1992 PLP 2557 (MLD)

5. The pleadings of the parties gave rise to as many as 7 issues including the relief. For the purposes of this relief, however, only the following three issues had survived for determination:‑‑‑ (1) Whether the plaintiffs have got a cause of action? (5) Whether rights of defendant are protected under section 41 of the Transfer of Property Act? (6) Whether the plaintiffs are entitled to the decree prayed for? The learned trial Judge after considering the ocular as well as documentary evidence adduced before him, held on issue No. 5 that the defendant had validly purchased the suit land by virtue of unregistered sale deed photo copy Exh. DW‑1/1 from the sons of Sarfaraz who in his turn had acquired proprietary rights in the suit land on the basis of Gift Mutation No.117 attested on 27‑5‑1943. It was further held that the transaction of sale in favour of the defendant was incorporated in the column of rent of the relevant Jamabandis. It was on the basis of these two considerations that rights of the defendant were held to be protected under section 41 of the Transfer of Property Act and the issue was decided in favour of the defendant. Issues Nos. 1 and 6 were taken up together and on the basis of his findings on issue No. 5 the plaintiffs were held to have got no cause of action and also not entitled to the decree prayed for. As a cumulative effect of these findings the plaintiffs were non‑suited. The learned Additional District Judge affirmed these findings in appeal and, as stated earlier, dismissed it on 10‑4‑1984.

6. Feeling still aggrieved with the judgments and decrees of both the Courts below, the plaintiffs‑petitioners have come up in revision to this Court.

7. Mr. Khiyal Muhammad Khattalk, learned counsel for the petitioners, strenuously argued that 1/12th share of the disputed field had fallen to the share of Mst. Saddiqa which had only been gifted to Sarfaraz, father of the respondent's vendors and, therefore, neither the vendors could sell nor the defendant‑respondent could validly purchase the entire land inclusive of 11/12th share of the plaintiffs‑petitioners. The learned counsel for the petitioners had serious doubt on the veracity of the findings of the two Courts below that the defendant‑respondent could be legally held entitled to the protection under section 41 of the Transfer of Property Act, 1882.

8. Mr. Safirullah Khan, learned counsel for the respondent, on the other hand, contended that Sarfaraz, being a co‑sharer in possession, had validly sold while the defendant‑respondent had rightly purchased the entire suit land. He also submitted that the predecessor of the vendors was recorded as co‑owner in possession of the entire suit land and, therefore, being a bona fide purchaser for consideration and without any notice of the rights of the plaintiffs petitioners, was entitled to the protection under section 41 of the Transfer of Property Act, 1882.

9. The first question which calls for determination in this revision petition is, whether Gut Faraz and Attaullah, sons of Sarfaraz, vendors of Noor Rehman, defendant‑respondent, having inherited only 1/12 share in the disputed land, were competent to make sale of entire land to the defendant vendee aforesaid. The learned counsel for the defendant‑respondent argued that vendors being co‑sharers and in exclusive possession of entire land could legally transfer it to the defendant‑respondent. Had it been so, then the contention of the learned counsel for the defendant‑respondent would have been tenable. It is not a case of a person who is in exclusive possession of a certain portion of joint property who can alienate that property and that the alienation will be subject to any adjustment which takes place at the time of partition of the joint property. In support of this proposition reference may be made to: Syed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26 and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC

9. In the latter case the following observations of their Lordships are pertinent:‑‑‑ "A plain consideration of the nature of the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. The vendee of a co‑sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property, no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to its vendee, so long as there is no partition between the co‑sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co‑sharers: Sarfaraz, father of Gut Faraz and Attaullah, had become co‑owner and in possession of 1/12 share of the disputed land as a donee which rights were inherited by the vendors aforesaid and were passed on by way of sale to Noor Rehman, defendant‑respondent. Sarfaraz, as stated earlier, was not in possession of the entire land as a co‑sharer but was co‑owner in possession of 1. ,1/12 share and was in occupation of remaining 11/12 shares as a tenant‑at‑will paying half share of produce to the plaintiffs‑petitioners. It is a settled principle that the transferee from a co‑sharer is clothed with the same rights as the co‑sharer has in the property, but if the co‑sharer transfers in excess of his share in the property, then the transferee will step into the shoes of the co‑sharer only to the extent of the share which the transferor owns in the whose property and no more. In this context, the principle laid down in Muhammad Shafi and others v. Mirza and others PLD 1959 (W.P. Lahore 398) is to the following effect:‑‑‑ "The mere fact that in law a co‑sharer is deemed to have a share in every fragment of the undivided property does not entitle him to alienate any interest in the property in excess of his share which he owns in the property." This view was also found to be consistent with the principle embodied in section 4‑4 of the Transfer of Property Act (IV of 1882) which provides that a transferee from a co‑owner acquires such interest or share in the joint property as the co‑owner possesses in the property. I am, therefore, of the considered view that Gul Faraz and Attaullah were not competent to sell more than 1/12th share and Noor Rehman, defendant‑vendee, did not acquire proprietary rights in the excess thereof on the basis of the unregistered sale deed photo copy Exh. DW.1/1. In consequence, he had become co‑owner to the extent of 1/12th share only.

10. Let me now revert to the second contention of the learned counsel that the defendant‑respondent was a bona fide purchaser of the land for consideration and without any notice of the rights of the plaintiffs‑petitioners which plea had found favour with the learned Courts below. Reliance had been placed on the principle contained in section 41 of the Transfer of Property Act, which reads as under:‑‑‑ "

41. Transfer by ostensible owner.‑‑‑Where, with the .consent, express or implied, of the persons interested in immovable property, a person is ‑the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it; provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith." The following considerations were held necessary for the application of section 41 in a recent precedent case of Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53):‑‑‑ "(i) the transferor is the ostensible owner; (ii) he is so by the consent, express or implied, of the real owner; (iii) the transfer is for consideration; (iv) the transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer." It would be noticed that none of these conditions, excepting condition No. 3, have been satisfied in the instant case. In the revenue record, as state earlier, the vendors were recorded as co‑owners of 1/12th share in the proprietary column and partly co‑sharers and partly as tenants‑at‑will in the column of cultivation. Thus the transferors were neither ostensible owners o the entire land nor they were so shown by the consent, express or implied, of the plaintiffs‑petitioners, nor the defendant‑respondent had acted in good faith taking reasonable care to ascertain that the transferors were competent to transfer the entire land. The two Courts below had, there for, fallen into grave error to hold that the defendant‑respondent was entitled to the protection under section 41 of the Transfer of Property Act. Having regard to the nature of the suit and the fact that the land continued to be ostensibly in the revenue record, to the extent of 1/12th share in the names of the vendor of the defendant‑respondent, the inferences drawn were wholly unfounded and had proceeded upon assumptions not supported by any entries of the revenue record. Both the Courts below have, therefore, arrived at the conclusions by mis‑reading the evidence on the record.

11. For the aforesaid reasons, the judgments and the decrees passed by the two Courts below suffering as they are with serious illegality and material irregularity resulting in miscarriage of justice are set aside. Consequently, decree for declaration that the plaintiffs‑petitioners are owners of 11/12th share of the suit land is granted and the entries of the revenue record showing the defendant‑respondent as owner of entire land as without payment of rent are annulled. In consequence, a decree for symbolic possession of,‑11/12th share of the land is also passed in favour of the plaintiffs‑petitioners. The parties, due to partial success of the suit, are left to bear their own costs. A.A./1402/P Revision partly accepted.