KUNJU MOHAMMED ABDULLA Vs. NARAYANAN CHELLAMMA

JUDGEMENT

(1.) The 1st defendant is the appellant. The plaintiffs sued for cancellation of a sale deed Ext. E dated 20-8-1116 executed by their mother the 2nd defendant in favour of the 1st defendant. The property sold originally belonged to the deceased Palpan Narayanan, husband of the 2nd defendant and father of the plaintiffs and additional 4th defendant He conveyed the property to his wife under Ext. A or III dated 5-3-1108. The plaintiffs case is that Ext. III was a sham transaction and that it was executed to screen the property from the reach of a creditor of Palpan Narayanan who had instituted a suit against him in the Munsiffs Court of Attingal three days before the execution of the deed. Although Palpan Narayanan had properties at Nedumangad, the plaint item was the only property owned by him within the jurisdiction of that court. Palpan Narayanan died before the execution of Ext. E. It was alleged by the plaintiffs that the 2nd defendant had no right to the property and that she was incompetent to execute the sale deed. The 1st defendant contested. He contended that the sale by Palpan Narayanan to his wife was a valid transaction and that the latter was competent to sell the property. It was also pleaded that the 1st defendant was a bona fide purchaser for value without notice of any defect in the title of his vendor and that the 2nd defendant having been allowed to remain as the ostensible owner, the plaintiffs were not entitled to question the sale. The courts below have concurrently found that Ext. E was a sham transaction. It was also found by the lower appellate court that the plaintiffs most of whom were minors could not be taken to have consented to the ostensible ownership of the 2nd defendant. The Second Appeal is from concurrent decrees allowing the suit.

(2.) I do not see any reason to differ from the finding of the courts below regarding the nature of the conveyance executed by Palpan Narayanan to his wife. The circumstances under which the deed was executed such as the near relationship of the parties, the inadequacy of consideration, the fact that this was the only property owned by Palpan Narayanan within the jurisdiction of Attingal Munsiffs Court where a suit for money was filed against him three days prior to the execution of the deed and an application for attachment before judgment of this property made, have been relied on by the courts below in arriving at this finding.

(3.) The appellant has a further contention that the 2nd defendant having been allowed to remain as ostensible owner, the transaction must be protected as he is a bona fide purchaser for value. Reliance is placed on S.41 of the Transfer of Property Act in support of this contention. It cannot be denied that the appellant paid consideration for the sale. Part of the consideration was payable towards satisfaction of the decree passed against Palpan Narayanan in the suit referred to above and this was paid by the appellant as seen from Ext. F copy of the execution diary in that case. The question remains whether he purchased the property from the 2nd defendant after taking reasonable care to ascertain that she had power to make the transfer and whether he acted in good faith. In the nature of the transaction there was nothing to create a suspicion in his mind that the 2nd defendant was not the real owner of the property. The property was conveyed to her in 1108 by her husband and she obtained mutation of name in revenue records. The original sale deed was missing and the 2nd defendant and her son Natesan the 4th defendant represented that the original deed was lost. The 4th defendant obtained a copy of the same from the Sub-Registrars Office and handed over the same to the 1st defendant. If ownership continued with Palpan Narayanan, the 4th defendant also would have been entitled to the property after his death. The fact that he obtained a copy of the original deed and gave it to the 1st defendant is therefore a very material circumstance supporting the defence case. The 4th defendant also attested the sale deed. There was thus no reason for the 1st defendant to think that the 2nd defendant was not the real owner or that her children had any right to the property. The 1st plaintiff and her husband were no doubt residing in the property at that time but in view of the fact that the mortgage right vested in the husbands father, there was nothing to put the 1st defendant on enquiry regarding title to the property. The sale to the 2nd defendant had been allowed to remain unquestioned for nearly 8 years by Palpan Narayanan and afterwards by his children. In these circumstances it cannot be said that the 1st defendant failed to take reasonable care.