IMPORTANT POINT
Transfer by ostensible owner – Good faith in such matters is required to be ascertained not merely by good intentions or absence of bad intentions on part of transferee, but based upon evidence that transferee had taken reasonable care to ascertain that transferor indeed had power to transfer property.

JUDGMENT (ORAL)

M.S. Sonak, J.—Heard Mr. Pritam Talaulikar for the Appellants and Mr. Valmiki Menezes with Mr. A. Shirodkar for the Respondents.

2. This Second Appeal was admitted on 22/4/2014, on the following substantial questions of law:

i. Whether the Courts below were right in holding that appellant was not bonafide purchaser for value?

ii. Whether the Appellate Court below has misinterpreted Section 41 of Transfer of Property Act, while rendering the findings that the appellant is not bonafide purchaser for value.

3. The Appellant is original Respondent No.13 and Respondents No.1, 2, and 3 are the original Plaintiffs in Regular Civil Suit No.17/1983/C, instituted in the Court of Civil Judge, Jr. Division, at Ponda. This suit was decreed on 27/4/2001. The Appeal instituted by the present Appellant against the said Judgment and Decree was dismissed by the 1st Ad hoc District Judge, Panaji on 1/10/2005. Hence, the present Second Appeal on the aforesaid substantial questions of law.

4. The suit concerns a property known as “Siulem Batta” alias “Siulem Baga” situated at Khadpaband, Ponda, Goa (suit property). For the present appeal, it suffices to mention that it was the case of the Plaintiffs that Leopoldo D’Costa (Defendant No.22) who sold one of the plots from out of the suit property vide sale deed dated 27/9/1980 in favour of the Appellant herein, was not the sole owner of the suit property and consequently, the suit plot. It was also the case of the Plaintiffs that the Deed of Partition of the year 1976, based on which the said Leopoldo executed the sale deed dated 27/9/1980 in favour of the Appellant, was also null and void, since, all the co-owners of the suit property were not parties to it. Based on these pleadings, the Plaintiffs sought a declaration that the Deed of Partition, as well as the Sale Deed dated 27/9/1980 were null and void. Similarly, a declaration was sought in respect of two other sale deeds executed in favour of some other parties based on the 1976 Partition Deed.

5. As of now, there is no dispute that the 1976 Partition Deed had not involved all the co-owners of the suit property and, therefore, the same was null and void. So also there is no dispute that Leopoldo was not the sole owner of the suit plot and consequently, had no authority to execute the Sale Deed dated 27/9/1980 in favour of the Appellant. The only issue raised by the Appellant in this Second Appeal is that the Appellant is the transferee from the ostensible owner Leopoldo and since such a transfer was for consideration in good faith and after the Appellant had taken reasonable care to ascertain that the transferor had the power to make the transfer, the Appellant is entitled to the protection of Section 41 of the Transfer of Property Act, 1882 (TP Act). This is the import of the two substantial questions of law formulated in this Second Appeal.

6. Mr. Talaulikar, the learned Counsel for the Appellant submitted that there was nothing on record for the Appellant to suspect about the 1976 Partition Deed. In terms thereof, said Leopoldo sold the suit plot to the Appellant by Sale Deed dated 27/9/2980 which indeed had been allotted to Leopoldo. Further, a copy of the Deed of Partition was handed over by the said Leopoldo to the Appellant at some time before execution of the Sale Deed dated 27/9/1980 and that too in presence of the Plaintiffs who were the children of Leopoldo. Based on this material, Mr. Talaulikar submitted that the Appellant is a transferee from the ostensible owner and consequently, entitled to the protection of Section 41 of the TP Act. He submits that the findings recorded by the two Courts to the contrary, suffer from perversity and this gives rise to the two substantial questions of law as formulated above.

7. Mr. Talaulikar, in the alternate and without prejudice, submits that the Appellant paid consideration of Rs.18,000/- on or about 27/9/1980. The original Plaintiffs are children of said Leopoldo who had su