The judgment and decree, dated 31-7-1967, of the learned Additional -District Judge, Sargodha, accepting the appeal of respondents Nos.4 and 5 and dismissing the suit of appellants, has been challenged in this regular second appeal.
2. Ghulam Qadir deceased, predecessor of the appellants filed a suit for declaration to the effect that he was owner of 1/2 share of land measuring 224-1/2 Kanals in Chak No.168/171-N.B., Tehsil and District Sargodha. As a consequential relief a decree for joint possession was also claimed.
3. It was pleaded that Adam Jee was owner of land in different villages of Mardan and Sargodha Districts. The land in question was owned by Adam Jee who died in 1921. He had two wives. From his first were, Ghulam Qadir, plaintiff in the suit, and Ghulam Sarwar who pre-deceased his father was born while from the second marriage with Mst. Aula Jan, Ghulam Nabi and Ghulam Yahya were born. Ghulam Nabi died (sic) the enforcement of Shariat Law leaving behind his widow. It appears that after the death of Adam Jee, his inheritance was mutated in the name of Ghulam Nabi, Ghulam Yahya and step--brother Ghulam Qadir (plaintiff). In the year 1951, Ghulam Nabi sold 1/2 share of land to Munawar Din and Paunah (defendants Nos.4 and 5 in the suit) now represented by their legal heirs and respondents Nos.4 to 10. This was vide sale--deed, dated 26-3-1951. Ghulam Qadir filed a suit for declaration to the effect that he was proprietor in possession of the land to the extent of 1 /2 share and, therefore, interference in his right and possession be restrained. The plaint in the said suit was rejected under Order 7, Rule 11 vide order, dated 29-12-1951.
4. In the year 1960, Abdul; Nabi son of Ghulam Nabi sold 1 /2 share of the land to Munawar Din. This was vide sale-deed, dated 3-6-1960. Of this Ghulam Qadir, plaintiff, predecessor of the petitioners filed the present suit on 15-10-1960. It was pleaded that after the death of Adam Jee, a wrong mutation of inheritance was effected in the name of Ghulam Yahya and Ghulam Nabi and Mst.
Aula Jan to the exclusion of Ghulam Qadir from the inheritance which was against the rule of Chundwand in succession which entitled him to inherit 1/2 share in the land being the son of the first were of Adam Jee deceased. He further challenged the sale in favour of Munawar Din and Panah defendants Nos.4 and 5 in .The suit) on the ground that the same was without authority, illegal and ineffective. .
5. After issues and evidence, the suit was decreed by the learned trial Court, on 29-11-1962. An appeal was filed by the legal heirs of Munawar Din (defendant No.4 in the suit) and by Pariah (defendant No.5 in the suit). Vide judgment and decree, dated 31-7-1967, the learned Additional District Judge, Sargodha accepted the appeal on the basis of findings recorded against Issues Nos.8 and 12 and in consequence the suit of the petitioners was dismissed.
6. The judgment delivered by the learned Additional District Judge in appeal has been assailed in this second appeal.
7. Learned counsel for the appellants argued that the learned trial Court decreed the suit by a well- reasoned judgment, which was illegally interfered with in appeal. He further argued that the findings of the learned Additional District Judge on Issues Nos.8 and 12 are against law inasmuch as the provisions of section 41 of the Transfer, of Property Act having not been properly construed. It was argued that the pre-conditions for bringing the case in exception or to seek declaration as a bona fide purchaser were not proved in this case. It was also argued in this case that the examination of the entries the Revenue Record would show that no case was made for bona fide purchase. Lastly, it was argued that the rule of Chundwand was applicable in the matter of succession in this case which was collusively determined by the judgment of the District Judge, Exh.P.4 and no view contrary to the same could be expressed.
8. Learned counsel for the respondents argued that before making purchase; defendants Nos.4 and 5, made enquiries in the Revenue Record and after finding the vendor to be owner as per those entries made purchase of the land which was sufficient inquiry in law to make out a case for bona fide purchase. He also submitted that the view taken by the learned Appellate Court does not suffer from any jurisdictional error or legal infirmity.
9. The learned Additional District Judge, which considering the entitlement of Ghulam Qadir from the inheritance of Adam Jee observed in para. 6 of the judgment as under: "In view of the about after the death of Ahmad Jee, his heirs are entitled to inheritance. Absence of name of Ghulam Qadir defendant (deceased respondent) from the mutation of inheritance will not deprive him of his title in the suit land to the extent of his share in it. Mutation is not a document of title. Neither it creates nor does it extinguish the title. In view of the above. Ghulam Qadir defendant (deceased respondent) is entitled to inherit the suit land to the extent of his share. He remains a co-share in the property in dispute with his step-brothers after the death of his father and absence of his physical possession or non-receipt of profit by him does not set the limitation running against him. In view the co-sharer is always considered to be in possession on behalf of all the co- sharers unless there in an ouster of the other co--sharer in respect of the joint property. In the absence of ouster the co--sharer cannot be considered to be in adverse possession as against other co-sharers in such property. Finding of the learned Civil Judge, therefore, as reflected in the question No. 1 is correct. "
10. From the above portion of the judgment of the learned Additional District Judge, it is evident that Ghulam Qadir deceased was found to be entitled to a share- in the estate of Adam Jee and was held to have retained his right as such.
11. While dealing with the question of bona fide purchase, the learned Additional District Judge, took the view that the vendor could be expected to look into the Revenue Record and that if the vendor was shown as a sole proprietor of certain land in the Revenue Record, the vendee need not go behind the Revenue Record or to make further inquiry.
12. Before taking this issue, it will be appropriate to consider the statement of Muhammad Pariah who appeared as D.W.2 in this case. He stated that case, he alongwith Munawar Din purchased the land. Ghulam Qadir had never received Batai. They dio not know about Ghulam Qadir and were not aware if Ghulam Qadir had any concern with the land or not. In cross-examination; it was admitted that no entry was recorded in the Revenue Record on the basis of plea of Thaka regarding land.
From the above statement, it is evident that the purchaser did not make any statement about making inquiries into the title of the land. The statement of the purchaser does not give even a remote impact of having made reasonable inquiry into the title of land before making the purchase. Section 41 of the Transfer of Property Act provides that where with the consent, express or implied of the person interested in the immovable property, a person is ostensible owner of such property and transfers the same for consideration, the transfer shall not be violable on that the ground that the transfer was not authorised to make it, provided that the transferee after taking reasonable care, that the transferor had power to make transfer, has acted in good faith. This section is an exception to the rule that a person cannot confer better title than he has. The ingredients of the section are that (i) the transferor is ostensible owner. (ii) he is so by the consent express or implied of the real owner, (i.e) the transfer is for consideration, (iv) the transferee had acted in goon faith taking reasonable care to ascertain that the transferor had power to transfer.
13. In Mt. Rasulan Bibi and others v. Nand Lal and others AIR 1930 All. 521 while considering the ingredients of section 41 of the Transfer of Property Act, it was ruled as follows:-- "It has been argued by the learned counsel for the respondent that an inspection of the Khewat was enough on the part of the auction-- purchaser and he need not have enquired whether the property was purchased by the judgment-debtors, or whether it had been inherited by them or what were other sources of acquisition on the part of the judgment-debtors. We are unable to agree with this view. Coming from Muhammadan families, the names of the sisters and mother, who are as heirs-at-law of a deceased Muhammadan, are never entered in the Khewat. If we are to say that Muhammadan sons, simply because their names alone are shown in the Khewat, are entitled to give a good title to a transferee, and the mother and the sisters shall be precluded from cladding their shares, it would be disastrous indeed. As remarked in so many cases, each case must be treated on its own facts. Ordinarily, when a man makes purchase, he enquires the source of the vendor's title. A mere inspection of the Khewat should not suffice as a sufficiently good inquiry under section 41, Transfer of Property Act, especially where the vendor or the judgment- debtor is a Muhammadan. To hold, otherwise would be to disregard what is a well-known practice in the land. "
14. In Kushalchand Bhagchand v. Trimbak Ramchandra and others AIR (34) 1947 Bom. 49, it was observed as follows:------ "It may be that under certain circumstances an examination of the Revenue Records, coupled with the fact of the possession of the transferor, would amount to a sufficient inquiry. But it does not dispense with the duty to make an inquiry in the Sub-Registrar's office which has now been imposed upon everyone taking transfer of immovable property by Explanation (1) of section 3, Transfer of Property Act. In 35 Bom. 342, Scott, C.J., quoted with approval the following passage from the judgment in (1894) 1 Ch. 25 (p.35)------ A purchaser of property is under no legal obligation to investigate his vendor's title. But in dealing with real property, as in other matters of business, regard is had to the usual course of business; and a purchaser who wilfully departs from it in order to avoid acquiring a knowledge of his vendor's title is not allowed to derive any advantage from his wilful ignorance of defects which would have come to his knowledge if he had transferred his business in the ordinary way'."
15. In Shukri and 3 others v. Ch. Muhammad Shafi Zaffar and 2 others PLD 1975 Lah. 619, it was held that the transferee must prove the purchase for value, the purchaser acted in good faith, took reasonable care, made reasonable inquiries to ascertain that the transferor had a power to make transfer and that mere entry of one's name as owner in the Government record or in the private papers does not relieve the purchaser from the duty and responsibility of making inquiry into the title of owner.
16. In Muhammad Jan Ghamnavi v: Captain Haji Muhammad Kabir and 3 others PLD 1977 Quetta 60, it was held that the prospective purchaser not merely required to make inquiries into the vendor's title to prove "reasonable care" but the circumstances should he of such specific charter that the Court can place its finger upon such facts and hold some enquiry has beer made. It was further observed that the purchaser had to show reasonable care and that he had gone behind mutation entertain and made further enquiry of the title of vendor and mere reliance upon the entries of the Revenue Record without making further inquiry, into the title of the seller cannot be said to be sufficient nor the transferee can claim to have acted with reasonable care.
17. In Muhammad Sarfraz Khan and another v. Farid Khan and 22 others PLD 1972 Pesh. 109, it was held that the purchaser ought to have been vigilant and made diligent inquiry to find out as to why the transferee was entered as owner in the record.
18. From the precedent cases noted supra, it is clear that while interpreting the requirement of section 41 of Transfer, of Property Act and considering its ingredients, it has been repeatedly held that to claim exception to the general rule and protection under section 41 of the Transfer of Property Act, has to prove that he purchased the property with the express or implicit consent of the owner made diligent and reasonable inquiries into the title of the owner, purchased for consideration and that he acted in good faith and reasonable care to ascertain that the transferor had the power to transfer. The requisite inquiries necessitated an effort to find out if the transferor was real possessor of the title. As a part, of duties, the transferee is bound to go beyond the entries in the Revenue Record, to find out the basis of such entries and to collect information about the real owner. Inquiry in this case, if made would have put on notice to the transferee of the fact that the transferor was claiming title from Adam Jee and this being so, it was the bounden duty of transferee to make inquiry as to the legal heirs of Adam Jee and to verify the basis of entries excluding the other L heirs from the share in inheritance. Some diligent and attentive efforts would have made it clear that the transferor was not competent to sell the whole property.
19. If the evidence on record is reviewed in the light of requirement of law, it is observed that the transferee in this case while appearing as D.W.2 does not claim of having made one inquiries into the matter before purchasing the land. On the contrary, his statement lacks in every respect the basic ingredients of section 41 of the Transfer of Property Act.
20. For the reasons recorded above, the findings of the learned Additional District Judge on the question of bona fide purchase are without any basis, contrary to law and suffer from perversity of reasoning, which are accordingly reverted. This appeal is accepted, the judgment of the learned Additional District Judge is set aside and in consequence judgment and decree of the learned trial Court is restored.
No orders as to costs.