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IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Bajrang alias Hanumant Tatyaba Kakade another ..... Appellants.
Versus
Smt. Babubai w/o Baburao Pujari others ...... Respondents.
Second Appeal No. 4 of 1987, decided on 4-3-1997.
Advocates appeared :
Rajesh More, for A.V. Anturkar, for the appellant.
Ms. A.R.S. Baxi, for respondent Nos. 1 and 2.
S.G. Surana, for respondent Nos. 3 and 4.
Section 41-Bonafide purchaser took sufficient care, by relying on mutation entries In the name of vendor having partial interest-The agricultural land is purchased-No entitlement to vendee for protection under Section 41.-lf the vendor has only partial interest in the property and disposes of the property of an interest greater than he really has, in such event also the vendee has to establish and prove that he had taken reasonable care and made full enquiries about the title of the property purchased by him. No person can dispose of an interest in the property that is not vested in him and the only exception is that if the purchaser has purchased the property bona fide after making usual enquiry into the title as a reasonable and prudent man of business would do even if the property has been sold by that person who does not have full interest in the property, such purchaser can be protected.
Section 41-Verification of mutation entry-Whether entities purchaser as a bona fide purchaser-Held-Mutation entry of an agriculture land is a fiscal entry and is not a document of title in interest or right-Purchase of agriculture land on the basis of mutation entry-It cannot be said that purchaser has taken reasonable care before the purchase-Entry in the name of vendor does not dispense with the duty of vendee to make usual enquiry with title of vendor-Protection under Section 41 of Transfer of Property Act is not available.- There is no dispute that the suit property originally belonged to Jagannath Tukaram Gaurav and after his death the original plaintiff and the defendant Nos. 3 to 6 succeeded his estate including the house property as well as the agricultural land. Before Court also, there is no dispute that the plaintiffs as well as defendant Nos. 3 to 6 have 1/6th share each in the house property as well as the agricultural lands. The only question is whether the defendant No. 1 who purchased the agricultural and comprising of gat Nos. 846 and 856 situate at Tandulwadi is a bona fide purchaser for value without notice and, therefore, the sale-deed executed by defendant Nos. 3 to 6 in favour of defendant No. 1 cannot be effected and plaintiffs cannot claim 1/6th share each in that property which has been sold by defendants 3 to 6 in favour of defendant No. 1. From the available material it is seen that after the death of Jagannath Tukaram Gurav, the mutation in respect of the aforesaid agricultural land was entered in favour of defendant Nos. 3 to 6. The said mutation entry of Course has been holding the field for about 20 years. There is no other evidence led by the defendant No. 1 that he made further inquiries to find out about the title of the property or that there were other owners. The moot question therefore, is whether the purchaser of an agricultural land who purchases such land after verifying mutation entry can be said to have taken reasonable care in purchasing the property. Can such a purchaser of an agricultural land be termed as bona fide purchaser who has not verified title of the vendor? Mutation entry of an agricultural land is only fiscal entry and is not a document of right and title and, therefore, if a person purchases agricultural Land on the basis of a mutation entry, without further making enquiry about the title, it cannot be said that the purchaser had taken reasonable care before the purchase of the agricultural and. The mutation entry in the name of the vendor does not dispense with the duty of the vendee to make requisite and usual enquiry into the title of the vendor and unless the vendee is able to prove that he has made the usual enquiry into the title of the vendor on the basis of verification of mutation entry, such vendee cannot be said to be entitled to protection under Section 41 of the Transfer of Property Act.
The aforesaid is the test which has to be applied to find out whether the purchaser acted bona fide and took reasonable care and caution in making usual enquiry into the title. If he succeeds in showing that even if he had transacted the business in ordinary way he was not in a position to gather that there was none other owner than the vendors, then such, vendee could be described as bona fide purchaser. On the other hand, if while transacting the business in the ordinary way the vendee would have come to know that there were owners other than the vendor. it cannot be said that such vendee has acted bona fide.
If the vendor has only partial interest in the property and event also the vendee has to establish and prove that he had taken reasonable care and made full enquiries about the title of the property purchased by him. No person can dispose of an interest in the property that is not vested in him and the only exception is that if the purchaser has purchased the property bona fide after making usual enquiry into the title as a reasonable and prudent man of business would do, even if the property has been sold by that person who does not have full interest in the property such purchaser can be protected. However the onus lies on the purchaser to establish that he had acted in good faith and purchased the property after making full enquiries into the title of the vendor and all reasonable care was taken by him before the purchase.
It would be seen that in the present case except the agricultural land sold by defendant Nos. 3 to 6 in favour of defendant No. 1 was mutated in their favour there was no evidence to suggest much less to establish that the defendant No. 1 made full enquiry into the title of the vendors defendant Nos 3 to 6. As already observed a mutation entry of agricultural land in the revenue record is only fiscal entry and that by itself is not a document of title and on the basis of that entry it cannot be assumed that the person in whose favour the entry stands is the title holder of the land. Thus, it is clear that the reasonable care of ordinary man of business expected at the time of transaction was lacking and the defendant No. 1 cannot be said to have taken reasonable steps in making enquiry into the title of defendant Nos. 3 to 6 before purchasing the property in question and therefore he cannot be said to be bona-fide purchaser for valuable consideration without notice.
The appeal Court therefore, cannot be said to have committed any error in granting the decree in favour of the plaintiff.
2.The only question that is canvassed during the course of arguments in this second appeal and which requires answer is :- Whether the original defendant No. 1 is bona fide purchaser of the disputed land comprising of gat No. 846 and 856 situate at Tabulwadi, Taluka Malsiras from original defendants Nos. 3 to 6.
3.The aforesaid question arises from the facts which briefly can be summarised as under:-
Jagannath Tukaram was the original owner of the land comprising of gat No. 846 and 856 situate at Tabulwali, Taluka Malsiras and the house property details of which are given in paragraphs 1 and 2 of the plaint. He died on 23-4-59 leaving behind Babulal (original plaintiff No. 1), Vishranti (original plaintiff No. 2.), Kalavati (original defendant No. 3) Vijaya (original defendant No. 4), Rajabai (original defendant No. 5) and Chhaya (original defendant No. 6). All the aforesaid six heirs accordingly succeeded Jagannath Barav having 1/6th share in the aforesaid properties. The original defendants Nos. 3 to 6 aforesaid sold the disputed property comprising of gat No. 846 and 856 to Bajrang alias Hanumant Tatyaba Kakade (original defendant No. 1) by sale deed dated 30-6-1979. The original plaintiffs filed the suit against the defendants for partition and possession in respect of their 1/6 share in the aforesaid land and also the relief that the sale deed dated 30-6-1979 whereby the defendants Nos. 3 to 6 sold the disputed property to defendant No. 1 be declared as not binding on them. The plaintiffs claimed past as well as future mesne profits. The defence set out by the defendants Nos. 1 to 3 was that after the death of Jagannath the plaintiffs received their share and they are not concerned with the suit property. According to them, after the death of Jagannath names of defendant Nos. 3 to 6 were entered in the revenue record and they cultivated the land for about 20 years and, therefore, the claim of the original plaintiff, if any, shall be deemed to have been relinquished. The defendant No. 1 set out defence that he was bona fide purchaser for valuable consideration without notice and he had taken due care and made proper enquiries before purchase of the aforesaid land. After recording the evidence and hearing the learned Counsel for parties, the trial Court held that plaintiffs were entitled to the possession in respect of the house property and were also entitled to get declaration that the sale deed executed by defendant Nos. 3 to 6 in favour of defendant No. 1 was not binding. The trial Court also held that the plaintiffs failed to prove that the plaintiffs Nos. 1 and 2 released their share in lieu of immoveable property as alleged in paragraph 2 of the written statement. Accordingly on 24-2-83 the trial Court decreed plaintiffs suit declaring that they had 1/6th share each in the suit house and as regards the land sold by defendant Nos. 3 to 6 in favour of defendant No. 1, the trial Court decreed that the plaintiffs will have 1/6th share each in the consideration of Rs. 10,000/- received by defendant Nos. 3 to 6 only.
4.The plaintiffs were dissatisfied with the part of the judgment and decree passed by the trial Court whereby it granted decree in favour of the plaintiffs in respect of agricultural land by directing that they will have 1/6th share each in the consideration of Rs. 10,000/- received by the defendants Nos. 3 to 6 and thereby refusing to grant the decree of partition and possession in respect of their 1/6th share each in the agricultural land. The appellate Court after hearing the parties allowed the appeal and modified the decree of the trial Court by directing that the plaintiffs are also entitled to
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