RAM JIAI Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) This writ petition is against the judgment of the Deputy Director of Consolidation, Mainpuri, dated 28- 11-1973, whereby the revision petition filed by the contesting opposite party No. 2 and 3, namely Jadon Singh and Munshi Singh, in the present writ petition, was allowed. The disputed Khata in the present writ petition is 193. Opposite party No. 4 Smt. Saraswati had executed a sale deed in favour of the contesting oppo site parties No. 2 and 3 mentioned above in respect of her whole share. The petitioner had claimed a share in the disputed Khata being one of the sisters of Pultoo, husband of Smt. Baharu. Her claim was denied by the contesting opposite parties, namely transferees of Smt. Saraswati. The Consolidation Officer and the Settlement Officer of Consolidation had held that the petitioner was one of the daughters of Gopal and was entitled to a share in the disputed Khata. The appellate authority had negatived the claim of the contesting opposite parties and had not given them benefit under Sec. 41 of the Transfer of Property Act (though wrongly shown as U. P. Tenancy Act ). The appel late authority has recorded the following findings- "the appellants want to take the advantage of Sec. 41 of the Transfer of Property Act (wrongly mentioned as U. P. Tenancy Act ). From the pedigree it is clear that they are closely related with Bhoopal, thus it can not be expected that they did not know that Bhoopal had two daughters. Thus they cannot take the advantage of Sec. 41. The C. O. has rightly ordered the name of Smt. Ram Jiai and Smt. Saraswati to be recorded in place of Smt. Bataso. The order of the C. O. needs no interference. " Aggrieved by the judgment of the appellant's authority the contesting opposite parties Nos. 2 and 3 in the present writ petition had preferred a revi sion which has been allowed by the revisional Court through its impugned judgment dated 28-11-73 and the revisional Court has recorded the following findings : "revisionist had claimed that they have taken the land from Smt. Saraswati as bonafide purchaser. Smt. Saraswati was recorded as Bhumi-dhar of the land. She has transferred the land in favour of the revisionist Munshi and Jodh Singh. The contention of the revisionist that they were the bonafide purchaser is correct and they should be given benefit of Sec. 41 of the Transfer of Property Act. Smt. Ram Jiai can now claim compensation for the sale from Smt. Saraswati who has transferred his/her whole share in favour of the revisionist. The Bhumidhari Sanad is in favour of Smt. Saraswati alone and therefore at the time of transfer, Smt. Saraswati rightly transferred the land in favour of the revisionist. To this extent the revision can be allowed. The learned counsel for the petitioner has contended before me that on the finding recorded by the revisional Court that the petitioner was one of the sisters of Puttoo she was fully entitled to a share in the disputed Khata and her claim was rightly accepted by the first two courts and the revisional court has patently erred in giving benefit of Sec. 41 of the Transfer of Property Act to the contesting opposite parties No. 2 and 3 in the present case.- The learned counsel for the contesting opposite parties has tried to refute the contentions raised on behalf of the petitioner and has submitted that since Smt. Saraswati was only recorded over the disputed Khata and that she had acquired Bhumidhari right in the disputed land. Hence the contesting oppo site parties are bonafide purchasers and were rightly given benefit of Sec. 41 of the Transfer of Property Act. I have examined the contentions raised on behalf of the parties. In my opinion the revisional Court has patently erred in giving benefit of Sec. 41 of the Transfer of Property Act to the contesting opposite parties. The appellate authority has rightly observed in its judgment that the transferees being collate rals of Puttoo knew that the petitioner was his sister and knowing this fact they had purchased the property from Smt. Saraswati hence they were not entitled to the benefit of Sec. 41 of the Transfer of Property Act. It is well known that by merely having a Bhumidhari Sanad one does not become Bhumidhar of the land in respect of which Bhumidbari Sanad was obtained if he or she was not sirdar of the whole area. In the present case, when the petitioner Smt. Ram Jiyai was a sharer in the disputed Khata. Smt. Saraswati was not Sirdar of the whole share and in this view of the matter she was not Bhumidhar of the area transferred by her. If the contesting opposite partks had made genuine enquiry they would have come to know about the correct situation and in my opinion the appellate court has rightly suggested that the transferees were not bonafide purchasers in the circumstances of the present case as they knew the correct state of affairs that the petitioner was one of the sisters of Puttoo Lal. The revisional Court has patently erred in not addressing itself to this aspect of the matter, It has only recognized the claim of the contesting opposite parties on the ground that Smt. Saraswati was recorded as Bhumidhar of the disputed land and had a Bhumidhari Sanad in her favour. To my mind mere posses sion of a Bhumidhari Sanad or Smt. Saraswati being recorded as Bhumidhar of the disputed land is not enough to give benefit of Sec. 41 of the Transfer of Property Act to the contesting opposite parties No. 2 and 3 in the present case. In Suraj Ratan Thirani and others v. Azamabad Tea Co. Ltd. and others (A. I. R. 1965 S. C. 295) vide para 16, it has been indicated that Sec. 41 of the Transfer of Property Act could be attacted when the transferee proved that the transferor was the ostensible owner, of the property with the consent of his co-sharers and besides that the transferee took reasonble care to ascertain whether the transferor had power to make a transfer of full 16 Annas interest. Mere fact that the name of the transferor was recorded in revenue records and that he managed the common property, it did not stand in the way of the co- sharers to claim their interest in the transferred property. In the present case it was denied that the petitioner was sister of Puttoo Lal and when it has been found by the relevant authorities that the petitioner was sister of Puttoo Lal, it was incumbent upon the revisional Court to find out whether any reasonable enquiry had been made by the contesting opposite party while purchasing property from Smt. Saraswati. The appellate authority has not given benefit of Sec. 41 of the Transfer of Property Act to the contesting opposite parties No. 2 and 3 in the present writ petition on the ground that the transferees, namely the contesting opposite parties No. 2 and 3 knew that the present petitioner was sister of their transfe ror and still they purchased the property. The revisional Court has not at all addressed itself to this aspect of the matter. In my opinion the impugned judg ment in favour of the contesting opposite parties No. 2 and 3 is patently erro neous and the revisional Court has failed to examine an important aspect of the matter whether the transferees had made any reasonable enquiry before purchasing the property and without adverting to this aspect of the matter the revisional Court has patently erred in holding the transferees, namely, contes ting opposite parties No. 2 and 3 as bonafide purchasers. It has not been established in the present case that Smt. Saraswati was ostensible owner of the property purchased by opposite parties No. 2 and 3 with the consent of the present petitioner. The revisional court has failed to exa mine essential ingredients indicated in Sec. 41 of the Transfer of Property Act, hence its judgment deserves to be quashed. In the result, the writ petition succeeds and the impugned judgment of the revisional Court dated 28-11- 1973 is hereby quashed and the revisional court is directed to hear the revision petition afresh and decide the claims of the parties strictly in accordance with law. Parties are directed to bear their own costs. .