Rabeya Khatun and Others V. Monir Uddin 23 BLD (AD) 2003 153

 Fact in Brief 

Narayon Chakroboty the son of Durga charan Paarasara sold 1.10 acres of land to plaintiff no.1 and 2.04 acres to plaintiff no.2 on December 30.1977. In the deed of Kabala it was described that he inherited the property  from his father and uncle .But his father died on 26th June 1978. When the plaintiff took steps for mutation of their names by filling case in 1980 at that time Narayan raised objection that he has sold 86 and half acres of land to defendant no.2 and 3 by kabala deed registered on 14th March 1979. Thereupon mutation case was rejected up to the appellate stage and thus the plaintiff was constrained to file the suit the concerned court for remedy.

Issues

Whether Narayan was real owner or not .

Whether he was clothed with as the ostensible owner.

Rule of Law

Section 41 and 43 of the Transfer of Propery Act, 1882.

Application to the fact

For the  applicability of section 41 of the Act on the case of Ram Koomer koondoo vs Mac queen primarily two things must concur  (1) the person means ostensible owner who has no real title was clothed with in sigma of ownership with the consent express or implied of the real owner and  (2) the person purchasing the value from ostensible owner shall take care to ascertain that his transferor has authority to make the transfer. The learned council before petitioners submits that upon erroneous view of the provision of section 41 of TP Act as well as settled principles of law as regards purchase from ostensible owner. The HCD and the court of Appeal below were in serious error in holding in the light of section 41 of TP Act, 1882.The plaintiffs have not acquired any title in the land purchased by them from Narayan in 1977. The appellate court has reversed the judgment and decree of trial court of the findings that reliable evidence could not establish that Narayan transferred the land fraudulently and were not of the fact at the time of 1977 the father of Narayan was alive.

Decision:

Though at the time of making of kabala it was recited in the kabala deed that he got the property by inheritance and by gift but the plaintiff could not place before the court the deed of gift. It was seen that at the time of making purchase plaintiff very much aware of their vendor’s father was alive. It was held that a person purchasing not from real owner can protect himself by showing that he acted as a prudent person.

Conclusion: 

As the plaintiff did not make any inquiry into the title deed, he cannot claim protection. The principle that a man cannot give what he has not apply.