Supreme Court of India
DUNI CHANDversusVIKRAM SINGH AND OTHERS
- Citation
- 2024 INSC 516
- Decided
- 10 July 2024
- Disposal
- Case Allowed
- Bench
- VIKRAM NATH
Holding
Section 41 cannot be invoked without specific pleading and the consent of the interested party, so the High Court’s extension of its benefit to the purchasers was erroneous, and the decree of the first appellate court declaring the 1988 Will valid and the 1994 Will invalid is affirmed.
Summary
The plaintiff, Tota Ram, claimed ownership of a land based on a registered Will dated 12‑12‑1988 executed by the deceased Beli Ram, while the defendants relied on a later Will dated 16‑05‑1994 to transfer the land to themselves and subsequent purchasers. The trial court dismissed the suit, but the first appellate court declared the 1988 Will valid, the 1994 Will invalid, and granted relief to the plaintiff. The High Court affirmed the validity of the 1988 Will and the invalidity of the 1994 Will but extended the benefit of Section 41 of the Transfer of Property Act to the purchasers (defendants 2, 4 and 5), allowing them to retain the land. The Supreme Court held that Section 41 requires the express or implied consent of the interested party and that the purchasers neither pleaded nor proved such consent or the requisite good‑faith care, making the High Court’s reliance on Section 41 unwarranted. Consequently, the Court set aside the High Court’s extension of benefit to the purchasers, upheld the finding that the 1994 Will was invalid, and restored the decree of the first appellate court in favour of the plaintiff.
Issues considered
- Whether Section 41 of the Transfer of Property Act, 1882 can be invoked in favour of purchasers when there is no specific pleading or evidence of consent of the interested party.
- Whether the High Court erred in extending the benefit of Section 41 to defendants 2, 4 and 5.
- Whether the Will dated 16‑05‑1994 is invalid and shrouded with suspicion.
- Whether the findings of the first appellate court and the High Court on the validity of the 1994 Will constitute pure findings of fact not open to interference.
- Whether the plaintiff is entitled to a declaration of ownership and injunction based on the 1988 Will.
Legislation cited
Subjects
Ostensible ownerSection 41Transfer of Property ActInvalid willLack of pleadingsBetter rightConsent of interested partyGood faith
Judgment
[2024] 7 S.C.R. 1202 : 2024 INSC 516
Duni Chand
v.
Vikram Singh and Others
(Civil Appeal No. 8187 of 2023)
10 July 2024
[Vikram Nath* and Prashant Kumar Mishra, JJ.]
Issue for Consideration
Whether the High Court erred in extending the benefit of Section
41 of the Transfer of Property Act, 1882, to the defendants despite
the lack of specific pleadings, and no evidence to show consent
of interested persons.
Headnotes†
Transfer of Property Act, 1882 – Section 41 – Transfer by
ostensible owner – Consent of persons interested in the
immovable property required – No specific pleading or
evidence showing the consent, whether express or implied, of
the interested persons – Relief granted in favour of defendants
by the High Court relying on Section 41 was unwarranted.
Transfer of Property Act, 1882 – Proviso to Section 41 –
requires that the transferees take reasonable care to ascertain
the transferor’s authority and act in good faith – Defendants
failed to plead or prove these requirements – Hence, reliance
on Section 41 by the High Court unwarranted.
Held: Plaintiff had a registered Will dated 12.12.1988 (‘1988 Will’)
bequeathing the suit land to him – Defendant No. 1 based on
Will dated 16.05.1994 (‘1994 Will’) got his name mutated in the
revenue records and subsequently transferred the land to other
defendants – High Court confirmed the first Appellate Court’s
finding that the 1988 Will was a valid and genuine document, and
the 1994 Will was invalid and shrouded in suspicion – However,
it extended the benefit of Section 41, TP Act, to the purchasers
of the property from defendant No. 1 – Appeal against reliance
on Section 41, TP Act, allowed.
Section 41, TP Act, requires the consent, express or implied,
of persons interested in the immovable property – Plaintiff was
* Author
[2024] 7 S.C.R. 1203
Duni Chand v. Vikram Singh and Others
an interested person as the 1988 Will was in his favour, but no
pleadings or evidence showed that the defendants had obtained
consent from him – Furthermore, the proviso to Section 41
requires transferees to take reasonable care and act in good
faith, which also was not pleaded by defendants 2, 4, and 5 –
Thus, the relief granted by the High Court under Section 41 was
unwarranted, misplaced, and against the pleading and evidence
on record. [Paras 12, 13].
Wills – If vendor has no rights under the invalid Will,
purchasers could not acquire any better rights.
Held: Once the High Court had determined the 1988 Will was
genuine and the 1994 Will was invalid, no rights accrued to
defendant no.1 under the invalid Will – Therefore, defendant no.
2, 4, and 5 could not obtain any better right, title, or interest than
defendant no.1 – Appeal filed by the plaintiffs-appellants allowed.
[Para 14].
Wills – Findings on validity of Will well-reasoned – A pure
finding of fact – No interference
Held: Findings of the first Appellate Court and the High Court
on validity of the 1994 Will being shrouded in suspicion are
well-reasoned and based on evidence on record – It is a pure
finding of fact, and no interference is merited – Appeal by
defendant no.1 dismissed. [Para 15].
List of Acts
Transfer of Property Act, 1882.
List of Keywords
Ostensible owner; Section 41, Transfer of Property Act, 1882;
Invalid will; Lack of pleadings; Better right.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8187 of 2023
From the Judgment and Order dated 29.03.2017 of the High Court of
Himachal Pradesh at Shimla in RSA No. 392 of 2005
With
Civil Appeal No. 8188 of 2023
1204 [2024] 7 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Bimal Jad, Sr. Adv., Ms. Ridhi Jad, Shiv Sagar Tiwari, Ms. Aakanksha
Tiwari, Hemant Sharma, Kshav Choudhary, Yash Pal Dhingra, Ravi
Bakashi, Ms. Sayma Feroz, Manvendra Pratap Singh, Chander
Shekhar Ashri, Ms. Riddhi Jad, Nirdosh Bhola Vishen, O.P. Singh,
Atul Mahan, Ms. Purnima Jauhari, Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
Vikram Nath, J.
1. Both the above appeals assail the correctness of the judgment
and order dated 29.03.2017 passed by the High Court of Himachal
Pradesh whereby the RSA No.392 of 2005 titled Vikram Singh and
others Vs. Tota Ram (since deceased) through LRs was partly allowed
and the judgment and decree passed by the First Appellate Court
was partly upheld and partly set aside.
2. Relevant facts in brief giving rise to the present appeals are as under:
(a). Beli Ram was the owner in possession of the land in dispute.
Tota Ram, plaintiff is the nephew of Beli Ram, being his brother’s
son. According to the plaintiff, he had been cultivating the land in
question for more than three decades and had also been taking
care of Beli Ram. In 1988, out of natural love and affection, Beli
Ram executed a registered Will dated 12.12.1988 bequeathing
the suit land in favour of the plaintiff Tota Ram. Beli Ram died
on 11.07.1994. As the plaintiff had continued in possession from
the time when Beli Ram was alive, he remained in possession
even after death of Beli Ram. However, as the defendant started
interfering with the possession of the suit land, the plaintiff made
enquiry and he came to know that defendant no.1, Vikram Singh,
on the basis of another Will dated 16.05.1994 had got his name
mutated in the revenue records vide mutation Entry No.201.
Further, Vikram Singh had transferred the land in suit in favour
of defendant no.2, Smt. Saroj Kumari and also defendant nos.4
and 5, Pankaj Kumar and Pawan Kumar respectively.
(b). In view of the interference in possession, Tota Ram instituted
a suit for a decree of declaration with consequential relief of
[2024] 7 S.C.R. 1205
Duni Chand v. Vikram Singh and Others
permanent prohibitory injunction that he was the owner in
possession of land in dispute and that the defendants had no
right or title to it. It was further prayed that the mutation Entry
No.201 dated 17.01.1996 and Entry No. 207 dated 07.06.1996
should also be declared as false, fictitious and illegal.
(c). In the plaint, Vikram Singh was impleaded as defendant no.1.,
Smt. Saroj Kumari as defendant no.2, Pankaj Kumar and Pawan
Kumar as defendant Nos.4 and 5. Defendant no.3, Smt. Dharni
Devi, being daughter of Beli Ram was also impleaded but
no relief was claimed against her as she had not put up any
claim with respect to the property of Beli Ram including the
land in suit. According to the plaint allegations, Beli Ram had
executed the Will in sound mind and good health, out of love
and affection on 12.12.1988 in favour of the plaintiff, who had
been taking care of Beli Ram throughout and had also been
cultivating the land in suit for the last more than 30 years. It
was further stated that the second Will dated 16.05.1994, set
up by defendant no.1 was forged and fictitious and surrounded
with suspicion, as such, it did not confer any right, title or
interest upon the defendant no.1 or the vendees through him
i.e. Defendant nos.2, 4 and 5.
(d). The defendants contested the suit and filed their written
statements and led evidence. Defendant Nos.4 and 5 filed a
separate written statement. They denied the plaint allegations
and stated that the Will dated 16.05.1994 was a genuine
document voluntarily executed by Beli Ram in a healthy and
disposing mind and the same was duly registered. The Will
dated 12.12.1988 was denied. According to them, the entries
in the revenue records were made after due verification. They
also claimed to be in possession of the land purchased by
them. Separate written statements were filed by defendant
nos.1 and 2 on same lines as of defendants 4 and 5. Dharni
Devi, Defendant no.3, filed a written statement admitting the
claim of the plaintiff and also the Will dated 12.12.1988.
4. The Trial Court framed 12 issues which read as follows:
"1. Whether the plaintiff is the owner in possession of
the suit land as alleged?
1206 [2024] 7 S.C.R.
Digital Supreme Court Reports
2. Whether late Shri Beli Ram executed a valid “Will” on
12.12.1988 in favour of the plaintiff as alleged? OPP
3. Whether the mutations No.201 and 207 are wrong
and illegal as alleged? OPP
4. Whether the plaintiff is entitled to be injunction prayed
for? OPP
5. Whether the plaintiff has a cause of action? OPP
6. Whether the plaintiff has the locus-standi to sue? OPP
7. Whether the suit is bad for non-joinder of the
necessary parties? OPD
8. Whether the suit is time barred? OPD
9. Whether the suit is not maintainable in the present
form? OPD
10. Whether late Shri Beli Ram executed a valid “Will”
on 16.05.1994 in favour of the defendant no.1 as
alleged. If so, its effect? OPD
11. Whether the defendants No.2, 4 and 5 Bona fide
purchasers for consideration as alleged. If so, its
effect? OPD
12. Whether the defendants are entitled to special costs
u/s 35-A of CPC as claimed. If so, their quantum?
13. Relief.”
5. Before the Trial Court, the plaintiff-Tota Ram examined three witnesses
and placed on record the Will dated 12.12.1988, which he duly proved
and was marked as Ext. DW-2/(A).
6. On the other hand, the defendants examined five witnesses and
also proved their Will dated 16.05.1994, which was marked as Ext.
DW-3/(A). The Trial Court recorded the following findings on the
issues as incorporated in paragraph 7 of the judgment, which are
reproduced hereunder:
Issue no.1 : No
Issue no.2 : No
[2024] 7 S.C.R. 1207
Duni Chand v. Vikram Singh and Others
Issue no.3 : No
Issue no.4 : No
Issue no.5 : No
Issue no.6 : No
Issue no.7 : No
Issue no.8 : No
Issue no.9 : No
Issue no.10 : No
Issue no.11 : No
Issue no.12 : Not pressed
Relief : The suit of the plaintiff is
dismissed as per operative
part of the judgment.
7. On the above findings, the Trial Court, vide judgment dated
30.09.2004, dismissed the suit.
8. Aggrieved by the same, plaintiff-Tota Ram preferred an appeal under
Section 96 of the Code of Civil Procedure, 1908 before the District
Judge, Hamirpur, which was registered as Civil Appeal No.110 of 2004.
The appellate Court framed point for determination as to whether
the judgment and decree under appeal is legally sustainable and
to what relief if any, the appellant would be entitled to. The District
Judge did not agree with the findings and the conclusions of the Trial
Court and, accordingly, decreed the suit against defendants 1, 2, 4
and 5. It held that the Will dated 12.12.1988 was a valid and genuine
document and plaintiff was entitled to a declaration on the basis of
the same, that he was in possession of the land in question and
accordingly injuncted the defendants 1, 2, 4 and 5 from interfering in
his possession. It further found that the Will dated 16.05.1994 was
surrounded with suspicious circumstances and as such could not be
relied upon. It was held to be an invalid document. It also set aside
the mutation Entry Nos.201 and 207.
9. Aggrieved by the judgment of the first appellate Court, the defendants
preferred Second Appeal under Section 100 of CPC, which was
registered as RSA No.392 of 2005 before the High Court of Himachal
Pradesh. The High Court confirmed the finding of the First Appellate
Court that the Will dated 12.12.1988 was a valid and genuine
1208 [2024] 7 S.C.R.
Digital Supreme Court Reports
document. It also found that the second Will dated 16.05.1994 in
favour of defendant no.1, Vikram Singh was not a genuine document
and was shrouded with suspicion. However, the High Court felt
that the purchasers from defendant no.1 were entitled to benefit of
Section 41 of the Transfer of Property Act, 18821 and, accordingly,
saved the transactions in their favour. They were entitled to retain the
land covered under their respective sale deeds and the remaining
land covered under the Will, would stand declared in the ownership
of the plaintiff, Tota Ram and that the defendant no.1, Vikram Singh
would not be entitled to claim any such benefit over the remaining
land. The High Court also set aside the mutation Entry No.201 but
saved it with respect to the transfers made in favour of defendants
2, 4 and 5. It further restored the mutation Entry No.207 in favour
of defendant Nos.2, 4 and 5.
10. Aggrieved by the same, the legal heirs of Tota Ram i.e. his three sons,
three daughters and widow have filed Civil Appeal No.8187 of 2023
to challenge the judgment of the High Court to the extent it saved
the transactions in favour of defendants 2, 4 & 5. The other Civil
Appeal No.8188 of 2023 has been filed by Vikram Singh (defendant
no.1) with respect to the declaration of his Will dated 16.05.1994 to
be an invalid document shrouded with suspicion.
11. We have heard learned counsel for the parties. On behalf of the
plaintiffs-appellants, the submission is that the High Court fell in
serious error in extending the benefit of Section 41 of the TP Act to
the defendants 2, 4 and 5. Neither there was any specific pleading,
nor any issue framed, nor any evidence led with respect to such
relief. None of the purchasers namely defendants 2, 4 and 5 entered
the witness box. The High Court has carved out a completely new
case which is unsustainable in law.
12. Section 41 of the TP Act reads as follows:
“41. Transfer by ostensible owner.
Where, with the consent, express or implied, of the
persons interested in immoveable property, a person is
the ostensible owner of such property and transfers the
same for consideration, the transfer shall not be voidable
1 In short, TP Act
[2024] 7 S.C.R. 1209
Duni Chand v. Vikram Singh and Others
on the ground that the transferor was not authorised 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.”
A plain reading of the above provision clearly requires the consent,
be it express or implied, of the persons interested in the immovable
property.
13. In the present case, the plaintiff, Tota Ram, was definitely interested in
the immovable property having a registered will of 1988 in his favour
and we do not find either in the pleadings or in the evidence, that
he had given, his consent, expressly or impliedly, to Vikram Singh,
defendant no.1, to transfer the property, in favour of defendant nos.
2, 4 and 5. Nowhere in the written statements filed by defendants 1,
2,4 and 5 have they pleaded, that defendant no. 1 had obtained the
consent, either express or implied, from the plaintiff before making
the transfers. Further the proviso to section 41 of the TP Act requires
that the transferees to take reasonable care in ascertaining that the
transferor had power to make the transfer and that they had acted in
good faith. This again would require specific pleading and evidence
by the transferees. As already recorded above, even at the cost of
repetition, defendants 2,4 and 5, the purchasers, from defendant
no. 1, neither pleaded such facts nor entered the witness box to
prove such facts as required under the proviso. The relief granted
by the High Court relying upon section 41 of the TP Act was thus
completely unwarranted, misplaced and against the pleading and
evidence on record.
14. Once the High Court had held that the Will dated 12.12.1988 was
genuine and bona fide and duly proved and, further that the Will dated
16.05.1994 was not a valid document being shrouded with suspicious
circumstances, there was no occasion for the High Court to have
shown any kind of sympathy with the purchasers i.e. defendants 2,
4 and 5. Once the Will itself was held to be invalid, no right accrued
in favour of defendant no.1, and if defendant no.1 did not receive
any right, title or interest under the Will dated 16.05.1994, there was
no question of defendants 2, 4 and 5 getting any better right, title or
interest than defendant no.1 their vendor. We find substance in the
aforesaid submission as from the pleadings, evidence and material
1210 [2024] 7 S.C.R.
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on record, we find that the submission on behalf of the plaintiffs-
appellants is fully substantiated. As such, the appeal filed by the
plaintiffs-appellants deserves to be allowed.
15. Insofar as the appeal filed by the defendant no.1 is concerned, we
are more than clear that the findings recorded by the first Appellate
Court and the High Court on the validity of the second Will dated
16.05.1994 being shrouded with suspicious circumstances, is well
reasoned and based on evidence on record. The defendant no.1
had completely failed to dispel and clear the clouds surrounding the
Will dated 16.05.1994. The first Appellate Court has dealt with in
great detail on the said aspect, which finding has been affirmed by
the High Court. The same being a pure finding of fact, we are not
inclined to interfere with the same. As such, the appeal filed by the
defendant no.1, Vikram Singh is liable to be dismissed.
16. In view of the above, the Appeal No.8187 of 2023 is allowed. The
judgment of the High Court to the extent it extends benefit to the
defendant nos.2, 4 and 5 is set aside and that of the first Appellate
Court decreeing the suit in totality is affirmed. The Appeal No.8188
of 2023 is, hereby, dismissed.
Result of the case: Appeal No. 8187 of 2023 allowed.
Appeal No. 8188 of 2023 dismissed.
†
Headnotes prepared by: Ankitesh Ojha, Hony. Associate Editor
(Verified by: Shibani Ghosh, Adv.)
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