Basant Singh And Others vs Surjit Singh And Others

Anil Kshetarpal, J.

Defendants No.1 to 6-appellants are in the regular second appeal against the judgment passed by the learned first appellate court reversing the judgment and decree passed by the learned trial court.

In the considered opinion of this Court, question which is required to be answered is:-

"Whether in the facts and circumstances of the present case defendants are proved to be bonafide purchasers and, therefore, different sale deeds executed in their favour are protected under Section 41 of the Transfer of Property Act?"

Undisputed facts are that Smt. Bhagwan Kaur was owner of land measuring 65 kanals and 2 marlas. She sold the aforesaid land to Mohinder Singh son of Amrik Singh, who in turn sold the land to defendants no.12 to 17 (defendants no.12 to 16 are sons of plaintiff-Surjit Kaur) and Smt. Surjit Kaur vide sale deed dated 13.07.1978. While sanctioning the mutation of the sale deed, name of Surjit Kaur was incorporated, however, that was not carried in the next jamabandi(record of rights). It is also undisputed that family of Surjit Kaur including Surjit Kaur entered into an agreement to sell approximately 37 acres of land vide agreement to sell dated 28.07.1989 in favour of Joginder Singh son of Jagir Singh and Basant Singh son of Bachhittar Singh. The agreement to sell is thumb marked by Smt. Surjit Kaur. Pursuant to the aforesaid agreement to sell, 9 sale deeds were executed in favour of defendant nos.1 to 6. Smt. Surjit Kaur is executant of registered sale deed dated 25.10.1989 registered on 31.10.1989 in favour of Basant Singh. Smt. Surjit Kaur, plaintiff-respondent challenged the sale deeds on the ground that out of land measuring 65 kanals and 2 marlas, which was purchased by her along with her sons vide sale deed dated 13.07.1978 but due to clerical error by the revenue official, her name was not incorporated in the revenue record, therefore, sale deed to the extent of 25 kanals and 2 marlas is bad in law because she is not executant of the sale deed.

Defendants contested the suit and pleaded that they were bonafide purchasers for valuable consideration and therefore, any error by the revenue official cannot take away their rights.

Learned trial court after appreciation of the evidence held that the defendants are bonafide purchasers for valuable sale consideration without knowledge of the error committed by the revenue official, hence, sale deeds in their favour cannot be set aside.

Learned first appellate court has reversed the findings of the learned trial court on the ground that the defendants-appellants were required to examine the mutation which was entered in the year 1979 and, therefore, they are not bonafide purchasers.

This court has heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the courts below and the record.

In the considered opinion of this court, the findings of the first appellate court are wrong for the following reasons:-

(i) It is undisputed that after sanction of the mutation in the year 1978, name of Smt. Surjit Kaur did not figure in the record of rights.

(ii) Sale deeds have been executed by sons of Smt. Surjit Kaur and there is no evidence that the sons of Smt. Surjit Kaur have any adverse interest or there is any clash of interest between her and her sons.

(iii) The agreement to sell through which approximately 37 acres of land was agreed to be sold includes the entire land measuring 65 kanals and 2 marlas which was purchased by Smt. Surjit Kaur and her sons. Smt. Surjit Kaur had thumb marked the agreement to sell.

(iv) Smt. Surjit Kaur herself has executed a sale deed out of the land agreed to be sold vide sale deed dated 25.10.1989 in favour of Basant Singh and the sale deed was registered on 31.10.1989 when 3 more sale deeds were registered on the same day.

(v) All the sale deeds are scribed by one deed writer and Smt. Surjit Kaur never raised an objection while getting the sale deed dated 25.10.1989 scribed in favour of Basant Singh that she is owner of more land.

Learned first appellate court has overlooked these aspects while reversing the judgment of the learned trial court. First appellate court has also overlooked that Smt. Surjit Kaur had executed sale deed Ex.D8 on 25.10.1989 registered along with other 3 sale deeds on 31.10.1989.

In the considered opinion of this court, there cannot be a better case than the facts of the present case which clearly prove that the defendants are bonafide purchasers of the property in dispute as there are neither allegation of any collusion alleged between the purchasers and her sons nor it is alleged that her sons have defrauded her.

In such circumstances, this court is left with no other choice but to set aside the decree passed by the learned first appellate court and restore the judgment and decree passed by the learned trial court.

The question of law as framed is answered in favour of the appellants.

In view thereof, the regular second appeal is allowed.

Prayer in this application is for bringing on record the legal representatives of respondent no.1.

For the reasons mentioned in the application, which is supported by an affidavit, the application is allowed, subject to all just exceptions. The legal representatives mentioned in paragraph 3 of the application are brought on record for the purpose of prosecuting this appeal only.

Office is directed to carry out necessary corrections in the memorandum of parties.