K. Sreedhar Rao, J.
1. The appeal is filed against the judgment and decree in R.A. No. 91 /91 on the file of District Judge, Bijapur arising out of the judgment and decree passed in O.S. No. 109/90 on the file of Principal Civil Judge, Bijapur. The appellants are defendants 3 and 4 in the suit. The first respondent is the plaintiff. The respondents 2 and 3 are defendants 1 and 2. The plaintiff is the son of second defendant. The first defendant is the coparcener of the second defendant. The defendants 3 and 4 are purchasers of the suit lands from the first defendant under registered sale deed Ex. P. 17 and P. 18. The plaintiff contends that the property under Ex. D. 1 was sold by second defendant in favour of first defendant without his knowledge. The plaintiff had reposed full trust in second defendant. The second defendant took the plaintiff to Tahsildar's Office took his signature under the pretext as a witness to the document without informing the contents. The first defendant was totally dependent on the second defendant and had no capacity to pay huge consideration of a sum of Rs. 36,000/- and odd towards the purchase of the suit land under Ex. D.1. Therefore, the sale deed executed by first defendant under Ex. D.9 is only nominal and not acted upon. The plaintiff further claims that the grandfather of defendants 3 and 4 with full knowledge of voidable circumstances purchased the property in the name of minor/defendant No. 3 represented by his father as the guardian and in the name of defendant No. 4, where the grandfather acted as a guardian. Therefore plaintiff contends that the sale deed executed is void and not binding on him, seek a declaration that he is the absolute owner of the suit property. The second defendant has remained absent. The first defendant has not filed any written statement and contested the case. The defendants 3 and 4 are the only contestants. They deny the plaint allegations, contend that the first defendant had full rights to sell the property. The second defendant executed the sale deed in favour of the first defendant to which the plaintiff is a consenting witness, therefore contends that plaintiff is estopped from denying title of the first defendant and cannot assail the sale made in favour of defendants 3 and 4.
2. The trial Court found that defendants 3 and 4 have failed to establish that they are the bona fide transferees Under Section 41 of the Transfer of Property Act, held that to the extent of share of the plaintiff the sale made by second defendant in favour of first defendant is not binding and so also the sale by first-defendant in favour of defendants 3 and 4 is not binding and granted a decree for partition declaring half share to the plaintiff in the suit property and directed the parties to work out remedy in final decree proceedings. The appellate Court confirmed the judgment and decree and dismissed the appeal of the defendants. The cross-objections filed by the plaintiff is also dismissed. Hence this appeal.
3. The following substantial questions of law are formulated for consideration in this appeal by the admission Judge :
'Whether trial Court could have decreed the suit after holding in Para 11 that suit is a collusive one?'
4. On hearing the parties, the additional questions of law is framed:
'Whether the grant of decree for partition by the appellate Court declaring half share in the suit properties in favour of plaintiff is erroneous in law and perversely contrary to evidence on record?
5. The appellants/defendants 3 and 4 seek a cover of protection Under Section 41 of the Transfer of Property Act to resist the claim of the plaintiff. The suit lands were earlier the joint family properties. The second defendant had executed a sale deed in favour of the plaintiff in the year 1972 conveying his share of the property including the suit lands. Subsequently under Ex. P.8 the mutation entry dated 25-2-1979, the plaintiff has relinquished all his rights in respect of the suit land in favour of his father. Consequent thereto mutations are made in the revenue records, in favour of second defendant. Under Ex. D. 1 dated 1-4-1985 the suit land is sold in favour of first defendant by the second defendant and plaintiff is a consenting witness to the said document. Consequent to the sale under Ex.D. 1 the name of the first defendant is mutated in the revenue records. The suit came to be filed by the plaintiff couple of months after the execution of sale deeds under Ex. P.17 and Ex.P.18 in favour of the appellant. Defendant Nos. 3 and 4 who are cousins. The father of defendant No. 3 is examined as D.W.1. According to his evidence on the basis of the revenue records, and the sale deed Ex.D.1 the property is purchased by defendants 3 and 4 under Exs. P.17 and P.18. The suggestions made to D.W.1 that with the knowledge of voidable circumstances and defect of title of first defendant the suit lands are purchased is denied. D.Ws. 2 & 3 witnesses for the defendants in their evidence support the contention of defendants 3 & 4 that the suit land at the time of purchase was in possession of the first defendant D.W. 2 further states that he is a witness to Ex.D.1 and that plaintiff is a consenting witness and was aware of the nature of transaction under Ex.D.1.
6. It is the contention of the plaintiff that under Ex. D.8 the plaintiffs right in the property is not forfeited since the relinquishment is not by a registered document and also that the relinquishment mentioned in Ex.P.8 is not as a consequence of accomplished oral partition between the plaintiff and the second defendant. Therefore, the second defendant does not become exclusive owner of the suit lands. The fact that plaintiff was only a witness to Ex.D1 does not divest the rights of the plaintiff in the suit land since he is not a co-executants along with second defendant under Ex.D1. The plaintiff is only a witness not knowing the nature of transaction and that there is no inference in law that a witness should be aware of the contents. It is further contended that the scribe of the document is not examined and that no evidence is placed to show that contents of Ex.D. 1 was read over and explained to the plaintiff.
7. Regarding protection claimed Under Section 41 of the T.P. Act, it is argued that the trial Court and the appellate Court have rightly held that the defendants have failed to prove that they were not aware of the defect in title of the first defendant. It is to every body's knowledge that the first defendant had no independent means to pay consideration amount. Whatever the consideration stated, was only on paper. The sale under Ex. D1 was sham and nominal not acted upon. The said fact was to the knowledge of the grandfather of the defendants who acted as a guardian for purchase of land in the name of the 4th defendant and he is not examined to refute the contention of the plaintiff. The Courts below have drawn an adverse inference properly, accordingly argued for dismissal of the appeal.
8. The two crucial aspects involved in the case are that whether Section 41 of the Transfer of Property Act would fully protect the purchase made by appellants and whether the appellants were the bona fide purchasers as postulated in Section 41 of the T.P. Act. Further question would arise whether the appellate Court has properly evaluated the factual evidence for invoking Section 41 of the Act by the defendants.
9. The trial Court and the appellate court take a view that non-examination of the grandfather of the 4th defendant affects the veracity of the claim of defendants 3 and 4 for invoking Section 41 of the Transfer of Property Act and that the relinquishment under Ex. P.8 has no legal effect in law since it is not a registered document. Therefore holds that the right and interest of the plaintiff to an extent of half share in the suit property is not affected. Despite the observation that the plaintiff and second defendant are colluding, the appellate Court, in view of the fact that the plaintiff does not lose rights over the property under Ex. P.8, holds that plaintiff is entitled to half share.
10. Sri. Tilugul learned Counsel for the appellants relied on the decision of the Supreme Court in Syed Abdul Khader v. Rami Reddy, : 2SCR424 . In the decision at Paras 18 and 19 the following observations are made.
'18. ................ The fact, however, remains that the father of the plaintiff who must be a man of considerable influence being a Minister in the Government of Nizam, must have acted as if he was the owner of the land. Undoubtedly, the agreement Ext. D-18 for sale of land was entered into between the father of the plaintiff and defendant No. 1 and pursuant to this agreement defendant No. 34 executed a sale deed in favour of defendant No. 31, but it may be noticed that the agreement Ext. D-18 was entered into two months prior to the grant of Power of Attorney, Ext. P-1. There is, however, evidence to show that the agreement for sale of land and the sale deed were taken in the presence of and to the knowledge and with the full acquiescence of the plaintiff. .............Even if the father of the plaintiff could be said to be an ostensible owner of the land and he purported to sell the land, the plaintiff the real owner as he claimed to be had acquiesced in the same and accepted the consideration and in this background he would be estopped from challenging the title which was transferred pursuant to the sale. In the backdrop of these circumstances the principle enunciated in Section 41 of the Transfer of Property Act would come to the rescue of the transferee. Section 41 of the Transfer of Property Act provides that where, with the consent, express or implied, of the person interested in immoveable 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 authorized to make it. Section 41 codifies what was once treated as a principle in equity which the Judicial Committee had recognised in Ramcoomar v. Macqueen, (1872) Ind App Supp Vol. 40 11 Beng LR 46 (PC).
19. In this case 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 D-18 to sell the land to defendant 1. The transaction was completed in the presence of the plaintiff and the consideration was put in the hands of the plaintiff. Plaintiff would certainly be 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 the agreement Ext. D-18, his constituted attorney defendant 34 acted as a mere rubber stamp.'
11. On careful consideration of the oral and documentary evidence I find the view taken by the appellate Court is perverse and contrary to law and evidence on record. May be the relinquishment under Ex. P.8 is invalid and it should have been by a registered document to effect relinquishment. None the less from the stand point of alienee it makes no difference in law since the plaintiff by his conduct has shown relinquishment of rights in the revenue records and allowed the mutation entry to that effect showing the entire property as belonging to the second defendant. The explanation given by the plaintiff that he was not aware of the nature of transaction under Ex. D. 1 and he was not aware of the contents is an artificial explanation. The evidence of DW.2 the other co-attesting witness belles the contention of the plaintiff. First-plaintiff categorically admits that he is a consenting witness to Ex. D. 1. Within 8 days of the registration of Ex.D. 1 states that he comes to know about the nature of transaction but does not take any steps to challenge the same, allows the mutation in the revenue records in the name of the first respondent. To the world at large by the conduct the plaintiff gives an impression that he does not have any right in the property whether or not the first defendant paid consideration but she becomes an ostensible owner of the property Under Section 41 of the T.P. Act. 5 years after Ex.D.1 the first defendant sells the property to the appellants,
12. The plaintiff claims that he is in continuous possession and enjoyment. However, the plaintiff has not produced any convincing evidence by way of R.O.R. extracts to show his continuous possession and enjoyment as on the date of suit. On the other hand, the evidence of D.Ws. 2 and 3 disclose that first defendant was in possession and enjoyment of the land after Ex.D1. Only by the fact that the guardian of the 4th defendant is not examined cannot be a valid reason to raise adverse inference against the defendants to hold that they are not bona fide purchasers. The transactions reflected in the revenue records and in the registered documents fully supports the ostensible title and possession of the first defendant. D.W. 1 the father of the third defendant has testified to the fact that defendants 3 and 4 were guided by the registered documents and the revenue records while purchasing the property under Ex. P. 17 and P. 18. D.W. 1 although not a guardian for the 4th defendant while purchasing the property under Ex.D. 18 but cannot be said that he does not have competence to speak about the circumstances relating to bona fides of purchase under Ex. P.17 and P. 18 since both purchases are made simultaneously from the same vendor. There is a clinching documentary and oral evidence to show that the plaintiff by his conduct allowed the world at large to believe that he has no right in the properties and in fact was not in possession of the property. Therefore, under such circumstances guided by the land revenue records and the title deeds, the defendants 3 and 4 have duly purchased the properties and they are entitled to protection Under Section 41 of the T.P. Act. The decision of the Supreme Court fully applies to the facts of the case.
In that view of the matter, I find the appreciation of evidence and the legal inference drawn by the appellate Court is perverse and contrary to law and evidence on record. The point of law formulated is answered in the affirmative. Accordingly, the appeal is allowed. The judgment and decree of the appellate Court is set aside. The suit of the plaintiff is dismissed.