JUDGMENTFAZAL KARIM, J.--This appeal by the Objector, Saadi Asmatullah, is under section 39 (11) of the Industrial Development Bank of Pakistan Ordinance, 1961 ( to be referred to as the Ordinance ); it is directed against the order of the District Judge, Lahore, dated 3-6-1992, whereby the appellant's objections to the attachment of the property in question were rejected.
2. The dispute relates to Khasra No. 4741/5.4 situate in Mauza Aroop, Tehsil and District Gujranwala.
It belonged to the second respondent, Ghulam Nabi Sikandar, who had obtained a loan of Rs.
4,57000- from the first respondent, Industrial Development Bank on 19-2-1976. It appeals that an equitable mortgage of the properties mentioned in the Schedule to a document of that date (Ex.
RWL/A). Including Khasra No. 4741/5.4, measuring 2 kanals, was created for securing repayment of the loan and the title deeds of the said properties were deposited with the bank. The second respondent failed to repay the loan and the bank became entitled to require the immediate payment of the loan within the meaning of section 39 of the Ordinance. Accordingly, they made an application under that section to the learned District Judge for the recovery of Rs. 20,74,098.93 as on 31-3-1988. That application was made on 19-6-1988. An interim order attaching Khasra No. 4741/5.4, was made and the said property was attached on 30-10-1988.
3. The petitioner filed an objection petition; his claim was that out of Khasra No. 4741/5.4, measuring 2 kanals, one Tousif Ahmad, had by means of a registered sale-deed dated 12-12-1987, purchased 1 kanal from the second respondent; that he had in good faith and for consideration purchased the same from the said Tousif Ahmad by means of a deed of sale dated 8-4-1990, the sale price, according to the sale-deed, being rupees one lac, that after purchasing the land, he had demolished the existing construction and had raised a new construction thereon and nobody had objected to it. In other words, his case was that he was a bona fide purchaser for value and he was entitled to have the land released from attachment.
4. The objection petition was opposed by the bank and on the parties leadings, the following issues were formulated and tried:-(1) Whether the objector is bona fide purchaser for consideration of the ' property in question?(2) Whether the property in question had been mortgaged by the original owner with the bank? If so with what effect?(3) Relief. -The parties evidence before the learned District Judge consisted of the testimony of the appellant, Saadi Asmatullah, on the one hand and Muhammad Aslam Malik, Assistant Vice-President of the Bank, on the other hand. The appellant also placed on record a copy of the sale-deed dated 12-12-1987 (Ex.Pl).. Whereby the second respondent had sold the land in dispute the Tausif Ahmad and a copy of the sale deed dated 4-8- 1990, whereby Tausif Ahmad, had sold the land for rupees one lac to the appellant. On behalf of the bank, two documents were produced, they were EX.RW.1/A, which has already been referred to and Ex.RW.1/B, whereby Siddique Muhammad etc. Had sold Khasra No. 4741/5.4 measuring 2 kanals to the second respondent on 8-12-1975.
5. In dismissing the appellant's objections, the learned District Judge was content to say that the documents produced by the appellant "had come into being after the property already stood mortgaged with the Bank", and that "the objector cannot claim benefit under section 41 of the Transfer of Property Act". In his view, the appellant could "advance claim only against the person from whom he had purchased and not against the decree-holder Bank, to whom the property already stood mortgaged long before the alleged purchase."
6. Section 41 of the Transfer of the Property Act is founded upon a principle of natural equity and enacts; "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 transfer or 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." The question requiring determination, therefore, was whether the appellant had, after taking reasonable care to ascertain that his transferor, Tausif Ahmed, had power to make the transfer, had acted in good faith. It is plain that merely because the sale-deeds dated 12-12-1987 and 4-8-1990 "had come into being after the- property already stood mortgaged with the Bank" was itself no ground for holding that the appellant was not a transferee in good faith if he had otherwise been able to prove that he had taken reasonable care to ascertain that his transferor, Tausif Ahmad, had power to make the transfer and that he had acted in good faith.
7. The appellant testified that he had purchased the land for consideration from Tausif Ahmad; that he learnt of the attachment of the property a day before the objection petition; that before purchasing the land from Tausif Ahmad, he had taken all reasonable care to ascertain that Tausif Ahmad had the power to transfer and had in that connection consulted the Revenue Record and the record of the register office. He added that the land in question7Jm tttriutf Awaa V. AJNM BxItM (Cfc. Mashir AkMMl Kbm, J)stood in the name of Tausif Ahmad; that ifter purchasing it, he had raised new construction and nobody had objected to it. Mr. Mohammad Asiam Malik, the only witness for the bank admitted that the mortgage in favour of the bank was not registered; that the bank had not informed the revenue officials or the Excise and Taxation Department of the equitable mortgage in favour of the bank and that the fact of the mortgage was not entered in the recoi I of those departments. It is obvious that in view of this admitted position, the appellant had no means of knowing that the land in question stood mortgaged in favour of the bank. There is no reason to doubt the appellant's testimony that he bid consulted the Revenue Record where Tausif Ahmad was recorded as owner which means that he had made the necessary inquiry to ascertain that Tausif Ahmad was competent to transfer the land. The appellant testified also that he had made inquiries from the office of the Sub-Registrar but as the mortgage was not registered, he could not possibly know that the land in suit stood mortgaged in the bank's favour. It must, therefore, be held that the appellant had taken all reasonable care to ascertain that Tausif Ahmad was the owner of the land and was competent to sell it. The deed of sale shows that the appellant had paid rupees one lac to Tousif Ahmad. It must therefore, be held that the appellant had acted in good faith.
8. Leamed counsel for the respondent referred to Tarachand Mondal anA.Pthgrs vs. Hazari Shaikh and another (PLD 1967 Dacca 203), Maulana Riazul Hassan vs. Muhammad Ayub Khan and another ( 1991. SCMR 2513 ) and_M& Hagjbaa_Bjia v. The Austarlasia Bank. Lahore and 2 otters ( 1970 SCM R 652). All those cases are authority-for, and were decided on, their own facts. In the Dacca case, the defendants were found not to have obtained the original title deeds or to have inspected them.
Here, this was not the case, for the appellant had seen title deed of Tausif Ahmad who was also recorded as owner in the Revenue Record. In Maulana Riazul Hassan ys. Muhammad Ayub Khan, it was held that more inspection of the Revenue Record is not sufficient and that a purchaser has a duty to look to the registered deeds. In Mst. Nasiban Bibi's case the purchaser was content to consult the Revenue Record only, he had not inspected the registered deeds.
9. For these reasons, the appeal is accepted, the order of the leamed District Judge dated 3-6-1992 is set aside, the order attaching the property in question is also set aside with the result that the property in question shall stand released from attachment.