1. This appeal has been filed against the judgment and decree of the Additional District Judge, Bhatinda, dated Sept. 10, 1974, by which the decision of the trial Court was reversed and the plaintiff-appellant's suit for possession was dismissed.
2. It may be pointed out here that there was some delay in the fling of the appeal and as such an application under Section 5 of the Limitation Act was fi1ed praying for condonation of the delay. The Bench admitting the appeal observed that the application under S. 5 will be heard along with the appeal. I find that the delay in the filing of the appeal was due to the illness of the appellant. As such, the application for condonation of delay is not opposed by the learned counsel for the respondents. Accordingly, the delay in filing of the appeal is condoned.
3. The sole point for determination in this appeal is whether the defendants numbers 1 to 6 are entitled to the protection of Section 41 of the Transfer of Property Act (hereafter referred to as the Act') in absence of making inspection of record in the registration office.
4. The unconverted facts of this case are that Amar Dass father of Sarwan Singh, defendant No. 6, and Kishan Dass father of Hakam Singh, defendant No. 7, were brothers. Ram Dass was their third brother. All the three brothers were owners of the land in dispute measuring 169 Bighas 15 Biswas situated in village Naruana. On the death of Amar Dass, his 1/3rd share was inherited by his son defendant No. 6. This defendant along with his uncles Kishan Dass and Ram Dass mortgaged the land with possession in favour of the mortgagees for Rupees 7,000/-. Thereafter Kishan Dass died and his 1/3rd share in the land was inherited by his son defendant No. 7. Ram Dass also died subsequently leaving defendants Nos. 6 and 7 as his nearest heirs. Defendants Nos. 6 and 7 sold the entire land including the share of Ram Dass to defendants Nos. 1 to 5 on the basis of a registered sale deed dated August 16, 1956. The vendees redeemed the aforementioned mortgage on July 3, 1857 and took possession of the land. The mutation regarding the redemption of mortgage was sanctioned on November 29, 1957. It transpired that Ram Dass had sold his 1/3rd share during his lifetime in favour of the plaintiff-appellant's father on November 18, 1946 by executing a registered sale deed in his favour. However, no effort was made either by thc plaintiff's father in his lifetime or after his death by the plaintiff himself to get this transaction mutated in the revenue record. After a 1apse of more than 20 years from the date of sale and about 12 years after the vendees-defendants Nos. 1 to 5 had taken possession of the land, the plaintiff Avtar Singh brought the instant writ on January 6, 1971 for possession of 1/3rd share of the disputed land on the basis of the sale effected in his father's favour by Ram Dass on November 18, 1946. The suit was contested by the defendants on various grounds but we are concerned only with one of them, namely, whether defendants Nos. 1 to 5, who are vendees of the whole land from defendants Nos. 6 to 7, are entitled to the benefit of Section 41 of the Act so far as the 1/3rd share of Ram Dass is concerned. The learned trial Court found that since the vendees had not made enquiry from the registration office to ascertain whether Ram Dass had executed any sale deed in respect et his share in the land, they are not entitled to the projection of Section 41 of the Act. Arriving at this finding the plaintiff's suit for possession of 1/3rd share in the disputed land was decreed. The defendants filed an appeal against the judgment and decree of the trial Court which was allowed by the Additional District Judge, Bhatinda, holding that the vendees-defendants Nos. 1 to 5 are entitled to the benefit of Section 41 of the Act. As a result of this finding the judgment and decree of the trial Court were set aside and the plaintiffs suit was dismissed.
5. From the evidence produced by the parties the first appellate Court has found the following facts to be proved:
(i) That when defendants Nos. 5 and 7 effected sale of the land in dispute in favour of defendants Nos. 1 to 5 oral sales were permitted in the State of Punjab;
(ii) That on the death of Ram Dass his inheritance was mutated in favour of his widow Nand Kaur on December 18, 1950. When Nand Kaur died a mutation of succession was sanctioned in favour of defendants Nos. 6 and 7 with regard to the land situated in village Ghuda on November 18, 1951. The land in dispute is situated in village Naruana and it was under mortgage with possession when Nand Kaur died and so the names of Ram Dass and his brothers continued in the revenue record as owners of this land although all the three brothers had died by then;
(iii) That the appellant was fully aware from thc very beginning that Ram Dass had sold, his 1/3rd share on 18-11-1946 in favour of his father. Despite this knowledge no effort was made by him or his father to get this sale recorded in the revenue record.
(iv) That defendants Nos. 1 to 5 had redeemed the mortgage on 3-7-1957 and had taken possession of the land from the mortgagees; and
(v) That the vendees-defendants Nos. 1 to 5 satisfied themselves from the revenue record that defendants Nos. 6 and 7 were the ostensible owners of 1/3rd share of Ram Dass being his heirs before purchasing the land including the share of Ram Dass from them.
6. It is argued on behalf of the plaintiff-appellant that despite the aforementioned proved facts the alienees should have inspected the records in the registration office and they cannot be said to have performed their duty to make reasonable enquiry by merely looking at the revenue record. It is, therefore, contended that the protection of Section 41 of the Act cannot be made available to defendants Nos. 1 to 5. This contention has been rightly repelled by the first appellate Court and t find' infirmity in its finding that simply because defendants Nos. 1 to 5 had not inspected the records in the registration office it is no ground to deprive them of the benefit of Section 41 of the Act. The learned trial appellate Court was quite right in placing reliance on the Ful1 Bench decision of the Lahore High Court in Shamsher Chand v. Bakshi Mehr Chand, AIR 1947 Lahore 147, in arriving at this conclusion. in that case it was urged that the practice of registering sale of village lands was well-established and practically all such sales were recorded in mutation registers and ultimately in the record of rights. Consequently, the usual course of business in relation to transfers of such lands should be held to include examination of the records in the registration office, and mere inspection of the revenue records should be held to be insufficient. This contention was repelled and it was held that it was true that land transfers in village were being made by means of registered instruments more frequently but at the same time it was undoubted that oral transfers as permitted by law in the State of Punjab continued to be made. Apart from the convenience to the parties there was also a considerable saving in respect of the stamp duty by making a transfer orally in the village. A ruling to the effect that inspection of the records in the registration office is a sine qua non in relation to grant of protection afforded by Section 41 of the Act will have an adverse effect on great number of transfers effected in the past in which the transferors had acted in faith of the revenue entries and in belief that the law was settled by the decision of the same Court in Mohammad Din v. Mt. Sardar Bibi, AIR 1927 Lahore 666 and in Arun Singh v, Mt. Santi, AIR 1936 Lahore 405. In these two rulings it had been held that a vendee who accepts a transfer on the faith of entries in the record of rights is protected by the principle underlying Section 41 of the Act if there were no circumstances which should have led him to go behind the revenue records and make further enquiry. It was finally held that it would be incorrect to say that the two above referred judgments reported in Mohammad Din v. Mt. Sardar Bibi, AIR 1027 Lahore 666 and in Arun Singh v, Mt. Santi, AIR 1936 Lahore 405, do not 1ay down good law. The ratio of this judgment plainly is that where oral sales are permitted the inspection of the records in the registration office cannot he considered a sine qua non while granting protection under Section 41 of the Act. However, the facts and circumstances of each case shall have to be looked into in order to determine whether reliance on revenue records duty would afford sufficient protection to a transferee under Section 41 of the Act. It may well prudent man, to verify his transferor's title by inspection of records in the registration office.
7. The learned counsel for the respondents cited a judgment of the Division Bench of this Court in Dwarka Dass v. Rangi Lal, (1953) 55 Pun LR 132: (AIR 1953 Punjab 289), in which a view contrary to above Full Bench judgment was expressed and it was held that where the land in dispute is situated within the limits of a Municipality, people ordinari1y would be purchasing and selling land by means of registered sale deeds, and in such cases where there are registered deeds of sale it is not sufficient compliance with the provisions of Section 41 of the Act if a person merely looks at the revenue records and does not go any further. In the aforesaid Full Bench decision of the Lahore High Court in Shamsher Chand's case (AIR 1947 Lahore 147) (supra) there was a difference of opinion between Din Mohammad and Cornelius JJ., on one side and Mahajan, J. on the other as to whether reference to revenue records protects the transferee in the State of Punjab. According to the majority view, in Punjab where oral transfers were permitted by law, inspection of the records in the registration office could not be regarded as sine qua non in relation to. the grant of protection under Section 41 of the Act and the facts and circumstances of each case should be looked into in order to determine whether reliance on the record of rights would afford sufficient protection to a transferee under Section 41 of the Act. The minority view of Mahajan J., however, was that the transferee must also search the record in the registration office to find out whether any transaction by means of a registered deed had been effected by the transferor. This minority view was apparently adopted by the Division Bench of this Court in Dwarka Dass's ease (supra). This, however, cannot mean to upset. the ratio of the majority view of the Full Bench judgment. As held by this Court in Raghu Nath v. Mansa, (1962) 64 Pun LR 230, it appears that the question whether or not the Full Bench decision was binding on the Division Bench, was not raised before the Court and, therefore, this aspect was not adverted to by the Division Bench. Evidently, therefore, the judgment of the Division Bench was given in relation to the facts of that case and it did not lay down a proposition of law contrary to the Full Bench decision. I am of the view that the ratio of aforesaid Full Bench decision still holds good the learned first appellate Court has, therefore, rightly held that in the State of Punjab, when oral transfers were permitted by law, inspection of records in registration office was not sine qua while granting protection to the alienee under Section 41 of the Act. Of course, the facts and circumstances of each case have to be looked into in order to determine whether reliance on revenue record without inspecting the record in the registration office would afford benefit to a transferee under S. 41 of the Act.
8. In the peculiar facts of the instant case, I am in agreement with the learned first appellate Court that there are no circumstances at the time of sale of the land in dispute in favour of respondents Nos. 1 to 5 compelling them to make further enquiry by inspecting the records in the registration office. On the death of Ram Dass his share in the land was inherited by his widow Nand Kaur on the death of Nand Kaur, the share of her husband in the land situated in village Ghuda was mutated by inheritance in favour of defendants Nos. 6 and 7 on November 18, 1951. The revenue record, therefore, indicated that defendants Nos. 6 and 7 were the rightful heirs of Ram Dass. Defendants Nos. 1 to 5 would not have suspected that the plaintiff-appellant or his father had any interest in the share of Ram Dass. Although the appellant's father had purchased the share of Ram Dass on November 18, 1946, but this transaction was never recorded to the revenue authorities. There were no circumstances which could have impelled the transferees to go behind the revenue record and to make further enquiries. According to the record, defendant Nos. 6 and 7 were the heirs of Ram Dass. The vendee-defendants Nos. 1 to 5 had accepted transfer of the share of Ram Dass on the faith of entries in the revenue record. From these circumstances it can be reasonably concluded that the transferees had taken reasonable care to ascertain that the transferors had power to make transfer in their favour and they acted in good faith in accepting the transfer.
9. It was held in Raghu Nath's case (1962-64 Pun LR 230) (supra) that the rule embodied in Section 41 of the Act appears to be an exception to the recognised principle of law that no man can transfer to another a right or title greater than what he himself possesses. The exception embodied in the section is a form of equitable doctrine of estoppel. To attract the rule of estoppel contained in this section it must be shown, inter alia, that the ostensible owner has been enabled to possess the indicia of ownership by the express or implied consent of the real owner, and further that the transferee has, after taking reasonable care to ascertain that the transferor has the power to make the transfer, acted in good faith. Ordinarily, mere inactivity on the part of the person interested without something more is not enough to imply consent. But in certain circumstances where activity is called for, inactivity may legitimately amount to the requisite representation attraction the doctrine of estoppel embodied in the section. In the present case on account of the inactivity of the appellant and his father in referring from reporting the transaction to the revenue authorities for about ten years before the sale in favour of defendants Nos. 1 to 5, manifestly allowed defendants Nos. 6 and 7 to sell the share of Ram Dass on defendants Nos. 1 to 5. Even thereafter the appellant allowed the vendees to redeem the mortgage and to take possession of the land in July 1957. He took no action, a whatsoever, for about 12 years thereafter and then filed the instant suit on January 6, 1969 seeking possession of the share of Ram Dass in the land in dispute on the. basis of the sale deed which had been executed more than 20 years ago on November 18, 1946. This prolonged in activity on the part of the appellant did amount to a representation attracting the doctrine of estoppel envisaged by S. 41.
10. In the circumstances of this case, I find no infirmity in the decision of the first appellate Court granting benefit of Section 41 of the Act to the vendees-defendants Nos. 1 to 5. This appeal is, consequently, dismissed leaving the parties to bear their own costs.
11. Appeal dismissed.