1971 Supreme(All) 83

Allahbad High Court
JAGMOHANLAL
Asharfi Devi - Appellant
Versus
Prem Chand - Respondent
Decided On : 03/04/1971

A transferee who has purchased a property for valuable consideration without notice of any defect in the title of the transferor is protected by Section 41 of the Transfer of Property Act.

Headnote:

TRANSFER OF PROPERTY ACT - SECTION 41 - LIMITATION ACT - ARTICLE 134-B, 144 - WAQF - ADVERSE POSSESSION - EQUITY OF REDEMPTION - MORTGAGE - POSSESSION - LIMITATION - NOTICE - REGISTRATION.

Fact of the Case:

Plaintiffs filed a suit for recovery of possession of a house and damages. The house was dedicated to a temple by Barati Lal, the great grandfather of the plaintiffs. Jot Prasad, Barati Lal's son, became the Sarverakar after Barati Lal's death. Jot Prasad mortgaged the house to Hanoman Prasad. Jot Prasad's widow, Smt. Bittan Devi, sold the equity of redemption to Lakhpat Rai. Lakhpat Rai redeemed the mortgage and got possession of the house. Plaintiffs filed a suit for recovery of possession of the house.

Finding of the Court:

The lower courts found that the house was a wakf property, that the mortgage and sale of the equity of redemption were invalid, and that the plaintiffs were entitled to possession of the house. The lower courts also found that the suit was not barred by limitation.

Issues: 1. Whether the transfer of the equity of redemption by Smt. Bittan Devi to Lakhpat Rai was protected by Section 41 of the Transfer of Property Act? 2. Whether the suit was barred by limitation under Article 134-B or Article 144 of the Limitation Act?

Ratio Decidendi: 1. Section 41 of the Transfer of Property Act protects a transferee who has purchased a property for valuable consideration without notice of any defect in the title of the transferor. In this case, Lakhpat Rai made reasonable enquiries about Smt. Bittan Devi's title and was informed that she was the owner of the property. Lakhpat Rai was not deemed to have constructive notice of the wakf because the documents creating the wakf were not required by law to be registered. 2. Article 134-B of the Limitation Act applies to suits for possession of mortgaged property. Article 144 applies to suits for possession of immovable property. In this case, the suit was governed by Article 144 because the plaintiffs were seeking to recover possession of the equity of redemption, which is an interest in immovable property. The suit was barred by limitation because the plaintiffs did not file the suit within 12 years of the date when Lakhpat Rai took possession of the property.

Final Decision: The appeal was allowed. The judgments and decrees of the lower courts were set aside and the plaintiffs' suit was dismissed with costs throughout.