JUDGMENT
S.S. Sudhalkar, J.
1. This Regular Second Appeal was admitted on 25-1-1989. While admitting, the stay of dispossession was granted. Respondent Hardev Singh moved an application for vacation of ex parte order of stay. The said order was vacated on 23-5-89. The same reads as under:
“After hearing the learned counsel for the parties, the ex parte stay order dated January 25, 1989 is vacated, as it was obtained on mispresentation.
2. The appellant moved another application being CM 2039-C of 1993 praying for slay of dispossession” After issuing notice, it was heard and dismissed on 14-9-1993. The appellant moved an application bearing No. 2452-C of 1993 for amending the grounds of appeal. Vide order dated 14-9-1993, the same was ordered to be heard along with main case.
3. By Misc. application No. 1252 of 1999 the learned counsel for the appellant had made a request for early hearing of this case because of the pendency of execution, proceedings or the order of status quo and vide order dated 24-3-99 the appeal was ordered to be listed for hearing on 6-4-99. The prayer for granting status quo regarding possession was rejected.
4. I have heard learned counsel for the parties.
5. This is an appeal by defendant No. 2 in regular civil Suit No. 104 of 1985. In the said suit decree of possession was passed on 8-1-1986. The appeal over the same filed by defendant No. 2 i.e. the present appellant was dismissed and hence this second appeal.
6. The facts of the case are that there was a litigation between Udham Kaur (original plaintiff) and her husband Harcharan Singh (original defendant No. 1). Harcharan Singh was the husband of Udham Kaur. Udham Kaur was the deserted wife of Harcharan Singh and she was given some land including the disputed land in lieu of maintenance in pursuance of a compromise. She claimed to have become owner of the suit land along with the other land by operation of the proceedings of Hindu Succession Act. She filed suit No. 100 of 1980 in the Court of Senior Sub Judge, Hoshiarpur against Harcharan Singh for declaring her to be the owner in possession of the suit land. Learned Sub-Judge 1st Class, Hoshiarpur vide judgment and decree dated 11-2-1982 held that she was holding the land in dispute in lieu of maintenance and was entitled to enjoy its fruits during her life-time but the ownership would remain with defendant No. 1. She then filed an appeal over the said judgment and the learned Additional District Judge declared her to be the full owner in possession of the land in dispute along with the other land.
7. During the pendency of the litigation Harcharan Singh sold the suit land to the present
appellant Gurmail Singh on 17-3-82. Udham Kaur brought a suit against her husband and the present appellant Gurmail Singh had obtained decree for possession of the land. The appeal filed by the present appellant before the learned Additional District Judge was dismissed. The case of the appellant is that he is a bona fide purchaser for value and the case of the respondent is that when the litigation was pending qua the suit land, the purchaser could not get any title because it was hit by the provision of S. 52 of the Transfer of Property Act, 1982 (hereinafter referred to as “the Act”). Both the Courts below have not accepted the contention of the appellant. In this appeal additional ground is sought to be added that the plaintiff had become the full owner of the land and after death of Udham Kaur, respondents Nos. 1 and 2 arc entitled to the equal share in the land and during the pendency of this appeal Harcharan Singh had died and now the sole owner is respondent No. 1 viz. Hardev Singh and, therefore, the sale should be declared valid.
8. So far as the question of lis pendens is concerned, i may repeat the relevant dates. The earlier suit of Udham Kaur against her husband was decided on 11-2-1982 and the appeal was decided on 4-2-1983 and the sale deed was dated 17-3-82. So the sale deed was made during the continuation of proceedings of the suit. Learned counsel for the appellant argued that the appellant had made all the enquiries and because the name of the plaintiff Udham Kaur was not entered in the revenue record, he could not know as to the pendency of the litigation. Even the fact that the possession was with Harcharan Singh is proved. Learned counsel has referred to the statement of Harcharan Singh DW1 in the trial Court. He has stated that he was in possession of the land in dispute on batai (lease) and, therefore, his possession was admitted. Harcharan Singh has also admitted in his deposition that after decision of the earlier suit, he had sold the land to the appellant and had executed the sale deed in his favour. The above facts are not in dispute. The question then is what will be the effect of Section 52 of the Act. Learned counsel for the respondent has shown me the cross-examination of Harcharan Singh. He has admitted in his cross-examination that it is correct that he had sold the land to Gurmail Singh in order to frustrate the claim of Udham Kaur. Learned counsel for the respond-
ent argued that if this was the reason for his sale the appellant cannot get the benefit of Section 41 of the Act as an ostensible owner as claimed. As against this learned counsel for the appellant has argued that intention of Harcharan Singh may not be good but the appellant could not have known of his intention. The facts remains that the appellant could not have checked from the revenue records regarding pendency of the suit. However, he could have taken necessary precaution, such as giving of a public notice etc. Only oral statement that he had taken all the precautions cannot be accepted. Learned counsel for the respondent has shown to me the deposition of DW 4 Karam Chand who has stated that no money was paid in his presence when the document for sale is executed. This witness is an attesting witness of document of sale. He has stated that he knew about the litigation between Udham Kaur and Harcharan Singh at the time of execution of sale deed. Gurmail Singh also knew regarding the said litigation. He also stated that Gurmail Singh i.e. the present appellant was residing with Harcharan Singh previously and Gurmail Singh used to attend the Courts during the litigation between. Udham Kaur and Harcharan Singh with Harcharan Singh because they were residing together. So far as knowledge is concerned, learned counsel for the appellant has relied on the admission made by plaintiff Udham Kaur in her deposition that Gurmail Singh (appellant) had no knowledge about the litigation with Harcharan Singh. However, in view of the admission of Karam Singh mentioned above, this admission loses importance because it was for the appellant to show that he had no knowledge and admission of his witness gains importance in this case.
9. Learned counsel for the appellant has relied on the case of Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553. It has been held in the said case as under (at page 562):–
“……..the father of the plaintiff throughout
acted in relation to others as the owner of the property though the plaintiff was the real owner of the property. The father of the plaintiff executed agreement deed to sell the land to defendant No. 1. The transaction was completed in the presence of the plaintiff and the consideration was put in the hands of the plaintiff. Plaintiff would certainly be estopped from contesting the validity of the sale on the ground that the father
had no authority to sell the land……”
The facts of the said case differ from the facts of the case in hand because in that case the plaintiff himself had accepted the consideration.
10. Learned counsel for the respondent has also cited the case of State of Punjab v. Harcharan Kaur, 1987 Pun LJ 46. This case has no relevance as it is totally on the different point.
11. Learned counsel for the appellant has cited the case of Avtar Singh v. Hazura Singh, AIR 1984 P. and H. 211 wherein it has been held that in the State of Punjab, when oral transfers were permitted by law, inspection of records in the registration office was not sine-qua-non while granting protection to the alienee under Section 41 of the Act. However, it is further held that facts and circumstances of each case have to be looked into in order to determine whether reliance on the revenue record without inspecting the record in the registration office would afford benefit to a transferee under Section 41 of the Act. The facts of that case also differ, in view of the above mentioned evidence in this case.
12. Learned counsel for the appellant has also argued that according to S. 52 of the Act, the litigation which is pending should not be a collusive litigation. It is apparent from the evidence in this case that the dispute between Udham Kaur and her husband Harcharan Singh was going on from a long time and they were not residing together and in the earlier compromise under which the land was given to them took place many years back. Civil Suit No. 100 of 1980 was filed by her as early as on 2-6-80 and, therefore, it cannot be said that the litigation between them was collusive. In this regard learned counsel for the respondent has stated that Harcharan Singh has stated in his cross-examination that it is correct that he had sold the land to Gurmail Singh in order to frustrate the claim of Udham Kaur. However, this also does not help the respondent because it is not an admission that Gurmail Singh was knowing about the intention of Harcharan Singh. Therefore, in view of the above reasons, the appellant cannot get the benefit of Section 41 of the Act. Therefore, the above contention of learned counsel for the appellant cannot be accepted.
13. The next contention of learned counsel for the appellant is that the appellant gets the advantage of Section 43 of the Act. Section 43 of the
Act reads as under :–
“43. Transfer by unauthorised person who subsequently acquires interest in property transferred:–Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.
Illustration to this section is also important. It is as under:
“A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these field X does not belong to A, it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.”
14. In the present case, Harcharan Singh husband of Udham Kaur is the person who has really played mischief as he has stated in his cross-examination that he had sold the land to Gurmail Singh in order to frustrate the claim of Udham Kaur knowing fully well that the proceedings of the suit was pending he sold the land to the appellant. After the death of Udham Kaur, Harcharan Singh being the natural heir would inherit the property and after the death of Harcharan Singh his property will be inherited by Hardev Singh being the son. Therefore, the moment Udham Kaur died half of her share went to Harcharan Singh. Therefore, though the appellant could not get the advantage of Section 41 of the Act, he would certainly get the advantage of Section 43 of the Act and the illustration therein. After inheriting half of the share of Udham Kaur, it would not lie in the mouth of Harcharan Singh that the sale is not valid, or not binding to him. The same will also be an obstacle in the way of Hardev Singh respondent No. 1 whose half share which he inherited from Harcharan Singh is a tainted one. Therefore, when Harcharan Singh inherited the share of Udham Kaur, he could not contest this sale made by him to the appellant and, therefore right of the appellant to the extent of share of Harcharan Singh will not be effected. This being so, the appellant will have right to the extent of half share in the suit property and consequently, the decree passed for possession cannot be upheld.
15. As a result, this appeal deserves to be allowed on the above ground only. The appeal is, therefore, allowed and the judgments and decrees of the Court below are set aside and the suit is dismissed with no order to costs.