. 5402/252 to one Muhammad Shafi. In the same Jamabandi, field No. 5363/252, the parcel of the land in dispute, is shown to be under mortgage with the plaintiffs by Mst. Zatnab Bibi and Mst. Husain 81bi, the transferors. In view of these facts the finding that the transferors have been shown as ostensible owners, if not express at least by implied consent of tae plaintiffs, is not unjustified. Josa Ram and others v. Ghulaman and another (A I R 1936 Lab. 816) is in point.

4. The question of good faith has also been canvassed before me but I find that it is a concurrent finding of fact and learned counsel for the plaintiffs has not been able to show how this finding is in any manner displaced.

5. The principle, on which section 41 of the Transfer of Property Act has been enacted, is based on the following observations of their Lordships of the Judicial Committee in Rarncoomar Koondoo and others v. Macqueen and another ((1872) 40 I A 43 ((Suppl.)):‑

It is a principle of natural equity, which must be universal 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 allows 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 amounts to constructive notice, of the real title ; or that there existed circumstances which ought to have put him, upon an inquiry that, if prosecuted, would have led to a discovery of it."

As a matter of fact the principle is a statutory application of the law of estoppel, which was enuntiated as follows in Gairacross v. Lorminer ((1860) 3 Macq. 827) at p. 829 of the report :‑

If a man, either by words or by conduct, has initiated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they might have abstained he cannot 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.

Admittedly the section is an exception to the rule that a person cannot confer a better title than he has and when once we find that the undermentioned ingredients of the section are present In a given case, the protection to the transferee is complete ;

(a) The transferor is the ostensible owner 1

(b) he is so by the consent, express or Implied, of the real owner ;

(c) the transfer is for consideration 1 and

(d) the transferee has acted in good faith, taking reasonable care to as certain that the transferor had power to transfer.

Learned counsel for defendant No. 3 has also invited my attention to Jagannath Roy v. Radhakanta Roy and others (P L D 1971 Dacca 52), wherein a similar question arose in a suit for partition filed by brother A against his brothers, B, C and D, also impleading E and F who were transferees from B and were in possession since transfer, and it was held that right, title and Interest of E and F due to acquiescence on the part of plaintiff A was protected in the circumstances by principle of section 41 of the Transfer of Property Act and that the plaintiff A, if he had been deceived by the action of B (defendant No. 1), can be compensated from the remaining ancestral property out of the share of defendant No. 1. Learned counsel for the plaintiffs has not cited any authority or shown any rule of law to the contrary. I, therefore, hold, in agreement with the learned lower appellate Court, that the transfer in favour of defendant No. 3 is protected under section 41 of the Transfer of Property Act and the objection that if the value of the parcel of land sold by defendants Nos. 1 and 2 to defendant No. 3 is found in excess of the former's share, the plaintiff's would be entitled to trace the same in the hands of the transferee, is untenable, an acceptance of such a contention would mean negation of the very principle enacted in the said provision of law.

6. For the reasons given above, the appeal fails and is dismissed with costs.

K.B.A. Appeal dismissed