BIBI SHAMUNNISSA Vs. GURCHARAN KOERI

JUDGEMENT

(1.) This Second Appeal is by the defendant. The plaintiff- respondents instituted Title suit No. 79 of 1970 before the Munsif, Chapra, seeking decree of redemption of the Zarpeshgi deed dated 28-7-16 (at some places the date of the deed is mentioned as 28-7-17) executed by their ancestor Gopal Mahto in favour of Akram Hussain for Rs. 200/-. Akram Hussain instituted Mortgage suit (T.S. No. 47 of 1933) and got the land auction sold in Execution Case No. 898 of 1935. Akram Hussain himself purchased the land on 12-2-36. His son Ahmad Hussain latter sold it to the defendant in 1948. The plaintiffs tendered the amount of zarpeshgi to the defendant and on refusal deposited the same in Court as required under Section 83 of the Transfer of Property Act. On the defendant's refusal to accept the deposit they instituted the suit. According to the plaintiffs, the decree in the mortgage suit (Suit No. 47 of 1933) was obtained fraudulently by suppressing material facts and playing fraud upon the Court. The decree and the auction purchase being fraudulent, the subsequent sale by the auction-purchaser did not confer valid title upon the defendant. According to the defendant, she is a bona fide purchaser for value and, therefore, whatever be the nature of the decree in Mortgage Suit No. 47 of 1933 and the auction purchase, her right, title and interest in the land should not be disturbed.

(2.) The trial Court come to the conclusion that both the ex pane decree in Mortgage Suit No. 47 of 1933 and the auction sale were fraudulent but the act of fraud committed by Akram Hussain and others could not affect in any way the rights of the purchaser i.e. the defendant as she was neither in collusion with Hussain and others nor was aware of the fraud. Accordingly, the Court declined to grant decree of redemption in favour of the plaintiffs. On appeal by the plaintiffs the appellate Court confirmed the finding as to the fraudulent nature of the decree and auction sale. It held that the defendant did not acquire any valid title and interest in the land by virtue of the purchase. In coming to the said conclusion the appellate Court also held that no delivery of possession of the land was effected pursuant to the auction purchase and the sale certificate had remained a paper transaction.

(3.) This appeal was admitted on 12-8-83 on the following questions of law: -