However, both the Courts have declined the relief of declaration and possession on the ground that the defendants No. 3 to 12 are bona fide purchasers. In the considered opinion of this Court, the question which arises for consideration is:-
"whether a purchaser of the property from a vendor who has no right, title or interest in the property, can claim to be bona fide purchasers as per Section 41 of the Transfer of Property Act."
3. As noticed earlier, the declaratory decree through which defendant No. 1 was claiming ownership has already been held to be illegal, null and void ab initio being result of impersonation. Such findings of fact have not been challenged before this Court. It is further not in dispute that defendants No. 3 to 12 are residents of the same village where the plaintiff as also Avtar Singh, defendant No. 1 resides. In the considered opinion of this Court, defendants No. 3 to 12 have not complied with the requirements of Section 41 of the Transfer of Property Act. Section 41 provides that a person who is ostensible owner transfers the property for valuable consideration with the consent, express or implied, of the person interested in the immovable property. In the present case, no express or implied consent of Wazir Singh, the appellant-plaintiff who was the owner of the property has been pleaded.
4. The plea of bona fide purchaser is based upon Section 41 of the Transfer of Property Act, 1882. Section 41 of the Transfer of Property Act is extracted as under:-
"Transfer by ostensible owner - Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it:
Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
5. In the considered opinion of this Court, before a plea on the basis of bona fide purchaser is allowed, the party pleading has to prove :-
1. The transferor was/is the ostensible owner.
2. Ostensible owner is the owner by the consent, express or implied, of the real owner.
3. The transfer is for consideration.
4. Transferee has acted in good faith and taken reasonable care to ascertain that the transferor has the power to transfer.
6. In the present case, defendants No. 3 to 12 have not pleaded that the transfer in favour of ostensible owner was with the consent of the plaintiff-appellant express or implied. In absence of such pleadings and evidence, ingredients of Section 41 of the Transfer of Property Act does not stand fulfilled.
IN THE HIGH COURT OF PUNJAB AND HARYANA
RSA No. 2697 of 1996 (O&M)
Decided On: 07.03.2018
Wazir Singh Vs. Avtar Singh and Ors.
Hon'ble Judges/Coram:
Anil Kshetarpal, J.
Citation: AIR 2018 (NOC) 859 P&H
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