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Muhammad Sulaiman Vs. Sakina Bibi and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in69Ind.Cas.701
AppellantMuhammad Sulaiman
RespondentSakina Bibi and anr.
Cases ReferredIn Partap Chand v. Saiyida Bibi
Excerpt:
.....but had made no further enquiries as to whether the property had really belonged to the sons or not. it was held by this court that the transferee, though acting in good faith, had not taken reasonable tare to ascertain that the transferor had power to make the..........acting in good faith, had not taken reasonable tare to ascertain that the transferor had power to make the transfer.4. on the facts found, it cannot, therefore, be said that the enquiry made by the defendant-appellant was sufficient. in fact what he had already learnt was sufficient to put him on his guard and induce him to make farther enquiries before taking a sale-deed from a person who had practically got his name entered in the municipal house tax register either under some mistaken notion or by fraud. the plaintiff appellant explains in her statement that she was under the impression that the rent of the house was being utilised in the repairs of a certain mosque and no adverse inference can be drawn from the fact of her having omitted to claim or realise rent from the person.....
Judgment:

1. The dispute in this appeal relates to a house situate in Cawnpore City. The house belonged to Musammat Sakina, the plaintiff-respondent, in the beginning of 1912 she went to Mesca, leaving the house in charge of a relation of hers named Badulla. Before leaving for Mecca, she had executed a Will by virtue of which she bad bequeathed an interest in that house to Badulla on her death. At Bombay she got herself re-married to a person named Nur Jamal and went with him to Mecca where she stayed for two years. On her return she went to Delhi where she stayed with her husband.

2. Meanwhile an application was made by Badulla to the Municipal Board, Cawnpore, on the 31st May, 1915, stating that he was not aware of the whereabouts of Musammat Sakina who had gone on pilgrimage, nor certain whether she was dead or alive, and praying that the house might be entered in his name, as he was her only heir. This application was granted and the name of Badulla was entered in the Municipal house-tax Register in the place of Musammat Sakina. On the 30th September 1917 he sold the house for Rs. 2.500 to the defendant appellant, and the question for consideration in this appeal is whether the plaintiff is bound by that sale. The Court of first instance found that the defendant-appellant had taken reasonable care to ascertain the title of Badulla before taking a Bale-deed from him and that he had asked in good faith and purchased the house for valuable consideration. The lower Appellate Court, however, held that Badulla was not the ostensible owner of the house with the express or implied consent of Musammat Sakina and the sale was not, therefore, binding on her. That finding is challenged here. On the question as to whether the defendant-appellant had made reasonable enquiries before purchasing the property, the finding of the lower Appellate Court was that he had done so, and stress is laid on behalf of the defendant. appellant on that finding as militating against the decree which the lower Appellate Court has passed in favour of the plaintiff.

3. It appears from the statement of the defendant-appellant himself that he was aware that Musammat Sakina was originally the owner of the disputed property. He had ascertained that fact when he examined the Municipal house-tax register. Had he made a further inquiry, he would have learnt that the name of Badulla was substituted in her place by means of an application in which Badulla had admitted that he was not aware whether Musammat Sakina was dead or alive. Musammat -Sakina had been absent from Cawnpore for not more than six years. The defendant-appellant states that he had made enquiries from certain neighbours and was led by them to believe that Badulla was the owner of the house, but that enquiry could hardly be treated as sufficient in view of the fact that he knew that Musammat Sakina was the original owner of the house and no satisfactory information was available as to whether she had actually died. The presumption of death could not have been made before the lapse of seven years, Badulla was only the manager of her property, and, as pointed out in the case of Jamna Das v. Uma Shankar 25 Ind. Cas. 158 : 12 A.L.J. 411 : 36 A. 308, the possession of a manager cannot be treated as sufficient evidence of ostensible ownership with the consent., express or implied, of the real proprietor within the meaning of Section 41 of Transfer of Property Act. The entry of the name of Badulla in the house tax register was only made for the purpose of assessment and collection of house-tax and was not intended for registering title, and as their Lordships of the Privy Council say in Merwanji Muncherji Cama v. Secretary of State for India in Council 30 Ind. Cas. 539 : 19 C.W.N. 1053 : (1915) M.W.N. 536 : 2 L.W. 701 : 29 M.L.J. 299 : 13 A.L.J. 1026 : 39 B. 664 : 42 I.A. 285 (P.C.), such an entry is not always enough to induce a person to think that the person whose name was entered was the proprietor and had a right to sell the property which was entered in his name. In Partap Chand v. Saiyida Bibi 23 A. 442 : A.W.N. (1901) 137, a Government Official owning Zemindari property had caused that Zemindari property to be recorded in the revenue papers in the names of his young sons and the latter subsequently sold portions of the properly and mortgaged others. The vendee and the mortgagee had satisfied themselves that the property had been recorded for some years in the names of the sons but had made no further enquiries as to whether the property had really belonged to the sons or not. It was held by this Court that the transferee, though acting in good faith, had not taken reasonable tare to ascertain that the transferor had power to make the transfer.

4. On the facts found, it cannot, therefore, be said that the enquiry made by the defendant-appellant was sufficient. In fact what he had already learnt was sufficient to put him on his guard and induce him to make farther enquiries before taking a sale-deed from a person who had practically got his name entered in the Municipal house tax register either under some mistaken notion or by fraud. The plaintiff appellant explains in her statement that she was under the impression that the rent of the house was being utilised in the repairs of a certain mosque and no adverse inference can be drawn from the fact of her having omitted to claim or realise rent from the person who was in charge of the house whilst she was away. We do not consider that Section 41 of the Transfer of Property Act is applicable, and dismiss this appeal with costs.


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