(1) This appeal has been preferred by Jit Singh against the judgment and decree of the learned Senior Subordinate Judges, Kangra, affirming that of the Court of first instance passing in a decree in favour of Shrimati Kalapati and others, plaintiffs. The plaintiffs claiming to be the daughters of Beli Ram and Bishan Devi instituted the present suit for possession of the land in question on the following circumstances.
(2) Bishan Devi was the owner of one half share in Khata No. 84 having got this land from her husband Beli Ram; the other half is said to be owned by Beli Ram's reversioners. The whole of his Khata was 23 kanals and 16 marlas and was undivided. On 4th October, 1952, Shrimati Bishen Devi mortgaged her half share. On 25th of March, 1953, Beli Ram's reversioners filed a suit for possession of her share of the land on the allegation that she had become unchaste and had also remarried. This suit was decreed on 31st March, 1954, the Court holding Shrimati Bishen Devi to have become unchaste. As a result of this litigation, the whole of Khata No. 84 came into the possession of the reversioners. In 1955, half the Khata in question was sole by the reversioners in favour of Jit Singh appellant in this Court by means of an oral sale. On 9th October, 1958, the daughters of Shrimati Bishen Devi and Beli Ram instituted the present suit for possession of half share of the Khata in question on the ground that they were the heirs entitled to succeed to this land. This suit has been decreed by both the Courts below.
(3) It may be mentioned that Jit Singh the present appellant was imploded as defendant No. 4 and it was he who along took the matter in appeal to the Court of the learned Senior Subordinate Judge and having failed there has preferred the present appeal in this Court. He failed a joint written statement along with the other collateral's of Beli Ram and in addition to the pleas urged by them Jit Singh also contended that he was a bona fide purchaser for value without notice of the title of the plaintiffs. On this plea, issue No. 7 was framed which is in the following terms:
'7. Whether the sale in favour of defendant No. 4 is bona fide transfer for consideration and without notice of the defective title and is consequently protected under the provisions of S. 53A of Transfer of Property Act?
The court of first instance observed that apart from the bald statement by Jit Singh defendant as D.W. 5, there was no independent evidence in support of this issue. According to D.W. 5 (Jit Singh defendant) the land was sold by defendants Nos. 1 to 3 on the basis of mutation Exhibit D. 1, but besides the entry in the proceedings conducted by the Revenue Officer in connection with the attestation of Exhibit D. 1 there is no independent evidence on the record to hold that the consideration under sale passed to the vendors. The parties belong to the same village and the Court felt considerably difficulty in believing that the vend was unaware of the claim of the daughters of Beli Ram to the land in dispute. With those observations, the issue was decided against defendant No. 4.
(4) On appeal, the learned Senior Subordinate Judge observed that reference to Section 53A of the Transfer of Property Act was perhaps not correct and, indeed, the learned counsel for the appellants had admitted that the reference should have been to Section 41 of the said Act. Dealing with the merits of the case it was argued there that the names of the defendants Nos. 1 to 3 having been entered in the Revenue records and Buddha collateral having admitted that the vendors had received the amount in cash the sale should have been held for consideration and without notice. The Court, however, observed that Jit Singh as D.W. 4 had nowhere stated that he had actually made Enquirer; nor was any receipt of the amount produced on the present record. With these observations, the lower appellate Court confirmed the decision of the Court of first instance on this issue.
(5) On second appeal, the learned counsel has repeated the same contention in this Court. I, however, find myself wholly unable to sustain it. The onus to prove that the appellant was a bond fide transferee for value without notice was on him and it was for him to establish all the essential ingredients in order to take benefit of Section 41 of the Transfer of Property Act. The mere fact that Buddha has admitted the receipt of amount does not cannot bind the plaintiffs respondents, for it is obvious that those collateral's are joining hands with Jit Singh defendant No. 4 and as already observed they have all filed even a joint written statement. The conclusions of the two Courts below on issue No. 1 appear to me to be conclusions of fact and, therefore, binding on this Court, nothing having been shown to justify their reversal.
(6) Bindubashinee Debi v. Kashinath Bhattacharya, AIR 1932 Cal 167, relied upon by the appellant is of no assistance to him. The reported case dealt with benumb transactions and it was rightly held that the real owner is bound by the fraudulent conduct of the benamidar when third title can be overthrown by showing either direct notice of real title or of circumstances which should have put them on guard, the benamidar being a trustee for the official owner. Mt. Jasodar Dusadhin v. Mt. Sukurmani Mehtrani, AIR 1937 Pat 353, is equally unhelpful to the counsel, as that decision proceeded on its own peculiar facts and circumstances. Arur Singh v. Mt. Santa, AIR 1936 Lah 405, has also been relied upon for the argument that revenue entries were sufficient to convince the appellant of the ostensible title of his transferor. It is pertinent to point out that in the present case the revenue entries clearly show their source and origin and this would and should have induced the prospective purchaser to hold further enquiry about the title of his transferor. Muhammad Din v. Mt. Sandra Bib, AIR 1927 Lah 666, merely lays down that a party need not go behind revenue entries if no circumstance creating suspicion on vendor's title suggests itself.
(7) The legal position, however, is by now fairly well settled. In order to invoke the provisions of Section 41, Transfer of Property Act, the transferee is to prove the four ingredients laid down in this section namely:
(i) ostensible ownership of the transferor,
(ii) with express or implied consent of the real owner,
(iii) payment of consideration by the transferee, and
(iv) good faith and reasonable care on his part to ascertain the power of the transfer to transfer the property.
It is thus obvious that in order to create ostensible ownership the real owner must in some manner be privy to it; mere inaction or silence per se in the absence of some circumstances making it incumbent on him to act or speak would not normally speaking be enough.
(8) Considering the case at bar in the light of what has just been stated, it is not possible to say that the decree of the Court below is tainted by any legal infirmity so as to justify interference on second appeal.
(9) The counsel then contended that the appellant has been defrauded by the collaterals. If that is so, then it would certainly be open for him to take appropriate proceedings against them either for the refund of consideration paid by him for the oral sale or to insist on delivery to him of other land of equal value or area by his vendors. But merely because he may have been defrauded by defendant Nos. 1 to 3 is no ground for depriving the plaintiffs of their legitimate share of the estate left by Beli Ram.
(10) For the reasons given above this appeal fails and is hereby dismissed with costs.
(11) Appeal dismissed.