2014 Supreme(HP) 621

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAJIV SHARMA AND DHARAM CHAND CHAUDHARY, JJ.
Smt. Sushima Kishandev Kaushal - Appellant
Versus
The Council for Tibetan Education - Respondent
OSA No. 4 of 2006.
Decided on: 27th May, 2014

A person who is not the real owner of a property but is clothed with the insignia of ownership with the consent, express or implied, of the real owner, and who transfers the property for consideration to a transferee who has acted in good faith after taking reasonable care to ascertain that the transferor had the power to transfer the property, is protected under Section 41 of the Transfer of Property Act, 1882.

Headnote:

FOREIGN EXCHANGE REGULATION ACT, 1973 - SECTION 31 - H.P. TENANCY AND LAND REFORMS ACT - SECTION 118 - SALE DEED - MUTATION - TRANSFER OF PROPERTY ACT - SECTION 53 - EVIDENCE ACT - SECTION 114 - TRANSFER OF PROPERTY ACT - SECTION 41 - SALE OF LAND TO FOREIGN NATIONAL - VALIDITY - CONDITIONS - BURDEN OF PROOF - OSTENSIBLE OWNER - CONSENT OF REAL OWNER - REASONABLE CARE - GOOD FAITH - SALE DEED EXECUTED BY MOTHER OF PLAINTIFF - PLAINTIFF CLAIMING TO BE REAL OWNER - MUTATION ATTESTED IN MOTHER'S NAME - PLAINTIFF'S ADMISSION OF MOTHER'S POSSESSION AND MANAGEMENT OF SUIT LAND - NO EVIDENCE OF FRAUD OR COLLUSION - MOTHER HELD TO BE OSTENSIBLE OWNER - SALE DEED VALID - NO VIOLATION OF SECTION 31 OF FERA OR SECTION 118 OF H.P. TENANCY AND LAND REFORMS ACT.

Fact of the Case:

Plaintiff filed a suit for declaration and possession of suit land, claiming to be the real owner and alleging that the sale deed executed by her mother in favor of the defendant was void and that the defendant was not a bona fide purchaser. The defendant claimed to be a bona fide purchaser for consideration and denied the plaintiff's claim of ownership.

Finding of the Court:

The court held that the plaintiff was a Benamidar and that the real owner of the suit land was her mother. The court also held that the mutations attesting the transfer of the suit land in the name of the mother were legal and valid. The court further held that the defendant was a bona fide purchaser on payment of consideration and that the transaction of sale was not violative of the provisions contained under Section 31 of FERA and Section 118 of H.P. Tenancy and Land Reforms Act.

Issues: 1. Whether the status of the plaintiff qua the suit land is that of Benamidar? 2. Whether mutations Ext. PW2/3 and PW2/4 attested in the name of Smt. Raj Kumari Bhardwaj, the mother of the plaintiff are illegal, null and void. 3. Whether the defendant is a bonafide purchaser on payment of sale consideration? 4. Whether the transaction of sale in issue is violative of the provisions contained under Section 31 of FERA and Section 118 of H.P. Tenancy and Land Reforms Act?

Ratio Decidendi: 1. The court held that the plaintiff was a Benamidar and that the real owner of the suit land was her mother based on the following factors: a) The sale deeds for the suit land were executed in the name of the plaintiff, but the consideration was paid by her mother. b) The plaintiff admitted in her statement that the suit land was purchased in her name from her mother's funds and that her mother was in possession of the suit land and managing its affairs throughout. c) The plaintiff never visited Dharamshala, where the suit land is situated, from 1969 to 1992, and there was no evidence that she made any arrangements to look after and manage the suit land during this period. d) The mother of the plaintiff was not seen in Dharamshala after two weeks of the sale of the suit land in favor of the defendant. e) The plaintiff and her husband both stated that the mother of the plaintiff shifted to Bombay in 1979 and started living there, and thereafter never came back to Dharamshala during her lifetime. 2. The court held that the mutations attesting the transfer of the suit land in the name of the mother were legal and valid based on the following factors: a) The mutation order showed that there was a Rapat in the Rojnamcha that the plaintiff was a Benamidar and the real owner was her mother Smt. Raj Kumari Bhardwaj. b) The entries in the revenue record were required to be corrected, which in fact were corrected by way of this mutation. c) There was no question of transfer of the suit land in favor of the mother as it was already with her. 3. The court held that the defendant was a bona fide purchaser on payment of consideration based on the following factors: a) The entries in the revenue record, i.e. Jamabandi for the year 1966-67, showed that Smt. Raj Kumari Bhardwaj, the transferor, was recorded owner in possession of the suit land. b) Mutation thereof was attested in her favor on the basis of Rapat on 15.3.1969. c) The defendant, on going through the entries in the revenue record and after having been satisfied qua the clear-cut title of the mother of the plaintiff over the suit land had purchased the same on payment of consideration. d) Even the plaintiff and her husband seem to have participated in the negotiation of the sale of land to the defendant. 4. The court held that the transaction of sale was not violative of the provisions contained under Section 31 of FERA and Section 118 of H.P. Tenancy and Land Reforms Act based on the following factors: a) The defendant had obtained permission from the Reserve Bank of India under Section 31 of FERA to acquire the suit land. b) The plaintiff did not plead or prove that the defendant had violated the conditions of the permission granted by the Reserve Bank of India. c) The plaintiff did not plead or prove that the acquisition of the land by the defendant was barred under Section 118 of the H.P. Tenancy and Land Reforms Act.

Final Decision: The appeal was dismissed.