This is a second appeal where plaintiffs challenged a sale deed executed by their father. The Court dismissed the appeal, holding that the appellants failed to prove fraud regarding the sale and that the respondents qualified as bonafide purchasers under Section 41 of the Transfer of Property Act.
Second appeal dismissed; impugned sale deed upheld.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 2082 of 2011(O&M) Date of Decision: 2.3.2012.
Buta Singh & another
--Appellants
Versus
Smt. Santosh & another
--Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:Mr. G.S. Gandhi, Advocate for the appellants.
TEJINDER SINGH DHINDSA.J
The plaintiffs-appellants are in second appeal before this Court having remained unsuccessful in both the courts below.
Briefly noted, the plaintiffs-appellants filed a suit for declaration to the effect that land measuring 20 kanals 0 marla situated at village Kukrawali, Tehsil & Distt. Fatehabad is in their ownership on the basis of a decree passed in suit no.1403 of 1990 titled as Buta Singh Vs. Dalip Singh decided on 25.10.1990. The plaintiffs-appellants stated that they were entitled to get their names recorded in the revenue record on the basis of such decree. Sale deed no. 2938 dated 20.10.2003 executed by defendant no.2, Dalip Singh, their father in favour of defendant no.1 was null and void and the mutation sanctioned on the basis of such sale deed is also liable to be set aside. A consequential relief of permanent injunction restraining defendants no.1 from alienating the suit property on the basis of the impugned sale deed was also prayed for. It was pleaded that Dalip Singh, defendant no.2 was owner in possession of the suit property. In February, 1990, defendant no.2 had transferred the suit property in favour of the plaintiffs as also his wife Amar Kaur for which a civil suit titled as Buta
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Singh Vs. Dalip Singh had been filed and a decree dated 25.10.1990 had been obtained. The subsequent sale deed dated 20.10.2003 executed by their father, defendant no.2 in favour of defendant no.1 was stated to be illegal, null and void having been obtained through misrepresentation, fraud and being without consideration. It was stated that their father, defendant no.2 was a simple person and had not been keeping good health and as such advantage had been taken of his ill health by defendant no.1.
Defendant no.1 contested the suit in terms of filing a written statement stating that the consideration of Rs.3,50,000/- had been paid. Such sale deed had been executed in the presence of the plaintiffs and it was thereafter that the sale deed dated 20.10.2003 had been executed. It was stated that the plaintiffs had never got the requisite entry in respect of the alleged decree dated 25.10.1990 in the revenue records and as such the defendants were bonafide purchasers for valuable consideration. Defendant no.2, father of the plaintiffs also filed a written statement admitting the fact of having sold the suit property to defendant no.1 upon having received the sale consideration. It is stated that on account of his ill health and advanced age, he could not recollect the suffering of any decree in favour of the plaintiffs. It was admitted by defendant no.2 that any such decree, even if, passed had never been incorporated in the revenue record.
Upon the pleadings of the parties, following issues were framed by the Trial Court:-
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The Trial Court dismissed the suit filed by the plaintiffs and
even the civil appeal preferred by them has met the same fate in terms of passing of the impugned judgement dated 10.1.2011 by the First Appellate Court.
I have heard Mr. G.S. Gandhi, learned counsel appearing for the appellants at length.
Learned counsel would argue that the findings of the courts below are perverse and based on misreading and mis-appreciation of evidence. It was strenuously argued that the plea of fraud and misrepresentation raised by the plaintiffs-appellants as regards the sale deeds executed in favour of the respondents by their father has not been dealt with by the courts below. Learned counsel would place reliance on judgement reported as AIR 1956 PEPSU 17 to contend that it is not always possible to prove fraud by any direct evidence and the same may have to be inferred through circumstances. On such account, learned counsel contends that both the courts below have proceeded erroneously.
The admitted position of fact is that Dalip Singh, defendant no.2 was the original owner in possession of the suit property. Civil Suit No.1403 of 1990 titled as Buta Singh Vs. Dalip Singh had been decided vide judgement dated 25.10.1990 (Ex.P-1) and decree sheet (Ex.P-2), wherein a consent decree had been passed. It is also the admitted position of fact that such consent decree had never been reflected in any revenue
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record and no mutation on the basis thereof had been sanctioned. The sale deed dated 20.10.2003 (Ex.D-16) has been executed by Dalip Singh, defendant no.2 in favour of defendant no.1. A bald averment to state that such sale deeds have been executed by way of misrepresentation and fraud would require to be corroborated and proved on record by leading cogent and relevant evidence on record. It was incumbent upon the plaintiffsappellants to have proved the factum of misrepresentation and fraud beyond reasonable doubt. To the contrary, all the attendant circumstances are in fact in favour of the sale deeds having been executed validly and for valuable consideration. Firstly, no reasoning has come forth from the plaintiffs-appellants as to why the consent decree suffered in the year 1990 had not been reflected in the revenue record at any point of time and in any case not till 2004 when the sale deed had been executed by their father in the names of defendant no.1. Secondly, defendant no.2, Dalip Singh, father of the plaintiffs-appellants admitted that he had received the requisite consideration and it was thereupon that the sale deed had been got registered in favour of defendant no.1. That apart, even after the consent decree dated 25.10.1990, Dalip Singh, father of the plaintiffs-appellants had obtained a loan from the Kshetriya Gramin Bank after mortgaging his land vide Rapat No.305 dated 4.5.1994. Even the share of Dalip Singh's wife namely Amar Kaur was alienated by her Power of Attorney namely Buta Singh i.e the plaintiff-appellant himself. Ex.D-33 was the loan agreement, whereby a loan was taken from Fatehabad Primary Cooperative Agricultural & Rural Development Bank by the plaintiff-appellant Buta Singh by mortgaging the land of Dalip Singh.
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The entire evidence would clearly lead to the inference that the consent decree dated 25.10.1990 had never been acted upon. As such, even though on first principle, the argument raised by the learned counsel would sound attractive that the factum of fraud may have to be inferred from the attendant circumstances but adverting to the facts in hand no such inference of any fraud and misrepresentation having been played by defendant no.1 upon the father of the plaintiff-appellant Dalip Singh can be inferred.
Another vital aspect of the matter would be that defendant no.1 would be entitled to the protection of Section 41 of the Transfer of Property Act.
The scope of protection of Section 41 of the Transfer of Property Act in favour of a bonafide purchaser was considered by Hon'ble the Supreme Court in case of Hardev Singh Vs. Gurmail Singh (Dead) by Lrs. reported as 2007(2) SCC 404 , wherein it has been observed as under:-
“9. Application of Section 41 of the Act is based on the law of estopped to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained, he could not question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.
10. The ingredients of Section 41 of the Act are:
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reasonable care to ascertain that the transferor
had power to transfer.”
In terms of Section 41, Dalip Singh was admittedly the ostensible owner of the suit property. The impugned sale deed had been executed for consideration and it would have to be construed that the transferee i.e. defendant no.1 had acted in good faith and had taken reasonable care so as to ascertain that the transferor i.e. Dalip Singh had the power to transfer in as much as the entries in the revenue record were clearly in the name of Dalip Singh.
In the light of the reasons recorded above, I find no perversity in the findings of the courts below. The present second appeal must fail as it does not raise any question of law much less a substantial question of law. The present second appeal is, accordingly, dismissed. Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE
2.3.2012. lucky
Whether to be reported? No.
2 issues framed by the court
Whether the plea of fraud and misrepresentation regarding the sale deed was proved beyond reasonable doubt by the appellants.
Whether the respondent defendants are protected as bonafide purchasers under Section 41 of the Transfer of Property Act.
Colour shows how this judgement treated each authority
AIR 1956 PEPSU 17Referred¶28
Hardev Singh Vs. Gurmail Singh (Dead) by Lrs.Referred¶35
2007(2) SCC 404 · Who else cites this
1 provisions across 1 enactments
Buta Singh
Smt. Santosh
Tejinder Singh Dhindsa
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
