2017 S C M R 81

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

GHULAM RASOOL and others---Appellants

Versus

NOOR MUHAMMAD and others---Respondents

Civil Appeal No. 164-L of 2010, decided on 7th September, 2016.

(Against the order dated 13.4.2006 of the Lahore High Court, Multan Bench, Multan
passed in C.R. No. 1036 of 2002)

(a) Transfer of Property Act (IV of 1882)---

----S. 41---Transfer by ostensible owner---Bona fide purchaser, principle of---Essential

pre-requisites---Principle of bona fide purchaser as enunciated by S. 41 of the Transfer of
Property Act, 1882 was founded upon the principles of equity---Essential ingredients of
the said principle were that the transferor was the ostensible owner; that the transfer was
made by express or implied consent of the real owner; that the transfer was made for
consideration; and that the transferee while acting in good faith had taken reasonable care
before entering into such transaction---Said four essential ingredients must co-exist in
order for a person to take the benefit of the equitable principle of bona fide purchaser.

(b) Transfer of Property Act (IV of 1882)--

----S. 41--- Transfer by ostensible owner---Bona fide purchaser---Scope---Error in

revenue record---On account of some unintentional or deliberate error committed by the
revenue staff in the revenue record which excluded the name of the lawful owner of the
property therefrom and the property was shown to be in the name of some other person
who was not the owner of the whole or a part thereof, would not by itself deprive and
denude the true and actual owner from the title of the property---Therefore, in such a'
situation made by the person, who was not the owner, to an alleged bona fide purchaser
claiming protection under S. 41 of the Transfer of Property Act, 1882, could not be
construed to be made with the express or implied consent of the real owner.

(c) Transfer of Property Act (IV of 1882)--

----S. 41--- Transfer by ostensible owner---Bona fide purchaser-- Scope---Joint

owners/co-owners of inherited property---Error in revenue record---Due to an error in
revenue record which excluded the name of first joint owner of the property and the
property was shown to he only in the name of the second joint owner, would not by itself
deprive and denude the first joint owner from the title of the property--- Sale of property
made by the second joint owner, in such circumstances, to an alleged bona fide purchaser
claiming protection under S. 41 of the Transfer of Property Act, 1882, could not be
construed to be made with the express or implied consent of the first joint owner---
Unauthorized sale to the extent of first joint owner's share in the suit property would be
void and the purchaser would not qualify the bona fide purchaser test under S. 41 of
Transfer of Property Act, 1882 and, therefore, he could not take up the plea of bona fide
purchaser to protect the sale in his favour.

Suit property was inherited by four brothers after the death of their father, and
they all became the joint owners of the property. Mutation of inheritance was attested in
favour of all four brothers but subsequently on account of some lapse or deliberate error
by revenue officials the names of two of the brothers ("plaintiffs") were omitted form the
revenue record, and the other two brothers ("defendants") were shown to be the owners of
suit property. Defendants sold the suit property, which sale was challenged by the
plaintiffs on the ground that sale was unauthorized. Purchaser of suit property claimed
that he was a bona fide purchaser in terms of section 41 of the Transfer of Property Act,
1882 and had bought suit property after having carefully examined the revenue record,
which only showed the defendants as the owners, and that he had no notice that the
plaintiffs were the co-owners and their names had been wrongfully omitted from the
revenue record.

Purchaser of suit property had never claimed that the plaintiffs had transferred
their share in the joint property in favour of the defendants (other two brothers) by any
lawful transaction/means i.e. by exchange, gift, sale, relinquishment etc. Thus if the
purchaser had taken reasonable care in going into the genesis of the ownership, and
examining the record in depth, which they as purchasers were required to do so, they
would have found out that the property being an inherited property was originally owned
by the father of plaintiffs and defendants which devolved upon his legal heirs i.e. four
brothers jointly and that all four brothers still continued to be the co-owners of the
property; and that the exclusion of plaintiffs' name, from the revenue record was not on
account of any legal or authorized transaction or mode, rather from either a human error
or because of some tainted reason. Mere omission of plaintiffs' name in the revenue
record in no manner could be construed to mean that they had consented either expressly
or impliedly for the sale in favour of the purchaser and that the latter took reasonable care
in good faith, within the contemplation of section 41 of the Transfer of Property Act,
1882. Unauthorized sale to the extent of plaintiffs' share in the suit property was void and
the case of the purchaser did not squarely qualify the test of section 41 and, therefore, he
could not take up the plea of bona fide purchaser and the sale could not be protected on
such account. Appeal was dismissed accordingly.

Muhammad Kazim Khan, Advocate Supreme Court for Appellants.

Riasat Ali Chaudhry, Advocate Supreme Court and Zaheer-ud Din Babar,
Advocate Supreme Court for Respondents Nos.1-7, 9-15 and 17-26.

Ex parte for Respondents Nos. 8, 27, 31, 32 and 35.

Date of hearing: 7th September, 2016.

ORDER

MIAN SAQIB NISAR, J.---The respondents' suit for declaration challenging the
sale made in the appellants' favour by some of the respondents of the case, to the extent
of their (plaintiffs) share was dismissed by the learned Trial Court, however the appeal of
the respondents (plaintiffs) was accepted and the suit was decreed. The civil revision filed
by the appellants before the learned High Court was dismissed.

2. Leave in this case was granted to consider if the appellants in the facts and
circumstances of the case are the bona fide purchasers of the property.

3. The facts of the case are that Muhammad Siddique was the original owner of the
property in question who was survived by four sons, namely, Ahmad Yar, Muhammad
Yar, Ghulam Muhammad and Jewan. The mutation of inheritance was attested in favour
of all the brothers but subsequently for unknown reasons seemingly on account of lapse
or deliberate error on part of the revenue authorities in the following record (perhaps the
jamabandi), the names of Ghulam Muhammad and Jewan were omitted and-the other two
brothers, namely, Ahmad Yar and Muhammad Yar were shown to be the owners who
sold the suit land i.e. which they had inherited along with their two brothers from their
father, vide mutation No.13 dated 30.7.1992. The legal heirs of the deceased brothers
have challenged the mutation vide suit mentioned above on account that the sale on
behalf of the plaintiffs' side is unauthorized. The appellants took up the plea that they are
bona fide purchasers and have bought the property after having examined the revenue
record. This plea did find favour with the learned Trial Court and the suit was dismissed,
while in the appeal the view of the learned Appellate Court is otherwise which has
discarded the bona fide plea of the appellants and allowed the suit. This view has been
affirmed by the learned High Court in revision.

4. The learned counsel for the appellants states that the appellants have taken due
care before buying the property and have examined the revenue record per which Ahmad
Yar and Muhammad Yar are shown to be the exclusive owners of the suit property. They
have paid the full price of the property and have no notice at that time that Ghulam
Muhammad and Jewan were also co-owners and that their names have been illegally and
wrongfully omitted from the revenue record. Thus in the facts and circumstances, the
provisions of Section 41 of the Transfer of Property Act, 1882 are duly attracted and,
therefore, the suit of the respondents has been rightly dismissed by the learned Trial
Court.

5. We have heard the learned counsel for the parties and find that the rule of bona
fide purchaser as enunciated by section 41 ibid is founded upon the principles of equity.
The said section reads as under:-

"41. 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."

The essential ingredients of this section are, (a) that the transferor was the ostensible
owner; (b) that the transfer was made by consent express or implied of the real owner; (c)
that the transfer was made for consideration; and (d) that the transferee while acting in
good faith had taken reasonable care before entering into such transaction. These four
imperative/essential ingredients must co-exist in order for a person to take the benefit of
the equitable principle, however, merely on account of some error committed by the
revenue staff in the revenue record unintentional or deliberate or motivated which
excludes the name of the lawful owner of the property therefrom and the property, shown
to be in the name of some other person who is not the owner of the whole or a part
thereof by itself shall not deprive and denude the true and actual owner from the title of
the property and this by no means can be construed that the transfer, to the person
claiming protection of the rule of equity ibid by a person who actually is not the owner is
being made by consent express or implied of the real owner. This even is not the case of
the appellants that the transfer to them was with the consent of two brothers whose names
have been illegally and unauthorizedly removed from the column of ownership by the
revenue authorities, so as to bring the case within the purview of section 41 ibid. In the
instant case as it is an undisputed fact that the property in question was owned by
Muhammad Siddique who was survived by four sons (named above) and they all became
the joint owners of the property. The entries in the revenue record to that effect were
made and are vivid and uncontroverted. How and why the names of the two brothers
from the revenue record were removed is absolutely obscure. It is not the case of the
present appellants that the said brothers had transferred their share in the joint property
(purchased by them) in favour of the other two brothers by any lawful transaction/means
i.e. by exchange, gift, sale, relinquishment etc. Thus if the appellants had taken
reasonable care in going into the genesis of the ownership, and examining the record in
depth, which they as purchasers were required to do so, they would have found out that
the property being an inherited property was originally owned by Muhammad Siddique
which devolved upon his legal heirs i.e. four brothers jointly and that all these four
brothers still continue to be the co-owners of the property; and that the exclusion of
Ghulam Muhammad and Jewan's name from the revenue record is not on account of any
legal or authorized transaction or mode, rather for either a human error or because of
some tainted reason. Be that as it may, the mere omission of Ghulam Muhammad and
Jewan's name in the revenue record in no manner can be construed to mean that they had
consented either express or implied for the sale in favour of the appellants and that the
appellants took reasonable care in good faith, within the contemplation of condition No.
(iv) of section 41 ibid. Obviously such unauthorized sale to the extent of their share in the
sold property was void and that the case of the appellants do not squarely qualify the test
of section 41 and, therefore, they could not take up the plea of bona fide purchaser and
their sale could not be protected on that account. Resultantly, this appeal has no merit and
is hereby dismissed.

Before parting, it may be observed that the copy of this order be sent to the
concerned Member, Board of Revenue who shall consider taking action against the
delinquent revenue officers who are instrumental in omitting or excluding the,names of
Ghulam Muhammad and Jewan from the revenue record which'I c-cording So the
appellants case has misled them to buy the property and they remained entangled in
litigation for 31 long years. If they (revenue staff) are found responsible and are still in
service the competent authority may consider taking appropriate action against them in
accordance with law.

MWA/G-16/SC Appeal dismissed.