JADU NATH ACHARJYA Vs. TARAK CHANDRA CHATTERJEE

JUDGEMENT

(1.) This is an appeal by the defendant No. 2. The suit was brought by the plaintiff to recover khas possession or, in the alternative, compensation from the defendants Nos. 1 and 2. The defendant No. 2 is the purchaser from the defendant No. 1. The defendant No. I purchased the property in suit in the month of November 1897 and, having held it for eight years, he sold it on the 28th November 1905 to the defendant No. 2 for the sum of Rs. 1,200. In the meantime before the sale to the defendant No. 2 the defendant No. 1 had borrowed certain moneys on a mortgage of the property and those moneys were paid out of the purchase- money by the defendant No. 2 and the evidence is conclusive that the defendant No. 2 paid the balance of the purchase-money to the defendant No. 1.

(2.) In these circumstances, it looks at the first blush that the title is a fairly clear one, so far as the defendant No. 2 is concerned. But it appears from the finding of the learned Judge--and that finding we do not see any reason to dissent from--that the purchase by the, defendant No. I was tainted with fraud. The defendant No. 1 purchased from the mother and guardian of one Taruck Chunder Chuckerbutty, who was then an infant, and leave of the Court according to the view of the learned Judge was obtained by the fraud of the defendant No. 1. However, the Judge did, in, fact, grant leave to the guardian to sell the property and the property was, in fact, sold, at any rate the evidence of defendant No. 1 shows, at far more than the amount at which the Court authorized the guardian to sell. It turns out now in the view of the learned Judge of the Court below that that transaction was a fraudulent one and the learned Judge has decreed the suit as against the second defendant. The second defendant is a man apparently of respectability, he having been once a servant of the Government of India drawing a pay of Rs. 800 a month and apparently having served his full time retired on pension and having purchased this piece of land has erected a house on it. The learned Judge in finding that this gentleman had either express or constructive notice of the fraud, ought to have required some evidence in support of that. The learned Judge dealt with the case in this way. He expressed a doubt as to the bond fide nature of the transaction and thought that the defendant No. 1 had done all these in order to secure the property, As regards the question whether the defendant No. 2 was a bona fide purchaser without notice, he said that he could not find for him. The learned Judge was not entitled to find that a person who had paid money for the property, purchased it with notice of the fraud unless there was evidence fixing the subsequent purchaser with notice of the fraud, and the only ground for the learned Judge s fixing the second defendant with notice of the fraud is that the property was sold by a female as the guardian of her minor son. Ladies in this country, whether pardanashin or otherwise, are under no such disability that they cannot execute any document. As a matter of fact a recent decision of the Privy Council See Kali Bakhsh Singh v. Ram Gopal Singh, 21 Ind. Cas. 985 : 36 A. 81 at p. 92 : 18 C.W.N. 282 : 16 O.C. 878 : (1914) M.W.N. 112 : 12 A.L.J. 115 : 15 M.L.T. 130 : 19 C.L.J. 172 : 1 O.L.J. 67 : 26 M.L.J. 121 : 16 Bom. L.R. 147 (P.C.)--Ed in an appeal from a judgment of the Allahabad High Court shows that pardanashin ladies in this country, although there are certain rules established by the Court for their guidance, are under no such incapacity.

(3.) The second ground put forward by the learned Vakil for the respondent is much more dangerous and that is that, although there was an order of the Court for the sale of the property, the subsequent purchaser ought to have inquired whether any fraud had been committed. I have not looked into the Transfer of Property Act to see whether there is a corresponding section to the English Conveyancing Act protecting persons who purchase properties under orders of the Court, but under the Conveyancing Act the law and the established rule is that, when a person purchases a property under the authority of the Court, he gets a good title unless he knows that fraud has, been practised on the Court. That the guardian of the infant in this case was a female who obtained leave of the Court to sell the property and that, therefore, fraud was practised on the Court, I have never heard it before. In my opinion, the learned Judge came to a wrong conclusion when he held that the defendant No. 2 was not a bona fide purchaser for value without notice of the fraud; and, in that view, the decree of the Court below so far as it decrees khas possession against the defendant No. 2 must be set aside and the present appeal allowed with costs both here and in the Court below. Richardson, J.