Muhammad Sulaiman v. Sakina Bibi

Stuart and Kanhaiya Lal, JJ.:— The dispute in this appeal relates to a house situate in Cawnpore city. The house belonged to Musammat Sakina, the plaintiff respondent. In the beginning of 1912 she went to Mecca, leaving the house in charge of a relation of hers named Bad-ullah. Before leaving for Mecca, she had executed a will by virtue of which she had bequeathed an interest in that house to Bad-ullah on her death. At Bombay she got herself re-married to a person named Nur. Jamal and rent with him to Mecca where she stayed for two years. On her return she went to Delhi where she stayed with her husband.

Meanwhile an application was made by Bad-ullah to the Municipal Board, Cawnpore, on the 31st of May, 1915 stating that he was not aware of the whereabouts of Musammat Sakina who had gone on pilgrimage, nor certain whether she was dead or alive, and praying that the house might be entered in his name, as he was her only heir. This application was granted and the name of Bad-ullah was entered in the Municipal house-tax register in the place of Musammat Sakina. On the 30th of September, 1917 he sold the house for Rs. 2,500 to the defendant appellant, and the question for consideration in this appeal is whether the plaintiff is hound by that sale. The court of first instance found that the defendant appellant had taken reasonable care to ascertain the title of Bad-ullah before taking a sale deed from him and that he had noted in good faith and purchased the house for valuable consideration. The lower appellate court, however, held that Bad-ullah was not the ostensible owner of the house with the express or implied consent of Musammat Sakina and the sale was not, therefore, binding on her. That muling is challenged here. On the question as to whether the defendant appellant had made reasonable inquiries before purchasing the property, the finding of the lower appellate court was that he had done so, and stress is laid on behalf of the defendant appellant on that finding as militating against the decree which the lower appellate court has passed in favour of the plaintiff.

It appears from the statement of the defendant appellant himself that he was aware that Musammat Sakina was originally the owner of the disputed property. He had as certained that fact when he examined the Municipal house-tax register. Had he made a further inquiry, he would have learnt that the name of Bad-ullah was substituted in her place by means of an application in which Bad-ullah had admitted that he was not aware whether Musammat Sakina was dead or alive, Mussmmat Sakina had been absent from Cawnpore for not more than six years. The defendant appellant states that he had made inquiries from certain neighbours and was led by them to believe that Bad-ullah was the owner of the house, but that inquiry could hardly be treated as sufficient in view of the fact that he knew that Musammat Sakina was the original owner of the house and no satisfactory information was available as to whether she had actually died. The presumption of death could not have been made before the lapse of seven years. Bad-ullah was only the manager of her property, and, as pointed out in the case of Joanna Das v. Uma Shankar (1), the possession of a manager cannot be treated as sufficient evidence of ostensible ownership with the consent, express or implead, of the real proprietor, within the meaning of section 41 of the Transfer of Property Act. The entry of the name of Bad-ullah in the house-tax register was only made for the purpose of assessment and collection of house-tax and was not intended for registering title, and as their Lordships of the Privy Council say in Merwanji Muncherji Cama v. The Secretary of State for India in Council , such an entry is not always enough to induce a person to think that the person whose name was entered was the proprietor and had a right to sell the property which was entered in his name. In Partap Chand v. Saiyida Bibi a Government official owning zamindari property had caused that zamindari property to be recorded in the revenue papers in the names of his young sons and the latter subsequently sold portions of the property and mortgaged others. The vendee and the mortgagee had satisfied themselves that the property had been recorded for some years in the names of the sons but had made no further inquiries as to whether the property had realty belonged to the sons or not. It was held by this Court that the transferee though acting in good faith, had not taken reasonable care to ascertain that the transferor had power to make the transfer.

On the facts found, it cannot, therefore, be said that the inquiry made by the defendant appellant was sufficient. In fact what lie had already learnt was sufficient to put him on his guard and induce him to make further inquiries before taking a sale deed from a person who had practically not his name entered in the Municipal house tax register either under some mistaken notion or by fraud. The plaintiff appellant explains in her statement that she was under the impression that the rent of the house was being utilized in the repairs of a certain mosque, and no adverse inference can be drawn from the fact of her having omitted to claim or realize rent from the person who was in charge of the house whilst she was away. We do not consider that section 41 the Transfer of Property Act is applicable, and dismiss this appeal with costs.

Appeal dismissed.