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  • Article 136 of the second schedule of the Indian Limitation Act.
  • section 561 of the Code of Civil Procedure.
  • SECTION 41 TRANSFER OF PROPERTY ACT
  • provision of section 58 of the Code,
  • section 34 of the Code
  • section 31 of the Code
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
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  • Article 136 of the second schedule of the Indian Limitation Act.
  • section 561 of the Code of Civil Procedure.
  • SECTION 41 TRANSFER OF PROPERTY ACT
  • provision of section 58 of the Code,
  • section 34 of the Code
  • section 31 of the Code
Smart Summary

Case Summary — Opinion by Knox and Aikman, JJ.

Factual and Procedural Background

This appeal arises from a suit instituted by Musammat Saiyida Bibi (the respondent) to recover possession of shares in zamindari property and mesne profits. The Court of first instance decreed a portion of the plaintiff's claim and dismissed another portion. The plaintiff appealed in respect of the dismissed portion. One defendant, Rai Partap Chand Bahadur (the appellant), filed objections under section 561 of the Code of Civil Procedure. The learned District Judge dismissed those objections and allowed the plaintiff's appeal in part. The present appeal is by Rai Partap Chand Bahadur against the decree of the lower appellate Court.

Key family and title facts set out in the opinion (as stated in the opinion):

  • Mir Madad Ali Khan, tahsildar in the district of Allahabad, died on 24 December 1894. He had three wives: Musammat Khatun Bibi, Musammat Najmunnissa Bibi (died 1881), and a third whose name is immaterial to the decision.
  • By Najmunnissa Bibi he had four sons (Syed Mohsin Ali, Syed Hamid Ali, Syed Kazim Ali and Syed Sher Ali) and a daughter Musammat Anwari. By Khatun Bibi he had two daughters, Musammat Jafri Begam and Musammat Inayat Begam. The plaintiff is the daughter of Musammat Jafri Begam.
  • The plaintiff claims under a sale-deed dated 18 August 1895, executed in her favour by her mother Musammat Jafri Begam and her mother's half-sister Musammat Anwari. The deed purported to transfer to the plaintiff the shares each of Jafri and Anwari inherited from their father Mir Madad Ali Khan, and Anwari's share inherited from her mother Najmunnissa.
  • The disputed property falls under two heads: (a) the share of the estate of Musammat Najmunnissa which passed to Musammat Anwari; and (b) the shares of Mir Madad Ali Khan that passed to Musammat Jafri and Musammat Anwari. The particulars were set out in lists A and C appended to the plaint.
  • The appellant, Rai Partap Chand Bahadur, is described as vendee of the shares of three brothers (Hamid Ali, Mohsin Ali and Kazim Ali) in the village Panwar, and mortgagee of shares in other specified villages; he is also mortgagee of Sher Ali's share in mauza Panwar.

Legal Issues Presented

  1. Whether the plaintiff's suit in respect of the share inherited by Musammat Anwari from Musammat Najmunnissa is barred by limitation under Article 136 of the Second Schedule to the Indian Limitation Act (twelve years for a purchaser at a private sale when the vendor was out of possession at date of sale), given the dates of death and possession asserted.
  2. Whether the suit is bad for multifariousness (misjoinder of parties and/or causes of action), and whether any misjoinder that may have occurred justifies upsetting the lower Courts' decree.
  3. Whether Mir Madad Ali Khan's acts and statements amounted to a relinquishment of his right in his wife's (Najmunnissa's) estate such that the plaintiff's claim should fail in respect of property that passed through him.
  4. Whether the appellant (transferee) is entitled to protection under section 41 of the Transfer of Property Act as a purchaser from ostensible owners, i.e., whether he took "reasonable care" to ascertain that his transferors had power to make the transfer.

Arguments of the Parties

Appellant's Arguments (Rai Partap Chand Bahadur)

  • The plaintiff's claim in respect of the share inherited by Musammat Anwari from Najmunnissa is time-barred under Article 136 of the Limitation Act because Najmunnissa died in 1881 and the suit was instituted on 11 May 1896, a period which the appellant contends exceeds twelve years from the vendor's entitlement to possession.
  • The suit is multifarious and suffers from misjoinder of parties and causes of action (defence raised in written statement), rendering it bad.
  • Mir Madad Ali Khan's acts and statements effectively relinquished his right in Najmunnissa's estate (a point accepted by the subordinate Court but reversed on appeal below), and therefore the plaintiff's title should fail as to those portions.
  • The appellant contends that he dealt as purchaser/mortgagee with persons who had been recorded in Government records as in possession for many years (ostensible owners), and that the precautions he took — namely verifying the entries in Government papers — amounted to "reasonable care" so as to entitle him to protection under section 41 of the Transfer of Property Act.

Respondent's / Plaintiff's Positions (as reflected in the opinion)

  • The plaintiff relied on the sale-deed of 18 August 1895 executed by Musammat Jafri Begam and Musammat Anwari as vesting title and right to possession in the plaintiff.
  • On the question of limitation the plaintiff (through findings noted by the Courts below) asserted and the lower Courts found that Musammat Anwari did obtain possession on her mother's death and continued to hold possession until the 13th of January, 4885 (as stated in the opinion), and that she lost possession from that date and was first entitled to recover possession then — placing the plaintiff's suit within twelve years of the date on which dispossession began.
  • On the question of Madad Ali's alleged relinquishment, the District Judge found on the evidence that Madad Ali did not relinquish the property in 1885 but continued to hold it until his death; that factual finding supported the plaintiff's claim in that respect.
  • On the section 41 issue the respondent relied on evidence and findings that the persons in whose names the properties stood were not the real owners and that the appellant had not taken sufficient inquiry beyond consulting Government records.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court considered each of the appellant's grounds in turn and explained its legal reasoning as follows.

1. Limitation (Article 136, Indian Limitation Act)

The Court accepted the District Judge's finding that Musammat Anwari had obtained and held possession on her mother's death and continued in possession until the 13th of January, 4885 (as recorded in the opinion), and that she was first entitled to recover possession from that date. Interpreting Article 136, the Court held that the relevant reference to the time from which limitation runs relates to the beginning of the dispossession referred to in the Article, not merely to the date when the vendor first became entitled to possession (for example, on the death of his predecessor).

The Court illustrated the principle by a hypothetical: if a vendor succeeded to property and had long continued in possession but was later ousted and then sold his rights, a vendee's suit against a subsequent trespasser should be timed from the date of dispossession rather than from the original succession date. Thus, where the vendor's exclusion from possession occurred within twelve years of the institution of the vendee's suit, the suit is within time. Applying that interpretation and the lower Court's factual finding of possession and later dispossession, the Court rejected the appellant's plea of limitation as to the share inherited by Musammat Anwari from Najmunnissa.

2. Multifariousness / Misjoinder

The Court noted that the term "multifariousness" is not used in the Code of Civil Procedure but treated the objection as one for misjoinder of parties and of causes of action. It reviewed relevant procedural provisions discussed in the opinion:

  • Section 34 requires objections for misjoinder of parties as co-defendants to be taken at the earliest opportunity and before the first hearing, or they are treated as waived.
  • Section 32 gives the Court power to strike out names of improperly joined defendants.
  • Section 31 provides that no suit shall be defeated by reason of misjoinder of parties (the Court observed this section does not cover the case of misjoinder of plaintiffs on distinct causes of action).
  • Section 58 was invoked to justify declining interference with the lower Courts' exercise of discretion.

The appellant had taken a written-statement objection as to misjoinder, but the trial Court did not sustain the objection nor strike out names under section 32. The appellate Court found that the defendants were properly before the Court for at least the part of the claim relating to Mir Madad Ali Khan's estate because all defendants were heirs or representatives of that estate. The Court concluded that even if the trial Court erred in not sustaining the preliminary objection, the error did not affect the merits or jurisdiction, and under section 58 the appellate Court would not interfere with the lower Court's decree.

3. Alleged Relinquishment by Mir Madad Ali Khan

The appellant argued that Madad Ali's acts and statements constituted a relinquishment of his rights in Najmunnissa's estate. The Court notes that the subordinate Court had accepted that plea, but the District Judge reversed that finding after reviewing the evidence. The District Judge's conclusion was that the only permissible finding on the evidence was that Madad Ali did not relinquish the property in 1885 and continued to hold it until his death. The appellate Court treated that as a factual finding supported by evidence and therefore not open to interference in second appeal.

4. Protection of Transferee under Section 41, Transfer of Property Act (Ostensible Owner / Reasonable Care)

The Court accepted as fact (as found by the lower appellate Court) that the sons' names had for many years stood in Government books as the proprietors (ostensible owners) but that they were not the real owners; they held the property in their names with the express consent of their father Mir Madad Ali Khan. The appellant, a purchaser/mortgagee from those sons, had no allegation of bad faith, and consideration had been paid.

However, the lower appellate Court refused to give the appellant the benefit of section 41 on the ground that the appellant had not taken reasonable care to ascertain that his transferors had power to make the transfers. The appellate Court analysed what constitutes "reasonable care" as circumstance-dependent. It held that merely observing that the transferors' names were recorded in Government registers did not, in the circumstances, amount to reasonable care.

The Court reasoned that because the property appeared to have been acquired in the names of the children when they were of tender years, and because it was known that their father was a Government employee in the district, a prudent purchaser should have made further inquiry (for example, asking Madad Ali how the property came to be in the children's names). Such inquiry might have elicited an explanation that the children were merely benamidars (nominees) for the father. If the appellant had made and relied on such an inquiry and Madad Ali had affirmatively represented the transfers as valid, then the appellant could have been deemed to have taken all reasonable precautions; but no such inquiry was made. On this basis the Court agreed with the lower appellate Court that the appellant failed to take reasonable care and thus was not entitled to protection under section 41.

Holding and Implications

HOLDING: The appeal by Rai Partap Chand Bahadur is DISMISSED. The decree of the lower appellate Court is affirmed, and under the circumstances the Court made no order as to costs.

Implications and direct consequences:

  • The plaintiff's claim in respect of the share inherited by Musammat Anwari from Najmunnissa is not barred by limitation under Article 136, as the Court interpreted the article to measure time from the beginning of dispossession, and the lower Court's factual finding placed dispossession within twelve years of the plaintiff's suit.
  • The objection of multifariousness/misjoinder did not justify upsetting the lower Courts' decree: the defendants were treated as necessary parties to the part of the claim relating to Mir Madad Ali Khan's estate, and any procedural error in declining the preliminary objection did not affect merits or jurisdiction such as to warrant interference under the Code.
  • The finding that Mir Madad Ali Khan did not relinquish his interest in Najmunnissa's estate stands as a factual determination supported by evidence and not open to reversal on second appeal.
  • The appellant, although a purchaser/mortgagee for value and in good faith, failed to take the degree of inquiry required by the circumstances and therefore is not entitled to the protection of section 41 of the Transfer of Property Act; his purchases/transfers are not confirmed against the true owners on that ground.
  • No broader declaratory precedent beyond the application of the cited statutory provisions is announced; the decision rests on the particular facts and the Court's construction of limitation timing under Article 136 and the standard of "reasonable care" under section 41 in the circumstances described. The immediate practical effect is affirmation of the lower appellate decree in favour of the plaintiff and dismissal of the appellant's challenges.
Appeal dismissed.

Note: This summary is prepared strictly from the content of the provided opinion and does not add or infer material that is not contained in that text.

    Pirtap Chand v. Saiyida Bibi

    Knox and Aikman, JJ.:— This appeal arises out of a suit brought by Musammat Saiyida Bibi, the respondent here, against certain defendants, to recover possession of shares in zamindari property and mesne profits thereon.

    The Court of first instance decreed a portion of the plaintiff's claim. The plaintiff appealed in regard to that portion of her claim which had been dismissed, and one of the defendants Rai Partap Chand Bahadur, filed objections under section 561 of the Code of Civil Procedure. The learned District Judge dismissed the objections, but allowed the plaintiff's appeal to a certain extent. This second appeal is filed by Rai Pertap Chand Bahadur against the decree of the lower appellate Court. For the proper understanding of this case, it is necessary to set forth the following facts:—One Mir Madad Ali Khan was a tahsildar in the district of Allahabad. He died on the 24th of December, 1894. He had three wives: one of these was Musammat Khatun Bibi, another was Musammat Najmunnissa Bibi; the name of the third wife is immaterial. By Musammat Najmunnissa Bibi he had four sons, namely, Syed Mohsin Ali, Syed Hamid Ali, Syed Kazim Ali and Syed Sher Ali, all defendants to the suit out of which tbia nppoal arises, and a daughter Musammat Anwari. By his wife Musammat Khatun Bibi he had two daughters, Musammat Jafri Begom and Musammat Inayat Begam, the latter of whom is a defendant to this suit. The plaintiff is the daughter of Musammat Jafri Begam. She claims under a deed of sale executed in her favour by her mother and her mother's half-sister Musammat Anwari, on the 18th of August, 1895. Musammat Najmunnissa died in 1881. Her heirs were her husband, Mir Madad Ali Khan, who was entitled to of her property, her sous Mohsin Ali, Hamid Ali, Kazim Ali and Sher Ali, each of whom was entitled to this of their mother's property, and her daughter Musammat Anwari, who was entitled to the remaining of Musammat Najmuunissa's property. This share Musammat Anwari professed to transfer to the plaintiff by the sale-deed of the 18th of August, 1895. On Mir Madad Ali Khan's death his property was divisible into 11 sihams. Of these, his four sons above named were entitled each to 2 sihams, and his three daughters, Musammat Jafri, Musammat Inayat and Musammat Anwfifti to 1 siham each. By the sale-deed of the 18th of August, 1895, Musammat Jafri find Musammat Anwari transferred to the plaintiff the share which they respectively inherited of their father Madad Ali Khan's property. It will thus be seen that the property claimed falls under two heads-first the share of the estate of Musammat Najmunnissa, inherited by Musammat Anwari; and second, the shares of the estate of Mir Madad Ali Khan, inherited by Musammat Jafri and Musammat Anwari. The properties under the first head are set forth in list A, and the properties under the second head in list C appended to the plaint. Here it may be stated that the appellant Rai Partap Chand Bahadur, is vendee of the shares of three of the four brothers, Hamid Ali, Mohsin Ali and Kazim Ali in one village Pan war, and mortgagee of their shares in the villages Daryabad, Atarsuiya and Bagh Miranpur. He is also the mortgagee of the share of the fourth brother Sher Ali in mauza Panwar.

    Different defences and different considerations arise in regard to each head of the property. First, as to the share inherited by Musammat Anwari in the property of her mother Musammat Najmunnissa. As to this, the defence was that the plaintiff's suit is barred by limitation under Article 136 of the second schedule of the Indian Limitation Act. That article provides a period of twelve years' limitation for a suit by a purchaser at a private sale for possession of immovable property sold when the vendor was out of possession at the date of sale and adds that the time from which the period begins to run will be the time when the vendor is first entitled to possession. It is admitted that the plaintiff's vendor was out of possession on the 18th of August, 1895, the date of the sale to the plaintiff. It is contended on behalf of the defendant appellant, that as Musammat Najmunniesa died in 1881, and as her daughter Musammat Anwari became entitled to possession of her mother's property immediately upon her mother's death, the suit, which was instituted on the 11th of May, 1896, is barred by the twelve years' rule of limitation cited above, inasmuch as upwards of twelve years had expired from the time when the plaintiff's vendor was first entitled to possession. As to this plea. We think it sufficient to say that the learned District Judge finds that Musammat Anwari Begam did get possession on her mother's death, and held possession up to the 13th of January, 4885, from which date she lost possession and was first entitled to recover possession. The learned Judge held that the suit being within 12 years from the above mentioned date, was within time. Ware of opinion that the decision of the learned Judge on this point is right. The contention on behalf of the defendant appellant would have us ignore the finding by the lower appellate Court that the plaintiff's vendor did get possession on her mother's death, and held, possession for four years, and would make the date from which time begins to ran the date of the mother's death. We are satisfied that is not the meaning of the article. Suppose that a Vendor succeeds to property on his father's death, remains in possession thereof for twenty years, is then ousted by a trespasser, and two years after this sells his rights; we think that it could not be contended in a suit brought by the vendee against the trespasser that, inasmuch as the plaintiff's vendor was first entitled to possession on his father's death, twenty-two years before, the suit was out of time. We hold that the words in the third column relate to the beginning of the dispossession referred to in the first column of the article, and that the meaning of the article is that if supposing no sale had taken place, the vendor's title would have been alive at the time, the vendee's suit is brought, such suit is not barred: but that, on the other hand, when the vendor has been for twelve years out of possession at the date of the vendee's suit, such a suit would be too late. In a suit such as the present when the purchaser succeeds in showing that the exclusion of his vendor from possession took place within twelve years of the institution of the suit, he succeeds in showing that his suit is within time. We therefore reject the plea of limitation in regard to the property inherited by Musammat Anwari Begam from her mother.

    The next plea raised on behalf of the defendant appellant is that the suit was bad for the multifariousness. We would observe that the expression multifariousness is not used in the Code of Civil Procedure, But what is meant apparently, is, that the suit was bad for misjoinder of parties and of causes of action. With regard to misjoinder of parties, section 34 of the Code provides that all objections for misjoinder of parties as co-defendants shall be taken at the earliest opportunity, and in all cases before the first hearing, ad that any such objection not so taken shall be deemed to have been waived by the defendants. There is no doubt that the appellant in his written: statement did take the objection that there was a misjoinder of parties as defendants on the ground that the defendant No. 6 had nothing to do with any of the other defendants. On this objection being taken, the Court might under section 32 have ordered the names of any defendants improperly joined to be struck out. The Court, however, did not sustain the objection, and did not act under the last mentioned section. If we were of opinion that there had been a misjoinder of defendants that would be no ground for upsetting the decree of the Court below, inasmuch as section 31 of the Code provides that no suit shall be defeated by reason of misjoinder of parties. The cases relied on by the Earned vakil for the appellant are cases in which there was a misjoinder of plaintiffs smog on distinct causes of action—a state of things to which the provision quoted from section 31 has no reference, as will be seen from the last paragraph of that section. But we are of opinion, that, inasmuch as the suit was for the possession of property which had formed part of Mir Madad Ali Khan's estate, all the defendant were necessary parties to that part of the claim, inasmuch as all the defendants are heirs or representatives of the heirs of Mir Madad Ali Khan. It may be that all the defendants were not interested in the whole of the property in suit, but we hold that would not make the plaintiff's suit a bad one. In any case, we are of opinion that the action of the Court in not giving effect to the defendant's preliminary objection, even if erroneous, was not an ??? which affected either the merits of the case or the jurisdiction of the Court, and on that ground we should, with reference to the provision of section 58 of the Code, decline to interfere with the decree of the Court below.

    The third plea raised on behalf of the appellant relates to that part of Najmunnissa's estate which passed on her death to Mir Madad Ali Khan and on his death to his heirs. It is contended that his acts and statements amounted to a relinquishment of his right in Musammat Najmunnissa's estate. That plea was given effect to by the Court of first instance, but on appeal the decision of the Sub-ordinate Judge on this point was reversed by the learned District Judge His conclusion after a review of the evidence is as follows:—“On this evidence there is only one finding possible, namely, that Madad Ali Khan did not relinquish this property in 1885, but continued to held it till his death.” That is a finding of fact, and there is evidence to support it. We cannot therefore interfere with it in second appeal.

    The fourth and last plea urged before us on behalf of the appellant is based upon the fact that the property transferred to the appellant, Kai Partap Chand Bahadur, by the some of Mir Madad Ali Khan was property which had for many years acted in their names in the Government books, and that they therefore were the ostensible owners. It hag been found as a fact by the lower appellate Court that they were not the real owners, and that the property, though standing in their names, belonged to Mir Madad Ali Khan. That it stood in their names with the express consent of their father, Mir Madad Ali Khan, is undoubted. It is also not disputed that the sons transferred the property to the appellant for consideration, and there is no suggestion that the appellant acted otherwise than in good faith. But the lower appellant Court has refused to give the appellant the benefit of section 41 of the Transfer of Property Act upon the ground that the appellant, the transferee, had not taken reasonable care to ascertain that his transferees had power to make the transfer. It is contended in appeal before us that the precautions taken by the appellant at the time of the transfers to him did amount to his taking reasonable care within the meaning of the section just referred to. What is to be deemed “reasonable care” depends upon the circumstance of each case. Of course when the transferee from one who is an ostensible, and not the real, owner has notice of the defect in title of his transferor, the transferee is not entitled to protection. So far as appears from the record of the present case, the only precaution taken by the transferee was that he satisfied himself that the names of his transferees were, and had been for many years, recorded in the Government papers as in possession of the property transferred. We are of opinion that the learned Judge is right in holding that did not, under the circumstances, amount, on appellant's part, to taking reasonable care to ascertain that his transferees had power to make the transfers. The appellant, had he inquired into ??? transferor's title would have ascertained that the property with in they professed to transfer was acquired in their names when, they were children of tender years. It must also have been known to him that the father of his transferees was a Government employe in the district in which the property was situated. In our judgment these circumstances are such as would render it incumbent on a prudent man not to rest satisfied with merely seeing that his transferor's names were entered in the Government registers, but to go on to inquire whether the property was really theirs. Had the appellant inquired from Mir Madad Ali Khan how it was that the property was acquired in the names of young children, he might have ascertained that the Children were mere benamidars for their father, who did not wish himself to be recorded as acquiring property in the district in which he was employed. Had such an inquiry been made and bad Mir Madad Ali Khan informed the appellant that his sons were the real ownens, there is no doubt that the appellant would be deemed to have taken all reasonable precautions necessary under the circumstances, and that in that case even if the information given by Madad Ali were shown to be false, neither Mir Madad Ali Khan nor his successors in title could be heard to assert that it was false. We are of opinion that none of the grounds urged before us can be sustained. We therefore dismiss the appeal, but, under the circumstances set forth above, we make no order as to costs.

    Appeal dismissed.

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    Comments

    Pirtap Chand v. Saiyida Bibi
    (Jun 14, 1901)