' The dispute relates to the partition of a haveli fully described in the head note of the plaint. Inayat Ullah Khan and others brought a suit for partition of the haveli in dispute against the present appellants which was dismissed by the trial Court vide judgment and decree dated 14th July, 1975.
The plaintiffs appealed against that decree of the trial Court and the learned Additional District Judge, Attock while accepting the same with costs, set aside the judgment and decree of the learned Civil Judge and granted a preliminary decree to the plaintiffs-respondents in accordance with their shares, sending the same to the trial Court for passing a final decree according to law vide judgment dated 18th October, 1979.
2. The defendants-appellants having felt aggrieved, have assailed the correctness of the impugned judgment and decree of the First Appellate Court in this second appeal.
3. I have heard the learned counsel and perused the impugned judgment. He vehemently argued that the appellants are ' the bona fide purchasers of the property in dispute for value without notice as held by the learned trial Court in his judgment and this finding should not have been reversed by the learned Lower Appellate Court in the absence of any evidence in rebuttal. He further contended that there was overwhelming evidence on the record to show that the vendor was in possession of the suit property as its ostensible owner to the utter exclusion of the present respondents through a private arrangement made between the vendor and her brothers. He submitted that the learned Lower Appellate Court has committed illegality in passing the impugned judgment and has ''also failed to consider the evidence of the appellants on record.
4. It is a common case between the parties that the respondents and Mst. Bibi Razia the vendor, inherited the haveli in dispute from their father through inheritance as Muslim law heir along with other residential properties. As the suit property devolved upon the vendor and the respondents through inheritance under Muslim Law therefore all of them will be deemed to be in joint ownership of suit property to the extent of their respective Qur'anic shares. The mere fact that Mst. Bibi Razia vendor was enjoying the exclusive possession of the suit property does not make her an exclusive owner of it and the vendee from her of the entire haveli in dispute cannot become its absolute owner but a co-sharer therein qua her ownership rights in the joint property in the absence of any evidence of partition. Therefore the appellants are in fact vendees of co-sharer who owned undivided share in haveli in dispute in common with others, i,e, the respondents and are clothed with the same rights as the vendor Mst. Bibi Razia had in the property in dispute no more and no less. This view gets support from a dictum laid down by the Supreme Court in Muhammad Muzaffar Khan v. Muhammad Yousaf Khan (1) wherein it has been ruled as under:- "The vendee of co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must 'be regarded as stepping into the shoes of his transferor qua his ownership right in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner in an undivided khata, does not become a co- sharer in the khata."
' In the light of the above discussion, the alleged sale of haveli in suit made in favour of the appellants was in fact valid to the extent of the fractional share owned by the vendor as co-sharer and void ab initio with regard to the rest of the shares jointly owned by respondents in the haveli in dispute. The appellants, therefore, are not entitled to claim the ownership of the entire property in question on the basis of sale-deed executed by Mst. Bibi Razia in excess of her prescribed share.
5. As far as the question of availability of statutory protection under section 41 of the Transfer of Property Act is concerned, that has been rightly decided by the learned lower Appellate Court. For the correct appreciation of this controversial point it would be advantageous to make a reference to section 41 of the Transfer of Property Act and the same is reproduced as under :- "41. Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.'
6. In order to make section 41 applicable; all the four requirements mentioned therein must be complied with simultaneously which may be reproduced below :-
(i) The transferor is the ostensible owner,
(ii) he is so by the consent, express or implied of the real owner,
(iii) the transfer is for consideration, and
(iv) the transferee has acted in good faith taking reasonable care to ascertain that the transferor had power to transfer.
(1) PLD 1959 SC (Pak.) 9
7. If any of these ingredients be wanting, the transferee will not be eligible to seek the protection contained in section 41 of the Transfer of Property Act.
8. In the instant case all the four requirements mentioned above have not been complied with and the appellants have miserably failed to establish that Mst. Bibi Razia was an ostensible owner of the have in dispute with the express or implied consent of her brothers, the co-owners. The learned trial Court while discussing this aspect of the case has referred to the depositions made by D. W. 1 and D. W. 4 which indicate that the appellants were fully alive of the fact of moistness of the property in dispute at the time of sale and were rightly held to be ineligible to the protection contained under section 41 of the Transfer of Property Act by the learned Lower Appellate Court. The learned trial Court erroneously attached great significance to original sale-deed Exh. D.I. Executed by Mst. Bibi Razia defendant No, 7 in favour of appellants relating to the full haveli in dispute. The learned trial Court failed to apply its mind while deciding issue No, 6 to this legal proposition that a document binds the parties thereto and does not adversely affect the rights of strangers to it. This document admittedly was neither executed on behalf of the respondents nor it came into being with their consent. Mst. Bibi Razia vendor while appearing as a, witness clearly stated that she had never sold the entire property in question but her own share out of the joint haveli in dispute to appellants.
Therefore in view of the established facts on the record the present appellants became owners in the haven in dispute to the extent of the right of Mst. Bibi Razia vendor enjoyed by her along with other co-owner. Having given my careful consideration to the finding of the learned Lower Appellate Court I am of the view that it represents the true appraisal of law on the point which has been judicially recognized in the decision of the Supreme Court referred to above. Facing this, the learned counsel for the appellants raised a plea that the suit was for partial partition and as such was not tenable in the eye of law and the plaintiffs respondents should have been non-suited on that account. I am afraid this contention has no force. This plea was specifically taken by the defendants-appellants in their written statement but the same not pressed before the learned trial Court. Again it was never agitated before the c learned lower Appellate Court in support of the decree of the dismissal of the suit. The appellants are now precluded from taking this plea at this stage. Moreover this objection may be repelled on another ground too. The appellants admittedly purchased a fractional of the suit property to the extent of the share of their vendor namely Mst.
Bibi Razia. They do not own any share in any other property along with present respondents. The haveli in dispute is the only common property between the respondents as well as the appellants and therefore they are not entitled to raise the plea of partial partition as no other property was the subject matter of partition between the appellants and the respondents.
9. After hearing at some length I have not been able to discover any misreading or ignoring of the relevant evidence, nor is there any question of admission of inadmissible documents. Such being the case, I have no option except to say that the findings of fact arrived at by the learned lower Appellate Court must hold good in the present second appeal. The appeal has no force and the same is dismissed in limine.