Tated, J.:— Original defendant Nos. 3 and 4 preferred this second appeal against the judgment and decree passed by the learned District Judge, Satara, in Regular Civil Appeal No. 173 of 1975 dismissing the appeal preferred by them against the judgment and decree passed by the learned Joint Civil Judge, (Junior Division), Satara, in Regular Civil Suit No. 49 of 1971 decreeing the plaintiffs' claim for partition and separate possession of their 5/6th share in the suit property.
2. Respondent Nos. 1 to 4 (plaintiff Nos. 1 to 4) filed Regular Civil Suit No. 49 of 1971 in the Court of the Joint Civil Judge, J.D, Satara, for a declaration that a sale transaction by Respondent No. 5 (defendant No. 1) in favour of the present Appellants (defendant Nos. 3 and 4) executed on 26th August 1970 was void ab initio and also for partition and possession of their 5/6th undivided share in the suit property. The suit property consists of an agricultural land bearing S. No. 157/1A area 4 acres 38 gunthas and later on corrected to 3 acres 22 gunthas and allotted Gat No. 414 situate at Village Malgaon in Satara District. Defendant No. 1 Keshavacharya Bhawacharya Kanade sold the suit land to defendant Nos. 3 and 4 who are Appellants before this Court for Rs. 2,200/- by a registered sale deed dated 26th August 1970, Exh. 140. The relations of the plaintiff and defendant Nos. 1 and 2 are as per the genealogical table set out below:
3. The case of the plaintiffs was that the suit property was the joint family property of the plaintiffs and defendant Nos. 1 and 2 and, therefore, defendant No. 1 had no right to sell the property and the sale effected by him was not binding on 5/6th share of the plaintiffs' property. They also contended that defendant Nos. 3 and 4 brought about the sale-deed by practicing fraud on defendant No. 1 and as such the sale-deed was void ab initio. Defendant Nos. 1 and 2 by their common written statement Exh. 30 opposed the claim of the plaintiffs. They denied the plaintiffs' averment that there was joint Hindu family in existence at the time defendant No. 1 executed the impugned sale-deed, Exh. 140, in favour of defendant Nos. 3 and 4. According to those defendants there was a family partition in 1943 and on 10th July 1953 defendant No. 1, plaintiff No. 1 the deceased Hari drew a memorandum of partition. The land S. No. 157/1B sold to Sarjerao Kadam was allotted to the share of plaintiff No. 1 and the suit land was allotted to the share of defendant No. 1. However, in the memorandum of, partition it was wrongly stated that the suit land came to the share of plaintiff No. 1. Defendant Nos. 1 and 2 contended that defendant No. 1 was in the exclusive enjoyment of the suit land and he initiated tenancy proceedings and obtained possession of the suit lend in his own right as the owner thereof and sold the suit land as owner to defendant Nos. 3 and 4. Thus defendant Nos. 1 and 2 supported the sale of the suit land effected by defendant No. 1 in favour of defendant Nos. 3 and 4. Defendant Nos. 3 and 4 by their joint written statement Exh. 31 resisted the suit. They contended that the suit land was exclusively owned and possessed by defendant No. 1 and that they were bona fide purchasers for value without notice. They dented that they practised any fraud on defendant No. 1 for obtaining the sale-deed Exh. 140 from him.
4. The learned trial Judge on considering the evidence before him held that there was no partition between the plaintiffs and the defendants 1 and 2. He held that defendant Nos. 3 and 4 practised fraud on defendant No. 1 and obtained sale-deed Exh. 140 in respect of the suit land and as such the sale-deed was void ab initio. He negatived defendant No. 1's contention that he became owner of the suit property by adverse possession. He held that defendant Nos. 3 and 4 failed to prove that they were bona fide purchasers for value without notice. On those findings the learned trial Judge decreed the plaintiffs' claim.
5. Being aggrieved by the decision of the trial Court, the Appellants (plaintiffs) filed Regular Civil Appeal No. 173 of 1975 in the District Court at Satara. The learned District Judge, who heard the appeal, dismissed the same. He reversed the finding of the learned trial Judge that there was no partition of the joint Hindu family of the plaintiffs and defendant Nos. 1 and 2. He found that at the time of the execution of the sale-deed Exh. 140 there did not exist joint Hindu family of the plaintiffs and defendant Nos. 1 and 2. He held that it was not proved that in the family partition the suit land fell to the share of defendant No. 1. He also negatived the contention of defendant No. 1 that he became owner of the suit land by adverse possession. On those findings he dismissed the appeal. Original defendant Nos. 3 and 4 being aggrieved by the decision of the District Judge, Satara preferred this second appeal. This appeal was heard by my brother Kantharia, J., on 2nd December 1985. Before him the learned Counsel appearing for the Appellants raised the following three contentions:
(a) In view of the finding of the Appeal Court that there was severance of the joint status of the family in 1953, the appeal Court should have recorded the finding on issue No. 5 in regard to section 41 of the Transfer of Property Act.
(b) The finding on the Issue of adverse possession is vitiated as the Appeal Court took into consideration the notice at Exh. 128 dated 19th September 1970 issued by defendant No. 2 after he executed the sale-deed at Exh. 140 on 26th August 1970 in favour of the Appellants.
(c) It was an error of law to hold that Smt. Gangabai (plaintiff No. 2) whose husband died in the year 1980 had any share in the suit property.
6. As the learned District Judge, Satara, had not recorded any finding on issue No. 9 framed by the learned trial Judge as to whether defendant Nos. 3 and 4 prove that they were bona fide purchasers for value without notice of the land in question regard being had to the provisions of section 41 of the Transfer of Property Act, Khantharia, J., raised the following question:—
“In view of the finding that there was a severance of the joint status of the family in the year 1953, do defendant Nos. 3 and 4 prove that they were bona fide—purchasers for value without notice of the suit land, having regard to the provisions of section 41 of the Transfer of Property Act?”
7. This question was referred to the learned District Judge, Satara, for giving finding. The matter was accordingly sent bank to the learned District Judge, Satara and the District Judge Satara on 31st March 1986 remitted his finding on the question referred to him. He answered the question in the negative for the reasons recorded by him in his judgment dated 31st March 1986.
8. After the finding recorded by the Disctrict Judge on the question referred to him was received here the Appellant submitted their objections to the finding recorced by the learned District Judge on 25th July 1986.
9. The learned Counsel for the Appellant contends that on the facts and circumstances proved in this case, the Courts below were not right in concluding that the Appellants were not bona fide purchasers for value without notice as per the provisions of section 41 of the Transfer of Property Act. The learned Counsel for the respondent Nos. 1 to 4 on the other hand contends that their is a concurrent finding of fact by the two Courts below that the Appellants failed to prove that they were the bona fide purchaser for value without notice and were protected under section 41 of the Transfer of Property Act, and, therefore, it is not now open for this Court to take different view of the matter by re-appreciating the evidence on record. In support of his contention he has relied on the following decision; 1(E. Mahboob Saheb v. N. Sabbarayan Chowdhary), (1982) 1 SCC 180 : A.I.R 1982 S.C 679; 2(V. Ramchandra Ayyar v. Ranialingam Chettiar), A.I.R 1963 S.C 302; 3(Mst. Kharbuja Kuer v. Jangbahadur Rai), A.I.R 1965 S.C 1203; 4(Ladli Prashad Jaiswal v. The Karnal Distillery Co. Ltd. Karhal), A.I.R 1963 S.C 1279; 5(Madamanchi Ramappa v. Muthaluru Bhojappa), A.I.R 1963 S.C 1633 and 6(Dudh Nath Pendey v. Suresh Chandra Bhattasali), (1986) 3 SCC 360 : A.I.R 1986 S.C 1509. Relying on the above authorities the learned Counsel for the Respondents submitted that in the present case the findings recorded by the lower appellate Court cannot be reversed on reappreciating the evidence by this Court. He Submits that there is no defect of procedure and there was no legal error on the part of the trial Court which requires to be corrected by this Court in second appeal under, section 100 of the Civil Procedure Code. The learned Counsel for the Appellants on the other hand contends that the lower appellate Court has overlooked a very material part of the evidence bearing on the question and arrived at a finding ignoring important and relevant evidence and as such this Court would be justified in reversing the finding recorded by the lower Appellate Court. In support of his contention he relied on the decision in 7(Damdilal v. Parashram), (1976) 4 SCC 855 : A.I.R 1976 S.C 2229. Their Lordships of the Supreme Court at page 2237 of the report laid down the law thus:—
“…It thus appears that the lower appellate Court overlooked a very material part of the evidence bearing on the question. It is well established that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law.”
10. Taking into consideration the law laid down by the Supreme Court on the point and the authorities referred to by the Counsel for the parties, it is necessary to consider whether the finding recorded by the Courts below on the question referred to by this Court is vitiated and needs to be corrected by this Court.
11. I have gone though the decision relied on by the learned Counsel for the parties. It is true that in the second appeal this Court is bound by the lower appellate Court's finding of fact, but in this appeal the matter in question is as to the proper legal effect of proved facts and, therefore, is a question of law. The question to be considered in this appeal is whether, on the proved facts the provisions of section 41 of the Transfer of Property Act are attracted and whether the Appellants are entitled to the legal rights claimed by them by application of section 41 of the Transfer of Property Act. It is a question of law and can be considered in this second appeal. In this connection a reference may be had to the decision in 8(Yeshwant Deorao v. Walchand Ramchand), A.I.R 1951 S.C 16. In that case the question was whether section 18 of the Limitation Act applied, to the proved facts and whether it was a question of law which could be considered in the second appeal. Their Lordships of the Supreme Court held that the question as to the applicability of section 18 of the Limitation Act will be only a question of law and such question can be raised at any stage of a case and also in the final Court of appeal. In 9(Sadiq Hussein v. Co-operative Central Bank, Yeotmal), A.I.R 1952 Nagpur 106, the question was whether under section 100 of the Civil Procedure Code this Court in second appeal could consider whether section 41 of the Transfer of Property Act applied to the given set of facts. It was held that whether section 41 of the Transfer of Property Act applies to facts is a question of law and whether that section applies to a given set of facts being question of law could be considered in the second appeal. It was also held therein that finding of fact founded on circumstances established by admission of Irrelevant evidence is not binding in second appeal. It was also held that resonableness of enquiry under section 41 of the Transfer of Property Act is also a question of law and could be considered in second appeal under, section 100 of the Civil Procedure Code. In this view of law, I am unable to agree with the learned Counsel for the respondents that whether the provisions of section 41 of the Transfer of Property Act applied to the facts found by the Courts is a question of fact and the Courts below having found that the appellants were not protected under section 41 of the Transfer of Properly Act this Court cannot consider the said question in the second appeal.
12. I have gone through the decisions relied on by the learned Counsel for the respondents and I find that those decisions are not applicable to the facts of the present case. Whether the question raised for consideration is a question of fact or a question of law has to be considered and in case it is purely a question of fact, this Court in second appeal is bound by the finding of fact recorded by the lower appellate Court but if it is a question of law, the appellants can agitate in the second appeal that he question of law has not been correctly decided by the lower appellate Court on the proved facts and circumstances of the case.
13. It takes me to consider the contentions raised by the learned Counsel for the appellants in support of his contention that the facts and circumstances proved in this case fully satisfy the requirements of section 41 of the Transfer of Property Act and as such the transfer of the suit property by defendent No. 1 (Respondent No. 5) in favour of the defendants Nos. 3 and 4 (Appellants) is valid and is not void on the ground that the transferor was nor authorised to make it.
(i) The first circumstance relied on by the learned Counsel for the appellants is that the suit property stood in the revenue records in the name of transferor Keshavacharya though there was his uncle Vasudevacharye and he referred to 7 × 12 extracts, Exh. 125, for the period 1932 to 1951-1952 and also Exh. 126 for the period from 1960-1961 to 1970. He submitted that all along the property stood in the name of defendant No. 1 in the revenue records. He also submitted that as found by the lower appellate Court the three brothers separated in or about the year 1940 when they devided move ables and started residing separately. Defendant No. 1 Keshav was working as a priest at ??? Plaintiff No. 1. Vasudevacharye worked with some sarafi shop and thereafter also had his own safari shop and the third brother Hari was serving in the S.T department. He also pointed out that in the partition list prepared by the three brothers on 10th of July 1953 they had clearly mentioned that they had partitioned their moveable property about 10 years back and at that time they devided their moveables and also started residing separately and they no longer formed joint Hindu family on the day defendant No. 1 sold the suit land to defendant Nos. 3 and 4 under a registered sale deed dated 26th August 1970, Exh. 140, as there was no joint Hindu family of the plaintiffs and the defendants 1 and 2 since about the year 1940 Kesbavacharya could not be Karte of the joint family and there is no mention in any of the revenue records that the name of Keshavacharya as the owner of the suit property as Karta of the joint family. There being no joint family since long before the disputed sale, Keshavacharya could not be Karta of the joint family. Then the learned Counsel contends that the suit property stood in the revenue records for a number of years before the disputed sale in the name of the transferor Keshavacharya and on that basis the transferees bona fide believed that Keshavacharya alone was the owner of the suit property. According to him, they had no means to know that in the partition of the immoveable property that took place in Phalgun of 1953, as stated in the partition list dated 10th July 1953, the suit land had fallen to the share of plaintiff No. 1 Vasudevacharya.
(ii) Secondly, the learned Counsel for the appellants contended that the suit land was in possession of defendant No. 5 Bala Bapu Mulane (who has been later on deleted from the array of defendants). Defendant No. 1 applied under section 88C of the Bombay Tenancy and Agricultural Lands Act for possession of the suit property on the ground that he required, the same for personal cultivation. The learned Counsel points out that in those proceedings defendant No. 1 described himself as the sole owner of the suit property and he disclosed his income alone and on the ground that his income was below Rs. 1500/- and he required the property for personal cultivation, he claimed possession thereof from the tenant. Exh. 108 is a certificate granted to defendant No. 1 in Tenancy Case TNC No. 730/08. It is mentioned therein that Keshavacharya leased out the land to the tenant and on inquiry it was found that the total annual income of the applicant Keshavacharya did not exceed Rs. 1500/-. The learned Counsel contends that Keshavacharya did not disclose the income of Vasudevacharya who was owning his Sarafi business and Hari who was serving in the S.T department. Keshavacharya who was working as priest showed his income and obtained certificate under section 88C of the said Act in his name alone.
(iii) Thirdly, the learned Counsel for the appellants contended that Keshavacharya alone filed an application under section 336 of the Bombay Tenancy and Agricultural Lands Act for possession of the suit land and it was registered as Tenancy Application No. 635 of 1962 in the Court of the Tenancy Aval Karkun, Satara. Exh. 145 is the certified copy of the order passed by the Tenancy Aval Karkun on 31st January 1963 whereby he ordered the tenant Bsla Bapu Mulane to deliver possession of the suit land bearing Gat No. 414 to the applicant Keshavacharya. The learned Counsel also points out that Keshavacharya as per the order passed in Tenancy Application No. 635 of 1962 obtained possession of the suit from the tenant on 5th June 1963 and on obtaining possession executed possession receipt vide, certified copy Exh. 111. He pointed out that in the application Exh. 121 made by Keshavacharya for possession of the suit land he had described himself alone as the owner of the suit land and since then he was in possession of the suit land till he executed the sale-deed in favour of defendant Nos. 3 and 4 and delivered possession of the suit land to them.
(iv) Fourthly the learned Counsel for the appellants pointed out that the tenant had appealed against the order passed against him under section 338 in Tenancy Case No. 635 of 1962. It was Appeal No. 95 of 1965 and Exh. 146 is the certified copy of the order passed by the Special Deputy Collector for Tenancy Appeals, Satara in Appeal No. 95 of 1965 dismissing the appeal.
(v) Fifthly the learned Counsel pointed out that on 24th of March 1970 defendant No. 1 Keshavacharya had entered into an agreement of sale of the suit land with one Sarjerao Kadam and executed an agreement deed Exh. 122. In that agreement deed defendant No. 1 Keshavacharya had described himself as sole owner of the suit land and mentioned therein that he had full authority to sell the land. Plaintiff No. 1 Vasudevacharya had consenting to the sale of the suit land by Keshavacharya to Sarjerao Kadam. The learned Counsel contended that the conduct of plaintiff No. 1 Vasudeva-charya in consenting to the sale of the suit by Keshavacharya describing himself as the sole owner, clearly indicated that Keshavacharya was ostensible owner of the suit land with the consent of plaintiff No. 1 Vasudeva-charya, in whose share the suit land was allotted in the partition of immoveable property effected in Phalgun 1953 as mentioned in the partition list dated 10th July 1953. The learned Counsel further pointed out that Vasudevacharya has admitted that he had consented to the agreement of sale Exh. 122 bated 24th March 1970 executed by Keshavacharya in favour of Sarjerao Kadam.
(vi) Sixthly the learned Counsel for the Appellants contended that the Appellants resided at the village Chivthal adjacent to the village Malgaon where the suit land was situated. The Appellants had taken with them Bala Bapu Mulane, the tenant from whom defendant No. 1 Keshavacharya had obtained possession at the time of the execution of the sale-deed, Exh-140, and Bala Bapu Mulane had attested the sale-deed. Thus according to the learned Counsel, the Appellants being the residents of the adjoining village and were in contact with the earlier tenant, were in the full know of the facts that it was defendant No. 1 Keshavacharya alone who was looking after the cultivation of the suit land and that he had obtained possession of the suit land from Bala Bapu Mulane after taking out the proceedings in the tenancy Court and his name was recorded in the revenue records all along as the owner of the suit property.
14. The learned Counsel for the Appellants in support of his contention that the Appellants satisfied all the requirements of section 41 of the Transfer of Property Act pressed into service above six circumstances fully established by the evidence on record. If the circumstances mentioned above are taken into consideration, the only conclusion that could be drawn is that the defendant No. 1 Keshavacharya was the ostensible owner of the suit property with the express or implied consent of the real owner Vasudevacharya, plaintiff No. 1 and the Appellants from the circumstances mentioned above knew that it was Keshavacharya alone who was dealing with the property as the owner thereof and he had also obtained possession of the property from the erstwhile tenant by representing to the tenancy authorities that he was the sole owner of the suit property and he was entitled to have possession thereof for bona fide personal cultivation. He submits that plaintiff No. 1, who is the real owner, was in full know of all those facts. He knew that the land was recorded in the name of Keshavacharya in the revenue records. He knew that Keshavacharya alone had applied to the tenancy authorities representing that he was the owner of the land and he required the land for his personal cultivation and on such representation obtained possession of the land. He also pointed out that plaintiff No. 1, the real owner, very well know that Keshavacharya was attempting to sell the suit property and had even entered into an agreement to sell the suit property to Sarjerao Kadam under agreement dated 24th March 1970 and he had consented to the sale thereon. According to the learned Counsel, this conduct on the part of Vasudevacharya, the real owner of the property, clearly indicates that Keshavacharya was the ostensible owner of the property with the express consent of Vasudevacharya and, it was not possible for the Appellants to know the secret understanding between Keshavacharya and Vasudevacharya, the partition list dated 10th July 1953 being not registered. As the partition list was not registered and no mention thereof was made in the revenue records, it was not possible for the Appellants to know that Vasudevacharya was the real Owner and under such circumstances they are entitled to be protected under section 41 of the Transfer of Property Act. In support of his contention he relied on the decision in 10(Baidya Nath Dutt v. Alef Janibi), A.I.R 1923 Cal. 240. The head-note of the report reads as follows:—
“Where one man allows another to hold himself out as the owner of an estate and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice of the real title; or that there existed circumstances which ought to have put him upon an enquiry that, if prosecuted, would have led to a discovery of it. It is not enough to assert generally that enquiries should be made or that a prudent man would make enquiries; some specific circumstance should be pointed out as the starting point of an enquiry which might be expected to lead to some result. One who culpably stands by and allows another to hold himself out to the world as the owner of property and thereby sell it to a bona fide buyer, cannot afterwards assert his title against the latter. It may be difficult on the concrete facts of a particular case to determine what ‘standing’ by is culpable. It is the duty of a man who knows that another is relying on a document bearing, counterfeit of signature to give notice of the forgery without delay.”
15. This decision is fully applicable to the facts of the present case. Keshava-charya was the ostensible owner of the suit property. The suit property all along stood in his name. He had taken tenancy proceedings as the sole owner thereof for recovery of possession. He had also entered into the agreement of sale of the suit land in favour of Sarjerao Kadam and in that agreement he described himself as the owner thereof and plaintiff No. 1 Vasudevacharya had given his consent to the said sale of the suit land by defendant No. 1. The appellants had made enquiries with the earlier tenant Bala Bapu Mulane and he in fact took him with him to the office of the Registrar where the safe-deed in question was executed by Keshavacharya in favour of the Appellants and he had attested the sale-deed. From those facts, according to the learned Counsel it is proved that Keshavacharya was the ostensible owner of the suit property with the express or implied consent of the real owner Vesudevacharya and he transferred the suit land for consideration to the Appellants and the Appellants after taking reasonable care to ascertain that the transferor had power to make transfer, had acted in good faith and as such they were protected under section 41 of the Tranfer of Property Act.
16. The learned Counsel for the respondents took me through the judgment of the trial Court especially paragraph 22 of the judgment wherein he discussed issue No. 9. Issue No. 9 is in respect of the plea of the defendants 3 and 4 that they were bona fide purchasers for value without notice. He also took me through the judgment of the learned District Judge after remand of the case for recording finding on the issue remitted by this Court to that Court. He submits that both the Courts have recorded concurrent finding of fact that the Appellants were bona fide purchasers for value and were not protected under section 41 of the Transfer of Property Act and as such in the second appeal the concurrent finding of fact by reappreciating the evidence could not be upset. On going through the judgment of the trial Court I find that the approach of the trial Court was totally wrong. He found that the plaintiffs and defendants 1 and 2 formed joint Hindu family with Keshavacharya as the manager on the data the suit land was sold to defendants 3 and 4. He also found that in the revenue record the name of Keshavacharya was mentioned as the owner of the suit land, he being the Karta of the joint family. He has not at all considered the circumstances mentioned above in the proper perspective. The lower appellate Court who heard the appeal before remand, set aside the finding of the trial Court that the suit property was joint family property of the plaintiffs and defendants 1 and 2. His finding, that the joint family continued right upto the date of partition has been also set aside and, in my opinion, correctly by the learned District Judge. As the approach of the learned trial Judge was totally wrong to the facts of the present case, he could not reach proper finding on issue No. 9. He gave undue importance to the notice dated 11th September 1970 alleged to have been given by defendant No. 1 to the appellants. In that notice it was mentioned that the sale-deed of the suit land was obtained by the appellants from defendant No. 1 Keshavacharya by practising fraud on him. It is pertinent to note that Keshavacharya did not enter into the witness box Keshavacharya did not support the plaintiffs' case that defendants 3 and 4 practised fraud on him and fraudulently obtained sale-deed in respect of the suit land from him. Defendant No. 3 Jagannath who entered into the witness-box, denied that there was any fraud as alleged by the plaintiffs. On the contrary, he has deposed that he paid consideration of Rs. 2200/- mentioned in the sale-deed and purchased the land from defendant No. 1 under a registered deed dated 26th August 1970, Exh. 140. Neither plaintiff No. 1 Vasudevacharya. P.W 1, nor any other witness examined by the plaintiff attended the transaction between the defendant 1 and defendants 3 and 4 and, therefore, they have no knowledge about what transpired between the appellants and Keshavacharya. Therefore, there is not an jota of evidence on record to indicate that defendants 3 and 4 practised fraud on defendant 1 Keshavacharya and obtained sale-deed in respect of the suit land from him and yet the learned trial Judge recorded a finding on surmises that defendants 3 and 4 obtained the sale-deed from defendant No. 1 by practising fraud on him and as such the sale deed was void ab initio. The only reference to the alleged fraud is in the notice dated 11th September 1970 said to have been issued by Keshavacharya to defendants 3 and 4. The plaintiffs examined the scribe of the notice Laxman Patankar, P.W 2. Laxman patankar gave evidence that Keshavacharya gave him the information to write the notice and Exh. 84/15 was the office copy thereof. This Laxman Patankar, P.W 2, is the neighbour of the plaintiffs and defendants 1 and 2 and yet he had the audacity to say in the cross-examination by the Counsel for defendants 3 and 4 that he did not know whether defendant No. 1 and the plaintiff residee separately. When the question was repeated, he stated that they were residing seperately. He further stated that he did not know for how many years they were residing separately. During cross-examination he states that on looking at the document he could only say whether it was written by him or not but he could not say as to who were present at that time. He was shown over-writing and some additions in the copy of the notice and he stated that those overwriting and additions were not in his handwriting. It is pertinent to note that the notice was sent by registered post acknowledgment due and in the acknowledgement the address of the sendor was written as “Keshav Bhavacharya Kanade, C/o. Vasudev Vyankatesh Kanade, Mukkam Post: Wai Jilha Satara”. It is difficult to understand when Keshavacharya was also residing at Wai why he wrote his address in the acknowledgment and C/o. Vasudev Vyankatesh Kanade. It is interesting to note that no mention of the notice was made in the plaint though the copy of the notice and the post acknowledgment were with plaintiff No. 1 and the plaintiffs produced those documents in the Court. In the absence of the evidence of Keshavacharya or any other person who attended the transaction between Keshavacharya and defendants 3 and 4, it could not be held that defendants 3 and 4 obtained the sale-deed in respect of the suit land from defendant No. 1 by practising fraud. When the person who is said to have been defrauded does not say that any fraud was practised on him by defendants 3 and 4 and on the contrary he fully supports the case of defendants 3 and 4 that he sold the suit property to the defendants for Rs. 2200/- and executed sale deed in his favour, it could not have been held that defendants 3 and 4 obtained the sale-deed in respect of the suit land by practising fraud on defendant No. 1 Keshavacharya. Suffice it to say that the approach of the learned trial Juge to the fads of the present case was totally wrong and as such no importance could be attached to the finding recorded by the learned trial Judge on Issue No. 9.
17. The issue on the application of section 41 of the Transfer of Property Act was framed by this Court and was remitted to the lower appellate Court for recording its finding as it had not recorded any finding on issue No. 9 framed by the trial Court. The reading of the reasons recorded by the learned District Judge, who heard the appeal after remand, shows that he also did not approach the facts of the case in proper perspective. It may be mentioned that the learned District Judge who decided Civil Appeal No. 173 of 1975 was not there when the matter was remitted by this Court for finding on the issue framed by this Court. His successor had heard this matter after remand and recorded his finding. The reading of paragraph 29 shows that he had not approached the facts of the present case in the proper perspective. Paragraph 29 reads as follows:—
“The facts which are evident from the record are that the partition Yadi Exh. 117 was executed on 10-7-1953, but it was not at all acted upon. Even though the suit land is shown to have fallen to the share of the plaintiff Wasudeo, he himself has come out with the case that the family is still joint and on that basis has claimed partition. The case of defendant No. 1 that the suit had fallen to his share is negatived by this very document.”
18. Had the learned District Judge read the Yadi at Exh. 117 dated 10th July, 1953, he would have known that it was a memorandum of the partition which the parties had already effected. The learned District Judge, who had heard the appeal before remand has recorded a categorical finding that the parties had effected the partition, and they had become separate paragraph 16 of the judgement reads as follows:—
“There is ample proof to show that the parties did become separate in or about 1953. It is a point to note that in pursuance of this memorandum of partition plaintiff No. 1, dafendant No. 1 and deceased Hari made an application Exhibit 116 to the village officers on 29th August, 1953 to give effect to the partition. Plaintiff No. 1 Vasudeo concedes that this application Exhibit 116 is in his hand-writing and it bears not only his signature but also the signature of defendant No. 1, and deceased Hari. Now Vasudeo has admitted:—
‘In 1940 moveables were divided. It is true that we decided to effect partition of family Hands. We prepared the memorandum of partition in 1953 before C.T.C Officer. The memorandum was written but actual partition by metes and bounds remained to be done. It is true that the lands, to be allotted to particular member is written in that memorundum…………………………So all our lands were sold under section 32-G of the Bombay Tenancy and Agricultural Lands Act. The sale proceeds were received by those in whose name the lands stood………’”
19. It would thus be clear that in view of what is stated above to contend that there was no partition is nothing but an exercise in facility.” In view of the above finding of the learned District Judge before remand, the observations of the learned District Judge after remand that the partition Yadi Exh. 117 executed on 10th July, 1953 was not at all acted upon are not correct. The learned District Judge after remand also found fault with the framing of the issue by this Court on the applicability of section 41 of the Transfer of Properly Act. At paragraph 35 he observed as follows:—
“………The Law seems to be quite well-settled that in order to get benefit of section 41 of the Transfer of Property Act, the purchaser has to take specific defence that the transferor was as an ostensible owner. Therefore, in my opinion there is initial lack of specific defence on the part of defendant Nos. 3 and 4.”
20. The pleadings were gone into this Court and this Court after hearing the parties that there were sufficient pleadings for raising an issue regarding the application of section 41 of the Transfer of Property Act and, therefore, the issue was raised and was remitted to the louver appellate Court. With this background the observations of the learned Appellate Court reproduced above do not appear to be proper. In paragraph 36 of his judgment the learned District Judge after remand stated various circumstances pressed. In support of the defence under section 41 of the Transfer of Property Act and in paragraph 37 he observed as follows:—
“In my opinion, all these circumstances have been already considered by my learned prodecessor and also by the trial Court. In para 20 of the judgment of my learned predecessor there is reference to the memorandum of partition Exh. 117 and also to the fact that defendant No. 1 initiated the tenancy proceedings and he obtained possession. It has been observed:
“This defendant No. 1 Vasudevacharya is a priest. So it was in the interest of parties to allow the suit land to remain in the name of Keshavacharya and to allow Keshavacharya to file tenancy litigations because it was possible for him to get the certificate under section 88-C of the Act and to get possession of land within the frame work of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. So from the mere fact that Keshavacharya initiated the tenancy proceedings would not by itself be enough to in the background of the above circumstances to hold that he asserted his exclusive title to the suit land.’”
21. It is pertinent to note that the learned District Judge before remand had not considered the defence under section 41 of the Transfer of Property Act raised by defendants 3 and 4. The trial Court had recorded a finding in the negative on issue No. 9 and though the that finding was challenged in the appeal, the learned District Judge had not raised any point in appeal on that count and he had not discussed that problem and yet the learned District Judge after remand referred to the observations made by the learned District Judge before remand while discussing other points raised before him. This was not a correct approach. The issue was raised by this Court regarding the application of section 41 of the Transfer of Property Act and was remitted to the learned District Judge for recording his finding and for purpose he could rake into consideration the pleadings, the evidence and that the judgment recorded by the trial Court. It was not proper for him to refer to the judgment in appeal recorded by his predecessor who had not addressed himself to the problem in issue after remand. The tenancy proceedings staged by Keshavacharya as the sole owner of the suit land and the conduct of other parties in not objecting to those proceedings and further the consent accorded by plaintiff No. 1 to the sale in favour of Sarjerao Kadam by defendant No. 1 of the suit land in Exh. 122 has also been misconstrued by the learned District Judge. At the end of paragraph 41 he observed thus:—
“……This aspect has been considered by the trial Court and by my learned predecessor and it has been pointed out that the conduct of the parties indicate that they were treating themselves as at least as co-sharers or tenants in common. If defendant No. 1 had got the land exclusively to his share then there was no necessity to obtain consent of the plaintiff No. 1 at Exh. 122.”
22. The approach of the learned District Judge was totally erroneous. The consent accorded by plaintiff No. 1 to the agreement of sale Exh. 122 indicated that Vasudevacharya (plaintiff No. 1) knew that defendant No. 1 represented himself as the sole owner of the suit land and Vasudevacharya instead of objecting to such conduct of defendant No. 1 had consented to the sale. This is a point in favour of defendants 3 and 4 for showing that defendant No. 1 was ostensible owner of the suit land with the express or implied consent of the real owner plaintiff No. 1 but the learned trial Judge misconstrued the whole thing. The learned District Judge after remand at paragraph 39 of the judgment observed thus:
“……Jagannath in his evidence at Exh. 100 has stated that the land was exclusively owned by defendant No. 1. Thereby he does not admit that defendant No. 1 was an ostensible owner.”
23. As defendent No. 3 Jagannath stated in the witness box that the suit land was exclusively owned by defendant No. 1 the learned District Judge observed that he did not admit that defendant No. 1 was an ostensible owner. This clearly indicates that the learned District Judge did not properly appreciate as to what is ostensible owner. An ostensible owner is one who has all the indicia of ownership without being the real owner. Defendant No. 3 Jagannath was seeing defendant No. 1 alone while dealing with the suit property and therefore he stated that the land was exclusively owned by defendant No. 1 but on that basis it cannot be said that he did not admit that defendant No. 1 was an ostensible owner. The observations of the learned District Judge referred to above indicate that he did not try to understand what is meant by “ostensible owner”. There was nothing wrong when defendant No. 3 Jagannath deposed that the land was exclusively owned by defendant No. 1 because he considered defendant No. 1 as the owner of the suit land. Thus, the whole approach of the learned District Judge after remand to the facts of the present case was not proper and without fully understanding the requirements of section 41 of the Transfer of Property Act he recorded a finding on the issue in the negative. Had he taken all the facts proved in this case which have been indicated above, he could not have reached the conclusion which he has reached. Consequently. I find that his finding on the issue is vitiated.
24. In order to satisfy the requirements of section 41 of the Transfer of Property Act, the transfer has to prove the following facts:
(i) That the transferor is an ostensible owner;
(ii) he is so by the consent, express or implied of the real owner;
(iii) the transfer is for consideration;
(iv) the transfer has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
25. In the present case the suit land had fallen to the share of plaintiff No. 1 Vasudevacharya in the partition effected in 1953. The land continued to be recorded in the revenue records in the name of defendant No. 1. There was no joint Hindu family and defendant No. 1 was not Karta of the joint Hindu family. Not only that the land continued in the name of defendant No. 1 in the revenue records, but defendant No. 1 respresented himself to be sole owner thereof before the revenue authorities in the proceedings under sections 88C and 33B of the Bombay Tenancy and Agricultural Lands Act and on that basis by disclosing his own income and his personal requirements he obtained possession of the land from the tenant. The possession receipt was also obtained in the name of defendant No. 1 alone. The plaintiffs and defendant No. 1 resided at Wai at a distance of about 20 km. from Malgaon where the suit land is situate. They did not cultivate the land personally. Plaintiff No. 1 Vasudevacharya was having his Sarafi shop at Wai and the deceased defendant Hari was serving in the S.T department. It was defendant No. 1 alone who was working as a priest and who could attend to the suit land. After obtaining possession of the suit land from the tenant he continued in possession thereof and the land continued to be recorded in his name alone as the owner thereof. He tried to sell the suit land to Sarjerao Kadam and executed an agreement deed Exh. 122 in favour of Sarjerao Kadam. Plaintiff No. 1, the real owner of the suit land, never objected to the said transaction on the contrary he consented to the said transaction and subscribed his signature to the said agreement. It is known why the sale-deed in pursuance of the said agreement was not executed in favour of Sarjerao Kadam. The same land was thereafter agreed to be sold to the defendants 3 and 4 for Rs. 2,200 and defendant No. 1 on receiving the whole consideration executed the sale-deed in favour of defendant Nos. 3 and 4. Defendants Nos. 3 and 4 being, residents of neighbouring village, were fully aware of the transactions in respect of the suit land. They knew that the suit land was leased out by defendant No. 1 to Bala Bapu Mulane and defendant No. 1 took proceedings under sections 88C and 33B of the Bombay Tenancy and Agricultural Lands Act and obtained possession of the land from him. According to defendants 3 and 4 defendant I was cultivating the suit land by hiring their services for the purpose. They also knew, as deposed by plaintiff No. 1 Vasudevacharya, that defendant No. 1 had tried to sell the suit land to Sarjerao Kadam. Thus, defendants 3 and 4 knew that defendant No. 1 is dealing with the suit land as owner thereof and his name was recorded in the revenue records as the owner. There was nothing for them to suspect that plaintiff No. 1 was the real owner of the suit land. The partition memorandum dated 10th July, 1953, Exh. 117, is not a registered document and therefore defendants 3 and 4 could not know about it. They had made inquiries with discharged defendant No. 5 Bala Bapu Mulane and in fact they had taken him with them to the office of the Sub-Registrar when the sale-deed, Exh. 140, was executed and the sale-deed was attested by him. Taking into consideration all those facts, I find that all the requirements of section 41 of the Transfer of Property Act are fully satisfied and therefore defendants 3 and 4 are entitled to the protection of section 41 of the Transfer of Property Act.
26. In the result, the appeal succeeds. The judgment and decree passed by the appeal Court dismissing the appeal is set aside. The declaration made by the learned trial Judge in respect of the sale-deed dated 26th August, 1970 executed by defendant No. 1 in favour of defendants 3 and 4 that it was void ab initio and was not binding on 5/6th share of the plaintiffs and further direction given by him regarding the partition of the aforesaid land are hereby set aside and the claim of the plaintiffs regarding possession and mesne profits in respect of the land sold by defendant No. 1 to defendants 3 and 4 under the sale deed dated 26 August, 1970 is dismissed. The decree passed by the trial Court shall accordingly stand modified. The Appellants shall be entitled to the costs throughout.
Order accordingly.
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