1. This is an appeal brought by the plaintiffs against a judgment and decree of Mr. Madan Mohan Singh, Subordinate Judge, Sonepat, dated 20-1-1949 being a preliminary decree for partition but not giving to the plaintiffs the relief that they wanted in their plaint.
2. Ghasita Mal sold 1 bigha 7 biswas kham ofland on 23-8-1930 to various persons for a sum ofRs. 2,000/-. In the deed of sale which was registered and was in regard to khasra No. 3942/2 theshares of the vendees were as follows-
Dwarka Dass --6 shares
Panna Lal and Rangi Lal --2 shares each.
Sabha Chand --6 shares.
This land was situated within the municipal limits of Sonepat Town. Sobha Chand on 16-6-1933 sold his six shares to Sangat Bai for a sum of Rs. 500/-by means of a registered deed Ex p. 3. As the vendees were unable to get possession of the land they on 24-8-1936 instituted a suit for possession against the vendor Ghasita Mal and one Ibrahim, Brij Kishore and Kishori Lal, The land in dispute which had been sold by Ghasita Mal under the registered sale deed dated 23-8-1930 consisted of khasra Nos. 6615/6524 ( 15 biswas) and 6616/6524 (10 biswas): total 1 bigha 5 biswas. The suit for possession was dismissed on the ground that Ghasita Mal had no saleable interest, but a decree for Rs. 2,000/- was passed as damage against Ghasita Mal. This is Ex p. 4 at page 31 of the paper book. Ghasita Mal then took an appeal to the District Judge where the present plaintiffs were respondents, and there they gave up their claim to 10 biswas of khasra No. 6616/6524 and the District Judge granted a decree for possession of the rest, i. e. 15 biswas bearing khasra No. 6615/6524. This was on 13-12-1938. A decree was drawn up the same day.
3. On 23-12-1939 a mutation of possession was sanctioned in favour of Dwarka Das and others which ig Ex P. 10 at page 41. In column No. 10 it is stated--
'Ghasita Mal co-sharer, Mahajan, vendor. Dwarka Das, son of Shambu Nath, Sangat Bai, son of Baij Nath, Mst. Parmeshri widow of Panna Lal and Rangi Lal son of Munna Lal, caste Mahajan residents of Sonepat, vendees without share in the 'shamilat' in equal shares.'
In column 13 it is stated 'sate through Civil Court possession on the 17th November 1939. Rs. 2000/-'. In the mutation order which is at page 43 of the paper book, it is shown that Dwarka Das and Rangi Lal were present, that a part of the land was previously soid by Ghasita Mal co-sharer to the vendees for Rs. 2000/- but that the mutation in respect thereof was not sanctioned in their favour, that the Court had declared that the land in dispute had been actually sold by Ghasita Mal to the vendees for Rs. 2000/- and that mutation was sanctioned in favour of the vendees in equal shares.
4. On 19-1-1948 Rangi Lal sold to Sulakh Chand defendant 2 for Rs. 4,400/- one-quarter share of the land bearing khasra No. 6615/6524. This was registered on 20-1-1948. In this deed the particulars of the land of which equal ownership is shown were given and it was also stated that the vendor was in possession of his one-fourth share. The following recital in the deed is important--
'I, the executant, am in possession of my share measuring 2 biswas entered at khata No. 3212, as owner and co-sharer, and Babu Narain Das, son of Kure Mal, caste Mahajan, resident of Sonepat, is in possession of 1/4 share measuring about 2 'biswas' entered at khata No. 3213. My share is free from all encumbrances such as mortgage and sale.'
He then purports to transfer his one-fourth share measuring 4 'biswas' approximately which he says . is owned and possessed by him. The consideration for the sale was a pronote which was to be discharged by the transfer of this property. As no money was to be paid, naturally nothing passed before the Registrar. It is significant to note that he guaranteed his own title to two 'biswas' but did not guarantee his title to the other two 'biswas' or thereabout in possession of Narain Das.
5. On 12-4-1948 Dwarka Das and Sangat Rai brought a suit for partition against Rangi Lal, Sulekh Chand and Mst. Parmeshri claiming shares in accordance with what was given in the original sale deed by Ghasita Mal in favour of these vendees --Dwarka Das 3/-8th share, Sangat Rai 3/8th share, Rangi Lal 1/8th share and Parmeshri widow of Panna Lal 1/8th share and alleging that Rangi Lal had sold 1/4th share by misrepresentation although he was only entitled to 1/8th share. The defence of Rangi Lal was that the mutation correctly represented the share of each cosharer, i. e. one-quarter each. Sulekh Chand pleaded that the plaintiffs were the owners of one-quarter share each and that Dwarka Das was present when the mutation was attested and he cannot be allowed to allege that Rangi Lal was not the owner of a quarter share. He also pleaded that the entries in the revenue papers were one-quarter each and he purchased one-quarter from Rangi Lal defendant and the plaintiffs were estopped under Section 41, T. P. Act from attacking that sale and that Rangi Lal was in possession of his one-fourth share and therefore he (Sulekh Chand) was entitled to a quarter share on partition. Several issues were framed, and the learned Judge held Section 41 applicable and decreed the plaintiff's suit to the extent of one-quarter each instead of what was claimed by them. The plaintiffs have come up in appeal to this Court.
6. In order to determine whether Section 41, T. P. Act applies, it is necessary for the defendant to show that the ostensible owner was in possession by consent, express or implied of the true owner, and that he was a bona fide purchaser for value and that he had made a careful search of the title of his vendor before he purchased the property. The statement of the defendant does not prove that he made any enquiry. He started off by saying that when he purchased the land he satisfied himself by securing an extract from the revenue records from the Patwari which showed that Rangi Lal's share was one-quarter. When cross-examined he stated that he satisfied himself from the register which was maintained by the Patwari but that he did not see the register himself as he did not know Urdu. He did not even have the entries read out to him and it was only the Patwari who told him that the share of Rangi Lal was one-quarter and the Patwari never told him anything about the entry regarding Ghasita Mal vendor or Dwarka Das or Suiekh Chand or Panna Lal. He did not even know about the preparation of the 'jamabandi' for the year 1946-47 and did not enquire from Rangi Lal as to how much share of the land he had purchased from Ghasita Mal. In regard to the payment of the purchase price he said he could not give any details about the pronote. He further said that he had his 'bahis', but he never produced them and contended himself by saying that the accounts were kept by his 'munib' and that he (the 'munib') could give details. Neither the 'munib' nor the 'bahis' were ever produced.
7. From this statement I am unable to con-elude that the defendant Sulekh Chand made due enquiry as required under Section 41, T. P. Act in regard to the title of his vendor. If Suiekh Chand had been a careful man, as the law requires him to be, it was his duty to find out what the dispute between the parties was in which the decree was passed. There was a reference in the mutation to the decree, and if he had cared, he would have looked into the judgment of the District Judge from which he would have been able to find out as to how his vendor had acquired title to the land in dispute. In the order of the mutating officer reference is made to the sale by Ghasita Mal eosharer to the vendees for Rs. 2,000/-. But it is true, as was submitted by Mr. Fakir Chand Mittal, that no reference was made to the deed of sale, but for that, as I have said, if Suiekh Chand had only taken the trouble, he would have been able to find out from the judgment of the District Judge. The sale deed in favour of Suiekh Chand also shows that his vendor was not guaranteeing any title to the land other than two 'blswas'. As a matter of fact from the recital which I have quoted above it is not quite clear whether the vendor ever said that he was owner of the portion of that land, that he was purporting to sell. After a careful consideration of this evidence I hold that no enquiry as required under Section 41, T. P. Act was made.
8. The land in dispute was situated within the limits, of a Municipality where people ordinarily would be purchasing and selling land by means of registered sale deeds. In a dissenting judgment given by Mahajan J. in -- ' Shamsher Chand v. Bakhshi Mehr Chand', AIR 1947 Lah 147 (PB) (A), certain principles have been laid down which would apply to eases in which protection of Section 41, T. P. Act is sought to be raised. The learned Judge has held that revenue records are no substitute for title deeds. Such, records may be presumptive evidence of title but they are not by themselves title deeds and a mere enquiry into the revenue records is no substitute for enquiry into the title of the vendor and that the proviso contained in Section 41, T. P. Act is meant for the protection of careful men and not for indifferent and credulous people. 'If a person is credulous,' said Mahajan J.
'and is satisfied with an incomplete enquiry, and only takes notice of events which took place within the last five or six years and does not dive deeper to find out title, such a person cannot claim the protection of the proviso to Section 41, T. P. Act. In the absence of title deeds, and in the absence of any registered transaction in respect of property it may be that the entries in the Jamabandi furnish the best evidence of the title of the transferor and in such cases the requirements of the proviso would be satisfied by the transferee if he merely looks at the revenue records. But a mere look at them 'simpliciter' without anything more cannot, in my opinion, satisfy the requirements of the section.'
I respectfully agree with the observations of his Lordship and am of the opinion that where there are registered deeds of sale it is not a sufficient compliance with the provisions of Section 41, T. P. Act if a person merely looks at the revenue records and docs not go any further.
As a matter of fact Section 3, T. P. Act gives the meaning of the word 'a person is said to have notice' as follows
' 'a person is said to have notice' of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I. Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under Sub-section (2) of Section 30, Indian Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired is situated:
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder,
(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act.'
It has been held that there is a legal presumption of knowledge arising from wilful abstention from an enquiry or search. At page 27 of Mulla's Transfer of Property Act, the words 'wilful abstention from an enquiry or search' are discussed. Reference is there made to a passage from a judgment of Wigram V. C. in -- 'Jones v. Smith', (1841) 1 Hare 43 at p. 45 (B). In -- 'Agra Bank v. Barry', (1874) LR 7 H. L. 135 at p. 157 (C), Lord Selborne observed
'But this, if it can properly be called a duty, it is not a duty owing to the possible holder of a latent title or security. It is merely the course which a man dealing 'bona fide' in the proper and usual manner for his own interest, ought, by himself or his solicitor, to follow with a view to his own title and his own security. If he does not follow that course, the omission of it may be a thing requiring to be accounted for or explained. It may be evidence, if it is not explained, of a design inconsistent with 'bona fide', dealing to avoid knowledge of the true state of the title.'
The two judgments on which reliance is placed by Mr. Mital would not be good law. They are -- 'Mohammad Din v. Mst. Sardar Bibi', AIR 1927 Lah 666 (D) and -- 'Arur Bingh v. Santi', AIR 1936 Lah 405 (E). In the former the grant had been made to the father of three persons and on his death the elder son Mohammad Alam made an application that all the three brothers were owners of the property, but the land remained in his possession, and the revenue records only showed the ownership of Mohammad Alam. The reason apparently was that the grant had been forfeited and was regranted to Mohammad Alam alone who alone acquired occupancy rights and proprietary rights in the land. In those circumstances a search in the revenue records was held to be sufficient, but Tek Chand J. said there that even if the revenue records had been searched they would not have put the vendee on any kind of enquiry. Therefore this case is not of much assistance, in the latter case, the land was agricultural land within the Municipal limits and the question was whether a mortgage by a registered deed which was not mentioned in the revenue records could be defeated under Section 41, T. P. Act. In the circumstances of that case the learned Judges held that it could be. Whether that judgment is right or wrong, the principle laid down by Mahajan J. in the Full Bench is, in my opinion, the correct law, and with great respect I find myself unable to agree with the rule laid down in 'Arur Singh's case (E)',
9. I would, therefore, hold that the defendant Sulekh Chand has not been able to establish that his sale has been protected under Section 41, T. P. Act and I would therefore allow this appeal and vary the preliminary decree to this extent that the shares of the parties would be Dwarka Dass 6/16th, Sangat Rai 6/16th, Sulekh Chand 2/16th and Parmeshri 2/16th. In the circumstances of this case the parties will bear their own costs in this Court and in the Court below.
10. I agree. I would follow Mahajan J. in the noting cited.