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2007 DIGILAW 1437 (MAD)

S. Uttamchand v. T. M. Devan & Another

2007-04-23

S.RAJESWARAN

body2007
Judgment :- Common Order: These Revision Petitions have been filed against the order dated 6. 1996, of the District Munsif, Ponneri, made in E.A.No.469/1992 in E.P.No.25/1992 in O.S.No.918/1975 and against the order dated 6. 1996 of the District Munsif, Ponneri, made in E.P.No.25 of 1992 in O.S.No.918/1975. 2. The brief facts which are necessary for the purpose of disposing of the above two Civil Revision Petitions are as under: 3. The 1st respondent herein was originally a lessee under the father of 2nd respondent herein in respect of the property namely, vacant land measuring about 1-1/2 grounds abutting Thiruvottiyur High Road in S.No.237/42, situate within the Thiruvottiyur municipal limits, vide lease deed dated 110. 1968. Pursuant to a family partition deed dated 30.9.1970, the above said property was allotted to 2nd respondent. 2nd respondent filed a suit in O.S.No.918/1975 against 1st respondent for a decree directing 1st respondent to put 2nd respondent in vacant possession of the suit schedule property. The trial court by judgment and decree dated 23. 1978 decreed the suit, against which 1st respondent filed an appeal in A.S.No.49/1985. During the pendency of appeal, 2nd respondent entered into a registered sale agreement with the revision petitioner for the suit schedule property in O.S.No.918/1975. Subsequently, while the A.S.No.49/1985 was still pending, 2nd respondent sold the property to revision petitioner by executing the sale deed dated 22. 1984. In that sale deed it was clearly mentioned that revision petitioner is entitled to continue the proceedings of the suit in O.S.No.918/1975, all applications and appeals and to take necessary steps in execution proceedings. The appeal was dismissed on 211. 1986, against which 1st respondent filed S.A.No.901/1987 before this court. When the Second Appeal was pending, 2nd respondent sold the property to 1st respondent by sale deed dated 19. 1991 and on the basis of the sale deed, 1st respondent sought permission from this court to withdraw the appeal and by order dated 111. 1991, S.A.No.901/1987 was dismissed as withdrawn. The C.M.P., filed by the revision petitioner in C.M.P.No.14671/1991 to implead himself as 2nd respondent in the Second appeal was also dismissed by this court on 111. 1991 in view of the dismissal of the main appeal itself. 4. The revision petitioner filed E.P.No.25/1992 in O.S.No.918/1975 to execute the decree dated 23. 1978. In E.P.No.25/1992, the 1st respondent herein filed E.A.No.469/1992 under Sec.47 C.P.C., praying that the decree dated 23. 1991 in view of the dismissal of the main appeal itself. 4. The revision petitioner filed E.P.No.25/1992 in O.S.No.918/1975 to execute the decree dated 23. 1978. In E.P.No.25/1992, the 1st respondent herein filed E.A.No.469/1992 under Sec.47 C.P.C., praying that the decree dated 23. 1978 made in O.S.No.918/1975 is not executable against him, the sale deed dated 19. 1991 executed by 2nd respondent in his favour is binding on the revision petitioner and the sale deed dated 22. 1984 executed by the 2nd respondent in favour of the revision petitioner is void and unenforceable. The executing court by order dated 6. 1996 allowed the Sec.47 Application and consequently dismissed E.P.No.25/1992 and aggrieved by the same the above revision petitions have been filed. 5. It is the case of the 1st respondent herein before the executing court that he was a tenant under 2nd respondents father and when the suit filed by 2nd respondent was pending, in S.A.No.901/1987, 2nd respondent offered to sell the land and believing honestly that the offer was bonafide, he purchased the property by sale deed dated 19. 1991 registered as document No.3419/1991 at Sub-Registrar Office, Thiruvottiyur. The 1st respondent contended that the fact of the revision petitioner having purchased the property from 2nd respondent on 22. 1984 was never brought to the notice of the appellate court at any point of time. Even in S.A.No.901/1987, 2nd respondent alone filed vakalat and contested the appeal. Therefore according to 1st respondent the sale deed dated 22. 1984 was never acted upon. 1st respondent has also drawn support from Sec.41 of the Transfer of Property Act as according to 1st respondent, the revision petitioner set up 2nd respondent as the ostensible owner of the property. It is the further case of the 1st respondent before the executing court that only after obtaining Encumbrance Certificate and on the basis of the pleadings in O.S.No.918/1975, A.S.No.49/1985 and S.A.No.901/1987, he purchased the property in good faith. 6. It is the further case of the 1st respondent before the executing court that only after obtaining Encumbrance Certificate and on the basis of the pleadings in O.S.No.918/1975, A.S.No.49/1985 and S.A.No.901/1987, he purchased the property in good faith. 6. Even though the property purchased by the revision petitioner measuring an extent of 3200 sq.ft., in S.F.No.237/42 and the property purchased by 1st respondent measuring an extent of 3320 sq.ft., in S.No.78 (New S.No.78/1 Part), the executing court found that the property is one and the same and by the operation of Sec.41 of the Transfer of Property Act, 1882, hereinafter called the Act, the revision petitioner impliedly consented to the 2nd respondent being the ostensible owner of the property and in such circumstances the sale deed executed in favour of 1st respondent who acted in good faith and who is a bonafide purchaser, the revision petitioner could not question the sale deed dated 19. 1991 executed in favour of 1st respondent. Thus the executing court allowed the Sec.47 application and dismissed the execution petition. 7. Heard the learned counsel for the revision petitioner and the learned counsel for the 1st respondent. I have also perused the documents filed and the judgments referred to by them in support of their submissions. 8. The learned counsel for the revision petitioner submitted that the executing court erred in law in allowing E.A.No.469/1992 in E.P.No.25/1992 by relying on Sec.41 of the Transfer of Property Act, as, in this case, Sec.41 will not apply at all. The learned counsel relied on the following decisions in support of his submissions: 1) AIR 1979 S.C.1066 (Zila Singh v. Hazari) 2) ILR 30 Mad.397 (Karuppa Goundan alias Thoppala Goundan v. Periathambi Goundan) 3) 1980(II) M.L.J. 534 (Nagalinga Nadar v. Mehrunisa Begum) 9. Per contra, the learned counsel for the 1st respondent submitted that in this case it was established that Sec.41 of the Act would apply as the revision petitioner by his express conduct made the 1st respondent to believe that the 2nd respondent is the owner of the property and in such circumstances the transfer effected by the 2nd respondent is not voidable and therefore the revision petitioner could not execute the decree on the basis of the sale deed dated 22. 1984. 1984. He relied on the following decisions in support of his submissions: 1) AIR 1963 S.C. 1917 (Gurbaksh Singh v. Nikka Singh) 2) AIR 1979 S.C. 553 (Syed Abdul Khader v. Rami Reddy) 3) 2002(4) SCC 460 (Zorawar Singh v. Sarwan Singh) 10. I have considered the rival submissions with regard to facts and citations. 11. First let me consider the decisions cited by both the learned counsel to cull out the legal principles enunciated thereon. .12. In ILR 30 Mad. 397 (cited supra), a Division Bench of this court held that where there is sufficient description set forth of the premises by giving a particular name of the field or otherwise, a false description added thereto may be rejected as the addition of a .wrong Survey Number did not invalidate the plaintiffs claim, the land being otherwise sufficiently identified. 13. In AIR 1979 S.C. 1066 (cited supra), the Honble Supreme Court held that if the sale deed in respect of land on its proper construction would show that decree itself was assigned, obviously the application for execution would be maintainable under Order 21 Rule 16, Civil Procedure Code. 14. In 1980(II) M.L.J. 534 (cited supra), a Division Bench of this court held that it was the duty of the litigant to have made an inspection book I as provided for under Sec.57 of the Registration Act and also to have obtained a nominal index with reference to the transaction entered into by the parties in relation to the mortgaged property and having failed to do so, it was not open to claim merely on the strength of Encumbrance Certificate obtained in giving incorrect boundaries that he was a bonafide purchaser for a value without notice. 15. In AIR 1963 S.C. 1917 (cited supra), the Honble Supreme court held that the general rule is that a person cannot confer a better title than he has, but there is an exception to this rule which is Sec.41 of the Act. Being an exception, the onus is certainly on the transferee to show that the transferor was the ostensible owner of the property and that he had, after taking a reasonable care to ascertain that the transferor has the power to make the transfer, acted in good faith. 16. Being an exception, the onus is certainly on the transferee to show that the transferor was the ostensible owner of the property and that he had, after taking a reasonable care to ascertain that the transferor has the power to make the transfer, acted in good faith. 16. In AIR 1979 S.C.553 (cited supra), the Honble Supreme court held that Sec.41 of the Transfer of Property Act provides that, where with the consent of the person 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. .17. In the above decision, the father of the plaintiff throughout acted in relation to others as the owner of the property though the plaintiff was the real owner of the property. The father of the plaintiff executed agreement deed to sell the land and the transaction was completed in the presence of the plaintiff and the consideration was put in the hands of the plaintiff. In such circumstances, the Supreme Court categorically held that the plaintiff is certainly estopped from contesting the validity of the sale on the ground that the father had no authority to sell the land or on the ground that though his father entered into agreement, his constituted attorney acted as a mere rubber stamp. 18. In 2002(4) SCC 460 (cited supra), the Honble Supreme Court held that the burden of proving the fact that one is a bonafide purchaser for value without notice would lie on the person who asserts the same. 19. In the light of the above pronouncements, now let me consider the facts of the present case to find out whether the 1st respondent is a bonafide purchaser without notice and whether Sec.41 of the Transfer of Property Act will come to his rescue to make the decree granted in O.S.No.918/1975 as inexecutable. .20. The facts are not in dispute. 2nd respondent filed a suit in O.S.No.918/1975 against 1st respondent who was a tenant even when her father was very much alive for a decree directing 1st respondent to put 2nd respondent in vacant possession of the schedule mentioned property. The suit schedule property is vacant land measuring about 1-1/2 grounds in S.No.237/42 situated within the Thiruvottiyur municipal limits. 2nd respondent filed a suit in O.S.No.918/1975 against 1st respondent who was a tenant even when her father was very much alive for a decree directing 1st respondent to put 2nd respondent in vacant possession of the schedule mentioned property. The suit schedule property is vacant land measuring about 1-1/2 grounds in S.No.237/42 situated within the Thiruvottiyur municipal limits. It is the specific case of 2nd respondent that after the death of her father, in a family partition, the suit schedule property has been allotted to her. The suit was decreed by the trial court on 23. 1978. Thereafter, a sale agreement was entered into between the revision petitioner and 2nd respondent on 7. 1978 for selling the very same suit schedule property. In that sale agreement dated 7. 78, which is registered as document No.596/1978, it was specifically stated that the suit filed in O.S.No.918/1975 ended in favour of 2nd respondent and the revision petitioner should wait till the appeal, if any, filed by 1st respondent. It is also not in dispute that appeal has been filed by 1st respondent in A.S.No.49/1985 and the same was dismissed by the first appellate court on 211. 1986. When the appeal was pending before the first appellate court, a sale deed itself was executed by 2nd respondent in favour of the revision petitioner for the very same suit schedule property, wherein it was specifically stated that the revision petitioner is entitled to continue the suit proceedings, all applications, appeals and to take necessary steps including execution proceedings. Therefore it is very clear that on 22. 1984 itself, the revision petitioner became the owner of the suit schedule property and he is also entitled to execute the decree also. At he same time, the revision petitioner did not file any application before the first appellate court informing the execution of the sale deed dated 22. 1984. After the dismissal of A.S.No.49/1985, S.A.No.901/1987 was filed by 1st respondent against 2nd respondent. When the Second Appeal was pending before this court, on 19. 1991, 2nd respondent entered into a sale deed with 1st respondent for the property situated in Old S.No.78, New S.No.78/1 situated at Thiruvottiyur municipality limit. 1984. After the dismissal of A.S.No.49/1985, S.A.No.901/1987 was filed by 1st respondent against 2nd respondent. When the Second Appeal was pending before this court, on 19. 1991, 2nd respondent entered into a sale deed with 1st respondent for the property situated in Old S.No.78, New S.No.78/1 situated at Thiruvottiyur municipality limit. In that sale deed it was specifically stated that with regard to the property contained in the sale deed, court proceedings were pending in the High court in Second Appeal and to come for a compromised settlement, the sale deed has been executed. Therefore 1st respondent sought permission to withdraw S.A.No.901/1987 and this court by order dated 111. 1991 dismissed the Second appeal as withdrawn. It is also not in dispute that the revision petitioner filed a petition in C.M.P.No.14671/1991 to implead himself in S.A.No.901/1987 and this court on 111. 1991 dismissed the same as infructuous in view of the dismissal of the main Second appeal itself. 21. The revision petitioner thereafter filed E.P.No.25/1992 to execute the decree granted in O.S.No.918/1975 and the same was resisted by 1st respondent by filing E.A.No.469/1992. The main contention of 1st respondent is that the sale deed dated 19. 9.91 is valid and binding on the revision petitioner and the sale deed dated 22. 1984 is void and unenforceable. The executing court by relying on Sec.41 of the Act held that the revision petitioner could not now question the sale deed dated 19. 91 as all along he kept quiet even though he purchased the property on 22. 1984 itself. Consequently, it allowed Sec.47 Application filed in E.A.No.469/1992 and dismissed E.P.No.25/1992. 22. In view of the above admitted facts, the question that arises for consideration is that whether the revision petitioner can question the sale deed dated 19. 1991 by his conduct and whether Sec.41 of the Transfer of Property Act will come to the rescue of 1st respondent to validate the sale deed dated 19. 1991. 23. For better appreciation, it is useful to refer to Sec.41 of the Transfer of Property Act, which reads as under: "41. 1991 by his conduct and whether Sec.41 of the Transfer of Property Act will come to the rescue of 1st respondent to validate the sale deed dated 19. 1991. 23. For better appreciation, it is useful to refer to Sec.41 of the Transfer of Property Act, which reads as under: "41. Transfer by ostensible owner 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 ascertain that the transferor had power to make the transfer, has acted in good faith." 24. A perusal of the above Section would make it very clear that it contains two conditions and if both the conditions are satisfied then only the benefit of Sec.41 could be availed by a person invoking that Section. The first condition is that a person interested in an immovable property with his consent either express or implied, makes another person the ostensible owner of such property and if any transfer is made for any consideration, the same shall not be voidable on the ground that the transferor was not authorised to make it. The 2nd condition is that the transferee should act in good faith after taking reasonable care to ascertain that the transferor had power to make the transfer. Both the conditions should be satisfied and even if one of the conditions is not present, then Sec.41 will not apply to that transaction. 25. In the present case, even though the revision petitioner purchased the property from 2nd respondent on 22. 1984 itself, on the basis of the sale agreement dated 7. 1978, the fact of his purchase was not made known either before the 1st appellate court or before this court when the Second appeal was pending. It was also not established by the revision petitioner that he put on notice about the sale deed dated 22. 1984 to 1st respondent at any point of time. 1978, the fact of his purchase was not made known either before the 1st appellate court or before this court when the Second appeal was pending. It was also not established by the revision petitioner that he put on notice about the sale deed dated 22. 1984 to 1st respondent at any point of time. In such circumstances, the first condition of Sec.41 has been complied with, but that alone is not sufficient to take shelter under Sec.41, in the absence of second condition, namely, 1st respondent acting in good faith taking reasonable care to ascertain that 2nd respondent had power to make the transfer. It is the case of 1st respondent that he has taken all reasonable care by applying for Encumbrance Certificate, marked as Exs.A9 to A11, that too, for a period of 22 years from 1. 1970 to 11. 1991 and only after ascertaining that there is no encumbrance, he purchased the property in good faith. This was accepted by the executing court and therefore the executing court granted the benefit to 1st respondent available under Sec.41 of the Transfer of Property Act. 26. Whether the executing court has correctly held that 1st respondent has acted in good faith in entering into the sale deed dated 19. 1991 is another moot question that remains to be answered. 27. Before the executing court, the revision petitioner filed Encumbrance Certificate (Ex.B1) issued for a period of 24 years from January 1970 to July 1983 which clearly showed the partition deed entered into among the family members of 2nd respondent on 30.9.1970 (Document No.1555/70), the sale agreement dated 7. 1978 entered into between the revision petitioner and 2nd respondent (Document No.596/78) and the sale deed dated 22. 1984 executed by 2nd respondent in favour of the revision petitioner (document No.475/84). In such circumstances, the executing court should have compared the Encumbrance Certificate filed by 1st respondent showing no Encumbrance and Encumbrance Certificate filed by the revision petitioner showing the sale agreement and sale deed. But the executing court failed to do so necessitating this court to compare the same. Ex.A11 filed by 1st respondent is the Encumbrance Certificate issued by Sub-Registrar, Thiruvottiyur for 22 years from 1. 1970 to 11. 91, in which the partition deed dated 30.9.70 entered into among the family members of 2nd respondent alone was shown apart from the sale deed dated 19. Ex.A11 filed by 1st respondent is the Encumbrance Certificate issued by Sub-Registrar, Thiruvottiyur for 22 years from 1. 1970 to 11. 91, in which the partition deed dated 30.9.70 entered into among the family members of 2nd respondent alone was shown apart from the sale deed dated 19. 91 executed by 2nd respondent in favour of 1st respondent. A perusal of the schedule of the property given in Ex.A11 Encumbrance Certificate would show the property situated in S.No.78, New S.No.78/1 Part measuring an extent of 3320 sq.ft. Whereas, the Encumbrance Certificate filed by the revision petitioner, i.e., Ex.B1 for the period from 1. 1970 to 17. 93 would describe the property as situated in S.No.237/42 measuring an extent of 3200 sq.ft. It is obvious that the Survey Number differs and so is the extent in both the Encumbrance Certificates. The boundaries are also not exact in both the Encumbrance Certificates. Therefore the question now arises is whether 1st respondent has properly described the property in his application filed before the Sub-Registrar for getting the Encumbrance Certificate. 28. To answer this question, it is necessary to refer to the parent document namely, the partition deed dated 30.9.1970 by which the suit schedule property in O.S.No.918/1975 was allotted to 2nd respondent. This partition deed dated 30.9.1970 was filed by 1st respondent before the executing court as Ex.A13. A perusal of the partition deed would show that 2nd respondent is the third party in that partition deed who got schedule D which contains 44 cents in S.No.237/42 and 40 cents in S.No.78 apart from other properties. It is also an admitted fact that 1st respondent was a tenant even when the father of 2nd respondent himself was alive and a lease deed was also executed between the father of 2nd respondent and 1st respondent. This lease deed dated 110. 1968 was also marked before the executing court as Ex.A12. The schedule given in this lease deed dated 110. 68 reads as vacant land bearing S.No.237/42 measuring about 1-1/2 grounds. The plaint schedule in O.S.No.918/1975 is also vacant land measuring about 1-1/2 grounds in S.No.237/42. Only for this Survey Number, the decree was granted by the trial court on 23. 1978. Only for this property, a registered sale agreement was entered into on 7. 68 reads as vacant land bearing S.No.237/42 measuring about 1-1/2 grounds. The plaint schedule in O.S.No.918/1975 is also vacant land measuring about 1-1/2 grounds in S.No.237/42. Only for this Survey Number, the decree was granted by the trial court on 23. 1978. Only for this property, a registered sale agreement was entered into on 7. 78 (Ex.B2) between the revision petitioner and 2nd respondent which clearly shows that the sale agreement was entered into for the property situated in R.S.No.237/42 for an extent of 3200 sq.ft. The sale deed dated 22. 1984 also shows the property situated in S.No.237/42 for an extent of 3200 sq.ft. Only for this property, the Encumbrance Certificate produced by the revision petitioner (Ex.B1) shows all the transactions right from partition deed to sale deed dated 22. 84. But 1st respondent showed the property in his application as one situated in S.No.78, New S.No.78/1 part, measuring an extent of 3320 sq.ft., with different boundaries. That is why it did not show the sale agreement dated 7. 98(Ex.B2) and the sale deed dated 22. 2.84 (Ex.B3). There was no explanation whatsoever for showing a different Survey Number in the application filed by 1st respondent for getting the Encumbrance Certificate. In such circumstances, it cannot be said that 1st respondent has taken reasonable care to ascertain that 2nd respondent had the power to make the transfer and the revision petitioner acted in good faith. Further, in the partition deed dated 30.9.1970, apart from the 44 cents, situated in S.No.237/42, 2nd respondent was allotted with another 40 cents in S.No.78 among other lands. This partition deed was in possession with 1st respondent and in fact it is 1st respondent who filed the same before the executing court as A13. If that being so, why should 1st respondent apply for Encumbrance Certificate for the lands situated in S.No.78, when he had been a tenant in the lands situated in S.No.237/42. The suit itself is filed by 2nd respondent for evicting 1st respondent from the lands situated in S.No.237/42 only. 29. In the light of above factual aspects, I am of the considered view that 1st respondent has not acted in good faith and has not taken reasonable care to ascertain that 2nd respondent had the power to execute the sale deed on 19. 1991. Therefore, Sec.41 of the Transfer of Property Act will not save the sale deed dated 19. In the light of above factual aspects, I am of the considered view that 1st respondent has not acted in good faith and has not taken reasonable care to ascertain that 2nd respondent had the power to execute the sale deed on 19. 1991. Therefore, Sec.41 of the Transfer of Property Act will not save the sale deed dated 19. 1991 and the revision petitioner on the basis of the sale deed dated 22. 1984 is very much entitled to execute the decree granted in favour of 2nd respondent in O.S.No.918/1975. As the executing court has wrongly allowed the Sec.47 Application filed in E.A.No.469/1992, the same is liable to be interfered with by this court and accordingly the order dated 6. 1996 made in E.A.No.469/1992 in E.P.No.25/1992 is hereby set aside. Consequently, the order of the executing court dated 6. 1996 dismissing E.P.No.25/1992 is also set aside and the executing court is directed to restore E.P.No.25/92 on its file and dispose of the same on merits and in accordance with law, within 6 months from the date of receipt of a copy of this order. 30. In the result, both the Civil Revision Petitions are allowed. No costs.