JITENDRA SINGH NAHAR Vs. RAKHAHARI CHATTERJEE

JUDGEMENT

(1.) I may depart from the practice of making discussion and I desire to say that the judgment prepared by my learned brother seems to me sufficient to concur in the opinion expressed by him. It would be lamentable if the effect is not given to the plain language of Sec. 41 of the Transfer of Property Act in the facts of this case, as there is full scope for invoking the rule of estoppel contained therein.

(2.) Sec. 41, founded on the dictum of the judicial Committee in Ramcoomar Koondoo v/s. MacQueen, (1872) L.R. IndAp Supp. 40 :, 18 W.R. 166, followed by several decisions, noticed by my learned brother, is an exception to the general rule that a person cannot confer a better title than he has. The onus is on the transferee to show that the transferor was the ostensible owner of the property and that he had, after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. In this appeal Rakhahari was put forward by his father Akshay Kumar, the secret title holder, to be the ostensible owner of the property. The Appellants took reasonable care to ascertain that Rakhahari had power to make the transfer. The object, machinery and the conditions in Sec. 41 are fulfilled in this case. When the bona fide of Akshay Kumar is jealously scrutinized, one cannot but be in the borrowed language, notoriously partial to the Appellants. It must not be forgotten that these types of cases afford facilities for perpetration of fraud, and I think, Akshay should not be allowed to show his 'hidden hand' to retain the property.

(3.) With the sanction of Sec. 41 and the principles laid down in the decision of Baidya Nath Dutt v/s. Alef Jan Bibi : (1922) 36 C.L.J. 9 : A.I.R. 1923 Cal. 240, Gholam Siddique Khan v/s. Jogendra Nath Mitra, (1926) 43 C.L.J. 452 : : 31 C.W.N. 205, Macneil and Co. v/s. Saroda Sundari Debi, (1928) 48 C.L.J. 374 :, 33 C.W.N. 526, this appeal should succeed. In the following cases, viz., Ballu Mal v/s. Ram Kishun : A.I.R. 1921 All. 311, Kasturi Bai v/s. Baliram A.I.R. 1923 Nag. 15, Sheogobind v/s. Anwar Ali : A.I.R. 1929 Pat. 305 : 10 P.L.T. 254, Shamsher Chand v/s. Bakshi Mehr Chand, A.I.R. 1947 Lah. 147 (F.B.), Catholic Mission v/s. Subbanna : A.I.R. 1948 Mad. 320, Chandi Prosad Ganguly v/s. Gadadhar Singha Roy, A.I.R. 1949 Cal. 666, Sadiq Hussein v/s. Co -operative Central Bank, A.I.R. 1952 Nag. 106, the conditions of Sec. 41 are not satisfied and, as such, they do not support the Respondents. The following Supreme Court decisions, viz., Phool Kuer v/s. Pem Kuer : (1952) S.C.R. 793 : A.I.R. 1952 S.C. 207, R.J. Kadam v/s. State of Bombay : (1963) Supp. 1 S.C.R. 322 : A.I.R. 1963 S.C. 827, Gurbaksh Singh v/s. Nikka Singh : (1963) Supp. 1 S.C.R. 55 (60) : A.I.R. 1963 S.C. 1917, Suraj Ratan Thirani v/s. Azamabad Tea Co. : (1964) 6 S.C.R. 192 (201, 202) : A.I.R. 1965 S.C. 205 do not also go against the Appellants.