Bibi Saliman vs Ainul Haque
2024 Latest Caselaw 5503 Jhar

Jharkhand High Court

Bibi Saliman vs Ainul Haque on 10 June, 2024

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
              S. A. No. 59 of 2009

 1. Bibi Saliman
 2. Md. Jalil
 3. Aasmin Khatoon @ Asma Khatoon
 4. Sabru Khatoon
 5. Jamila Khatoon
 6. Shakila Khatoon
 7. Rehana Khatoon
 8. Tabassum @ Tabassum Jahan           ....   ....       Appellants
                     Versus
 1. Ainul Haque
 2. Safidan Khatoon
 3. Khatiza Khatoon
 4. Sogra Khatoon
 5. Bashira Khatoon
 6. Sanjida Khatton
 7. Noorjahan Khatoon
 8. Maksuda Khatoon                     .... ....       Respondents
                                  -----

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Sarju Prasad & Afaque Ahmad, Advocates For the Respondents : None

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Oral Order 14 / Dated : 10.06.2024

1. Learned counsel for the appellants appears and also is heard at length, whereas none has appeared on behalf of the respondents.

2. On the last date also, i.e. 17.05.2024, none had appeared on behalf of the respondents and the case was adjourned as a matter of last chance. It appears that learned counsel is not appearing on behalf of the respondents and deliberately delaying final disposal of the case. Under the circumstance, the instant appeal is being heard and disposed of by hearing the counsel on behalf of the appellants.

3. Appellants are the defendants and the second appeal is preferred against the judgment of reversal by which the suit of the plaintiffs has been decreed by the First Appellate Court.

4. Party shall be referred by placement in the original suit and shall include their legal representatives who have been substituted during the course of trial or appeal.

5. Plaintiff seeks declaration of sale deed executed by him in favour of the defendant as null and void, on the ground that during the life time of his father he

had no right to execute the same under Mohamadan law.

6. Original plaintiff Abdul Rahman son of the Barhan Mian filed suit for declaration of title over a Schedule 'A' land and for declaration that sale deed dated 12.05.1977 bearing No. 4899 in favour of Bibi Saliman defendant No.1 was null and void.

7. Recorded tenant Bukhan Mian died leaving behind his two sons Barhan Mian and Gani Mian. The sons of the recorded tenant died in jointness.

8. Defendant No.2 claim to have purchased the Schedule 'A' land in the name of his wife defendant No. 1 on the basis of registered sale deed executed by original plaintiff Abdul Rahman. Defendant No.1 subsequently sold a portion it to defendant No.3. It is pleaded that Plaintiff never executed the sale deed in favour of defendant no.1 and he never put his LTI on the said deed.

9. During a proceeding under Section 144 Cr.P.C between the plaintiffs and the defendants, it came to his knowledge that the said deed had been executed in favour of the defendant No.1 purported to be sold by the plaintiffs. It is pleaded that during the lifetime of Barhan Mian, plaintiffs could not have executed the sale deed of 1977 and although he was literate person, still L.T.I was affixed on the said sale deed. The sale deed was sham paper transaction and the possession was not delivered and he continued to be cultivation of the same.

10.As per the case of the defendants, the suit was barred by limitation and adverse possession. Defendant No.1 after purchasing the said schedule land on 10.05.1977 entered into khas possession and her name was mutated after deleting the name of Barhan Mian. The consideration money was paid to Barhan Mian and in presence of his son including plaintiff, Barhan Mian had directed his eldest son the plaintiff to execute the sale deed on his behalf and the plaintiff executed the sale deed after receiving the consideration amount.

11.Since Barhan Mian was disabled, therefore he directed his son Abdul Rahman (Plaintiff) to execute the sale deed for him and on his behalf and the plaintiff executed the registered deed of sale and the chirkut was handed over to the defendant no.1 and 2. After the execution of the sale deed it was duly mutated in the name of defendant no.1 without any objection from any quarter. Part of the suit property has been sold to defendant no.2 and now both are in possession over the same. Having executed the sale deed, plaintiff was estopped from denying execution of the sale deed.

12.Learned trial Court framed the following main issues:-

(i) Whether the suit was barred by law of limitation and adverse possession?

(ii) Whether the sale deed No. 4899 dated 12.05.1977 was null and void and inoperative and not binding upon plaintiffs?

13. Learned trial Court dismissed the suit by recording a finding of fact of both issues against the plaintiff.

14. On the issue of validity of the sale deed, it was held that the deed was validly executed by Md. Abdul Rahman. Learned trial Court also noted that plaintiff did not take any steps for disapproving the L.T.I of Barhan Mian appearing on the sale deed (Ext.C). There was admission in the testimony of PW-9 who is the son of the plaintiff regarding the execution of the sale deed.

15. Learned trial Court noted that the sale deed was executed by the plaintiff Abdul Rahman and not by Barhan Mian, though L.T.I of Barhan Mian was affixed on the sale deed, but not in the capacity of executant. Undoubtedly, son had no right to execute the sale deed during the lifetime of his father, however under Section 43 of the Transfer of Property Act, plaintiff Abdul Rahman was bound by the sale deed as the property had devolved on him after the said execution. In this view of matter, learned trial Court dismissed the suit and held the sale deed to be validly transferred in favour of defendant No.1.

16. The First Appellate Court reversed the judgment and decree the suit mainly on the ground that it was executed by the plaintiff who had no right to execute the same during the lifetime of his father.

17. This second appeal has been admitted to be heard on the following substantial question of law:-

(i) Whether the learned Appellate Court committed an error of law by not holding that the suit was barred by limitation?

(ii) Whether the First Appellate Court committed an error of law by ignoring the provisions of Section 43 of the Transfer of Property Act?

18. At the outset it is to be noted that there is presumption of due execution of registered instrument and the onus is on the party who assails such document to be forged or to have been executed by an imposter. There is a concurrent finding of fact regarding the execution of sale deed by the Plaintiff, Abdul Rahman who is none other than son of Barhan Mian the owner of the suit property.

19.After the execution of the sale on 12.05.1977 the parties came in possession over the suit land and it was duly mutated in favour of the defendant, whereas the suit for declaring the sale deed to be null and void was filed in 2002 after lapse of more than 20 years. The suit is accordingly hopelessly barred by limitation and the learned First Appellate Court committed an error of law in decreeing the suit without considering the bar of limitation.

20.With regard to second substantial question of law, the plaintiff is none other than the son of Barhan Mian who was admittedly the owner of the property and the sale deed was executed by him after receiving the consideration amount. It is true that during lifetime of Barhan Mian, Abdul Rahman had no right to execute the sale deed, however, after death of his father, his interest devolved on him and by operation of Section 43 of the Transfer of Property Act, the transferee will acquire valid title in the property. Section 43 of the Transfer of Property Act reads as under:

"43. Transfer by unauthorized 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."

It has been held in (2003) 10 SCC 200 (Renu Devi Vs. Mahendra Singh & Ors.) that if grantor purported to grant an interest in land which he did not at the time possess, but subsequently acquired, benefit of his subsequent acquisition would automatically go to the earlier grantee. The principle has been reiterated in (2007) 2 SCC 404 (Hardev Singh Vs. Gurmail Singh) wherein it has been specifically stated that Section 43 of the Transfer of Property Act operates against the transferor.

21. In the present case, there is concurrent finding of fact that Barhan Mian was the owner of the suit property and since he was bed ridden, the sale deed was executed by the plaintiff Abdul Rahman during his lifetime under his direction.

Barhan Mian admittedly died in 1995 and, therefore, even if it is assumed that Plaintiff was not authorized to transfer the property such contract of transfer subsists and he cannot be avoid the said instrument on the ground that he had no authority to execute the sale deed at the said point of time. It has been held in Jumma Masjid v. Kodimaniandra Deviah, 1962 SCC OnLine SC 157 :

"Considering the scope of the section on its terms, it clearly applies whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transfree takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting."

22.Under the circumstance, for the reasons discussed above, both the substantial questions of law are, accordingly, answered in favour of the defendants, as the suit was barred by limitation and in view of Section 43 of the Transfer of Property Act the transferee had acquired valid title on the basis of sale.

Suit of the plaintiff/respondent is dismissed and the appeal is allowed. I.A., if any, stands disposed of.

(Gautam Kumar Choudhary, J.) AKT/Satendra

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