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Niras Purbe and anr. Vs. Musammat Tetri PasIn and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.82
AppellantNiras Purbe and anr.
RespondentMusammat Tetri PasIn and ors.
Excerpt:
transfer of property act (iv of 1882), section 41 - wife selling husband's property during his absence--wife entered as owner--proper inquiry, effect of. - .....the property. on whatever date he went on pilgrimage, it was certainly on 4th july 1901 when his wife musammat chulhya sold the property to defendants nos. 1 to 4, the plaintiff says that that did not operate as a sale to those defendants, inasmuch as his wife had no right to convey; and his case as made before us is that he should at least be allowed to redeem the mortgage which was passed to the hands of the defendants by reason of their having paid it off some five years after their purchase. this contention, however, is of no avail, having regard to the finding of the judge on the evidence which was given in the case. it was in evidence that the defendant chhathoo pasi enquired at the raj sherista and found that musammat chulhya's name was registered in the sherista and that the.....
Judgment:

1. This is an appeal by the plaintiff whose suit has been dismissed by the District Judge, reversing the decree of the Munsif. The plaintiff was possessed of a piece of land in Darbhanga town. His case was that he left home on pilgrimage in 1901 and that his wife remained in possession of the land, but that on his return from pilgrimage in 1911 he found that his wife had conveyed the property to the defendants Nos. 1 to 4 on 25th July 1901 and had died in June 1902. He claimed to recover the land from these defendants on the ground that his wife had no power to sell to them. On the finding of fact, however, arrived at by the learned District Judge, it appears that the plaintiff has really no case. He admits that he allowed his wife to mortgage the property for Rs. 115 in 1894 in favour of Doman Panjiar. The plaintiff's case is that that mortgage was executed before his departure on pilgrimage, and that that was done by his consent. He, therefore, at that time expressly consented to his wife acting as the ostensible owner of the property. On whatever date he went on pilgrimage, it was certainly on 4th July 1901 when his wife Musammat Chulhya sold the property to defendants Nos. 1 to 4, The plaintiff says that that did not operate as a sale to those defendants, inasmuch as his wife had no right to convey; and his case as made before us is that he should at least be allowed to redeem the mortgage which was passed to the hands of the defendants by reason of their having paid it off some five years after their purchase. This contention, however, is of no avail, having regard to the finding of the Judge on the evidence which was given in the case. It was in evidence that the defendant Chhathoo Pasi enquired at the Raj sherista and found that Musammat Chulhya's name was registered in the sherista and that the Raj patwari also told him that her name was so entered. It cannot, therefore, be said that the requirements of the proviso to Section 41 of the Transfer of Property Act have not been carried out in this case. The transferee made enquiries at the proper quarter to ascertain whether Musammat Chulhya had power to make that transfer. The Judge no doubt had this evidence in his mind when he said that the defendant was, in his opinion, a bona fide purchaser for value, without notice, actual or constructive, of any defect in his vendor's title. The Judge may not be quite correct in having said that the defendant was not bound to look beyond the mortgage-bond in order to ascertain whether Musammat Chulhya was the real owner of the property or not. As a matter of fact we find that the defendant did not stop there, but did make further enquiries. No doubt the Judge had this in his mind when he arrived at the finding. We must accept that finding as correct. The appeal must, therefore, be dismissed with costs.


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