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-- S. 41-Transfer by ostensible owner-Transferee not discreet enough to make proper inquiries and ascertain whether transferor had power to transfer-Protection afforded by S. 41 not available.

Manzur Hussain Shah and another v. Ghulam Hussain and 22 others P L D 1972 Lah. 855 ref.

Muhammad Ayub Khan for Appellants.

Raja Said Akbar for Respondents.

Dates of hearing : 6th and 7th June 1974.

The facts relevant for disposal of this appeal are these. Sher Zaman and Mst. Begum Ji (since died) brought a suit for possession of agricultural land (details of which appear in the plaint) situate in the estate of Mauza Kheriot, Tehsil and District Jhelum, against Dhuman Khan (since died), son of Nawab Khan, and Ali Shah and Khan, sons of Dost Muhammad, the appellants, alongwith others. The foundation of the claim is that the property was held by Mst. Sultan Begum as life estate and on her death when the succession opened out, the property was to revert to the heirs of her husband and not Dhuman Khan, the brother of Mst. Sultan Begum deceased. The appellant's vendees from Dhuman Khan, pleaded the protection of section 41 of the Transfer of Property Act, on the ground that they were bona fide purchasers for consideration without notice. The suit was dismissed in the first instance on the 18th of September 1959. However, subsequently the judgment and decree was reviewed by the trial Court by order dated the 7th of October 1959, whereunder the plaintiff's suit was dismissed only to the extent of 2 kanals 17 marlas in Khata No. 7 sold by Dhuman Khan to the appellants as 1/12th share which Dhuman Khan had in the khata. The suit was decreed in respect of the rest of the property as against other transferees Sher Zaman alone appealed, because in the meantime Mst. Begum Ji died leaving her surviving Sher Zaman as the only legal representative. The learned District Judge has allowed the appeal on the ground that although the name of Dhuman Khan appeared in the Jamabandi in the owner's column as an ostensible owner, yet because the vendees had not made proper enquiries, they cannot seek protection under section 41 of the Transfer of Property Act.

2. In this second appeal, the evidence on the record, both oral and documentary, leads to the admitted fact, that Dhuman Khan was not an heir of Mst. Sultan Begum or the heir of her husband and as such he was not entitled to any share and the mutation sanctioned in his favour was against law. If, therefore, he has been shown in the Jamabandi as a co-sharer to the extent of 1/12th and as such his name appears in the revenue record, was it sufficient for the vendees, who are also residents of the same estate, although not related to the vendor, not to make any further enquiries as to how the property had devolved on Dhuman Khan. It may further be added that there is no denying the fact that Dhuman Khan had other property in the village in his own khata inherited from his forefathers. This fact could not have been ignored by the vendees,' who have not been discreet enough to make proper enquiries. The essential inagredient of having taken reasonable care to ascertain that the transferor had . power to transfer has not been established. In the circumstances of the case the protection afforded by section 41 of the Transfer of Property Act was not available to the purchasers and I haves no hesitation in affirming the finding of the learned District Judge (See Manzur Hussain Shah and another v. Ghulam Hussain and 22 others P L D 1972 Lah. 855. The appeal fails and is dismissed. There will be no order as to costs.

K. B. A. Appeal dismissed.

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