Smt. Rajkumari Garg v. S.M. Ezaz & Anr

order." b) In Shikha Properties (P) Limited v. S. Bhagwant Singh and Ors., reported in 74 (1998) DLT113, it was held that cases where agieement to sell is executed with irrevocable power of attomey and full consideration having been paid, would be covered by Section 202 of the Contract Act, 1872 since, the pm^chasers deal with such properties practically as owners for fairly long and have "interest" in it. Thus in such a case agent has an mterest in properly which is the subject matter of the agency and which cannot be terminated to the Page 20 of24 Hi. r ( 'i \ prejudice of such interest in tenns of Section 202 of the Contract Act, 1872.

¶33In the present case, at the time of sale of the property by the plaintiff in favour" of defendants No.3 and 4, she executed the following documents: a. Agi"eement to Sell dated 07.07.1998. b. General Power of Attomey dated 07.07.1998. c. Will dated 07.07.1998. d. Possession Letter dated 07.07.1998. e. Receipt of Rs.24.5 lac dated 07.07.1998. f Affidavit dated 07.07.1998. g. Receipt of Rs.50,000/- dated 07.07.1998.

¶34In view of the abovementioned facts and circumstances, it is clear that the present suit is barred under Section 53-A of the Property Act.

¶35The next ground taken in the apphcation filed by defendants No. 1 & 2 is that the suit is also barred and is not maintainable under Section 41 of the Property Act. The said Section reads as under:- "41. Transfer by ostensible owner.- Where, with the consent, express or unphed, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the ti"ansfer shall not be voidable on the ground that the ti'ansferor was not authorized to make it: Pro"vdded that the transferee, after takhig reasonable cai"e to ascertain that the ti"ansferor had power to make the transfer, has acted in good faith." Page 21 of24

¶36From the reading of the above said Section, it appears that to attr act the benefit of Section 41 of the Property Act, the claimant has to make out a case in order to take benefit of protection under this provision. The principles under this provision have been laid down by the Supreme Court in the following cases:

(a) Hardev Singh vs. Gurmail Singh fPeadl bv LRs.. reported in (2007) 2 Supreme Court Cases 404, the relevant paras of which read as under:- "9. Apphcation of Section 41 of the Act is based on the law of estoppel to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained, he could not question the legahty of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.

¶10The ingredients of Section 41 of the Act ar^e: 1) the transferor is the ostensible owner; ^ 2) he is so by the consent, express or imphed, of the ■<|> . real owner; 3) the transfer is for consideration; 4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer."

(b) Ka.shmir Singh and others vs. Panchavat Samiti, Ferozpur and others, reported in (2004) 6 Supreme Court Cases 207, the relevant para of which reads as underl et (OS) No. 243/2009 ir \ "9. Under section 41 of the Transfei" of Propeity Act, transfer made by an ostensible owner with the consent, e^qpress or implied of the real owner is protected provided that the transferee after taking reasonable care to ascertain that the transferor had the power to make transfer had acted in good faith. Learned counsel for the appellant was unable to show from the record that the State government had h ansferred the land in favour of the appellant acting as an ostensible owner with the consent, express or imphed, given by the respondent in favour of the State Government. Learned counsel for the appellant was also unable to show that the appellant had taken any caie to ascertain that the State Govermnent was either the owner or had the power to transfer the land and that he had acted in good faith. On the contraiy, it has been brought on record that the appellant had taken the land on lease from the respondent in the year 1989-90 which clearly demonstrates that he knew that the respondent was the ovmer of the land. Even in the Zamabandi, Exhibit P-9, wherein the State Government has been shown to be the owner, the possession of the appellant in column No. 5 has been shown to be through the respondent-panchayat samiti. In spite of knowing all these facts &e appellant did not take care to ascertain the title of his vendor. In these cucumstances the appellant is not entitled to the protection provided under section 41 of the Transfer of Property Act."

¶37In view of the facts aheady mentioned in the earher part of my order, it is clear-that all the ingi-edients of Section 41 of the Property Act are strictly apphcable in favour of defendants No. 1 &

¶2It is not in dispute that the plaintiff was the ovmer of the property. But, the conduct of the plaintiff also shows that with her consent, the suit property was sold by her in favour of defendants No.3 & 4. In the agreement to sell, defendants No.3 & 4 were allowed to further sell the IT J i propeity to anyone. There was a complete express consent mentioned in the Agreement to Sell. The said tiansfer made by the plaintiff was also for consideration which has been received by the plaintiff to the tune of Rs.25 lac and the said fact is not disputed by her. The tiansferee, i.e. defendants No.3 & 4 had acted in good faith to sell the property to defendants No. 1 & 2 taking reasonable care to ascertain and had the power from the transferor to fransfer the said property m view of Clause-18 of tire Agreement which reads as under:- "18. That the Second Parly shall be vested with rmfettered and intenupted rights and powers to fiuther sell or otherwise transfer the said portion in any manner in whole or in parts, to anybody and the First Party shall have no claim or objection for the same."

¶38Hence, all the requfrements of Section 41 of the Property Act have been satisfied in the present case. This suit is ban'ed under Section 41 of the Property Act.

¶39In view of the above-said reasons, the planitiff has no cause of action to file the present sirit which itself is baned rmder the law. The present application filed by the defendants is allowed and accordingly, the plaint of the present suit is rejected. All pending apphcations, if any, also stand disposed of. MANMOHAN SINGH, J? MARCH 07,2012 ka

* HIGH COURT OF DELHI: NEW DELHI % Judgment pronounced on: 07.03.2012 + I.A Nos.7178/2009 & 13107/2011 in CS (OS) No.243/2009 RAJ KUMAR! GARG Plaintiff Through Mr. G.S. Raghav Adv with Mi\ Pankaj Kmnar Adv Versus S.M. EZAZ & ORS. Defendants Thi-ough Mr. K.R. Chawla, Adv with Mr. Sunil Venna & Mr. Ai-vind Yarma, Advs. CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH. J. 1. By this order 1 propose to decide two abovementioned applications. The brief suimnary of the facts is that the plaintiff herein has filed the present suit for possession and perpetual injimction for the commercial property bearing No.23, Ground Floor, Defence Colony Market, New DeUii-l 10024, admeasuring about 92.78 sq yai'ds (hereinafter refened to as suit property). The plaintiff claims to be the exclusive owner of the suit property having perpetual leasehold rights granted to her by Land & Development Office, Ministry of Rehabihtation, Goveriunent of India, Ninnan Bhawan, vide perpetual lease deed dated 19.12.1974, which now consisting of basement, gioimd floor, fir'st/floor and second floor. :z-V 2. The plaintiff states that she had received the suit propeity thiough funds received under a duly signed voluntary "Family Settlement" dated 11.07.1974 executed between Late Sh. Lala Ram, Shyam Behari, Bhagwan Dass, BaUaishan and Smt. Kalawati w/o Sri Badi'i Prasad. An amount of Rs. 32,880/- was given to the plaintiff to purchase the suit property with a specific condition that the plaintiff win have no right to sell the property so purchased fi'om the money provided by them. Accordingly, a hfetime limited right to use/enjoy and the income generated there from The plaintiff pm-chased the suit property for a consideration of Rs. 30,000/-. 3. Further, the plaintiff states that she was in actual possession of the suit property rmtil one Mr. Dinesh Gupta, s/o Late R.K.- Gupta and his mother Smt Niimala Gupta, fraudulently obtained plaintiffs signatur-e and thmnb impression on some documents such as Agreement to Sell etc. which were written in English. According to the plaintiff, she does, not know how to read and write in Enghsh, therefore, she could not read the documents in English and lurder misrepresentation of facts and law she signed those documents. They gave her a sum of Rs.25 lac and took physical possession of the suit property by execution of an Agreement to Sell dated 07.07.1998 between them. But, as the family of the plaintiff was against the sale of the suit property to the said Dinesh Gupta and his mother, therefore, the plaintiff immediately informed them in July, 1998 only that she did not want to sell the suit property and that all the documents including agr'eernent to sell dated 07.07.1998 be treated as cancelled. She also offered to retum their Rs.25 lac. 4. According to the plaintifi^ a fraud was committed by said Dinesh Gupta and his mother Nirmala Gupta, the defendant No.3 and 4 herein who sold the suit property to defendants No. 1 and 2 by way of Agreement to Sell dated 01.05.2004 for a sum of Rs.35 lac without obtaining proper permission from the plaintiff or the Government of India. The entfre sum was misappropriated by them. She also filed an FIR being No.685/04 on 17.12.2004, with the Defence Colony Pohce Station against defendants No. 3 and 4 in this regard. 5. In the written statement, the defendant Nos.l & 2 have raised the defence that the suit itself is not maintainable as it has been filed with the intention to harass the defendants. The following defences have been raised by the defendant Nos. 1 and 2 in the written statement: a) It is stated in the written statement that the suit is not only malafide and false but, it is also not maintainable under the provisions of law. The defendants No.l & 2 are the bonafrde pmchasers of the suit property. b) It is frirther submitted that the suit is highly malafide and a gioss abuse and misuse of the judicial process. After selhng the property to the defendants No. 3 & 4 in 1998, the