Crystal Developers v.

Asha Lata Ghosh

(2005)9 Supreme court Cases 375
Civil Appeal (Special leave Petition) [2 Judge Bench]

Brief Facts:-

1. Late Balai Chand Ghosh [16-08-1980] had three wives and

the parties to the suit claimed 1/11th undivided share
each in the suit premises. The suit premises were wholly
tenanted on 21-9-1981 when partition suit No. 89 of 1981
was filed. In 1993, the petition was amended and
defendant 14 was brought on record. The plaintiffs prayed
for a preliminary decree for partition of the suit
premises after declaring the plaintiffs’ 1/11th share in
the suit premises. The trial court of 9th Sub Judge,
Alipore, Calcutta held that Defendant 14 was not a bona
fide purchaser and that Ext. A/1 and Ext. A/2 were
executed by Defendant 2 to defeat the rights of the
plaintiffs. The High Court of calcutta came to the same
conclusion and dismissed the appeals. The plaintiffs
alleged that the will was surrounded by suspicious
circumstances and that the initial onus was on Defendant
2 or Defendant 14 to remove or explain those
circumstances.
2. In the written statements, Defendant 14 Crystal
Developers alleged that the present matter was filed to
circumvent Ext. A/1 and Ext. A/2, executed during the
lifetime of Balai Chand, that pursuant to the consent
decree dated 3-8-1981, Defendant 2 had executed Ext. A/8
in favour of Defendant 14 on payment of full
consideration; acquisition and other encumbrances
(including tenants); pursuant to Ext. A/8, Defendant 14
got the building plan sanctioned by the calcutta
municipal corporation; that the old building will get
demolished and new construction will start. The Ext. A/8
was executed only after Defendant 2 got the probate on 3-
7-1981,that the aforesaid developments were known to the
heirs of the Balai Chand.
3. Descendant 14 Claims that they were the bona fide
purchasers for the value without notice of any defect in
obtaining of the probate by Defendant 2.
4. Crystal Developers Original Defendants 14.
5. Balai Chand had three Three Wives
- First Wife name [ Jamuna ], two sons from the first wife,
Naresha and Paresh Defendant 4.
- Second Wife [ Nirmala ] Defendant 3, 6 Children,4 sons
and 2 Daughters. Sons, Jogesh, Ramesh, Suresh Defendant 5
and Babesh, Daughters, Parul and Manju.
- Third Wife [ Mamta ] Defendant 1, Arindam Defendant 2

Timeline of the case:-

1. 21-9-1981, Partition suit was filed in the court of
IXth Sub-Judge, Alipore. This was filed by the sons
of Naresh, Jogesh, Ramesh, Babesh, Parul and Manju
as Legal heirs of Balai Chand.
2. On 9-5-1983, a written statement was filed by
Defendant 1 and 2. Mamta and her son.
3. Arindam Defendant 2 was relying on the probate
dated 31-7-1981, Consent decree dated 3-8-1981 as
also the conveyance dated 4-8-1981 in favour of
crystal Developers Defendant 14.
4. In the written statement, Defendant 2 also relied on
the order dated 21-8-1982 passed by the Vth
Additional District Judge, alipore, to show that the
Defendant number 3 had the knowledge of the
registered will of balai chand and of the
appointment of Defendant 2 as the executor under the
said will.
5. 1993, the petition was amended and Defendant 14 was
brought on record.
6. On 22-06-1993 and 22-8-1993, after inspection of
assessment records of the municipality, the
plaintiffs came to know of the impugned transfer.
7. According to the amended plaint, Defendant 1 and
Defendant 2 had sold in collusion with each other
 the suit premises to Defendant 14 to prevent the
plaintiff from claiming the same.
8. The plaintiffs contend that the same was sold to
Defendants 14 without giving notice to the other
heirs of balai chand and that the plaintiff was not
aware of the agreement for sale.
9. The heirs have appealed to the Supreme Court that
the sale was null and void was not binding on other
heirs of the balai chand.
Issues Raised:-
1. Whether Defendant 15 to 20 were Bona Fide Purchasers of
for value without notice?
2. Whether the revocation of the grant of probate will make
all intermediate acts void ab initio.
3. Whether Defendant 14 is the bona fide purchaser for
value?
Judgement of the Court:- [ By S.H. Kapadia ]
1. With respect to the allegation of fraud or cullison
against Defendant 14, the court held that the both the
courts erred in holding that Defendant 14 was not at
arm’s length to Defendant 2. The court ruled that the
fraud and collusion has to be alleged and proved.
2. With respect to the Provisions of Section 41 of the
Transfer of property act, the court cited 2 cases.
3. In Gurbaksh Singh v. Nikka Singh, it was held that Section
41 is an exception to the general rule that a person
cannot confer a better title than what he has. Being an
exception the onus is on the transferee to show that the
transferor was the ostensible owner of the property and
that the transferee had after taking reasonable care to
ascertain that the transferor had power to transfer,
acted in good faith.
4. In the case of Shemshul M. Shah v. Sayed Abdul Rashid, it
has been held that in every case, where a tranfree for
valuable consideration seeks protection under Section 41
of the Transfer of Property Act, the Transferee must show
that the real owner had permitted the apparent owner
either by express words, consent or conduct to transfer
 the property in favour of the transferee. In other words,
it must be shown that with the consent of the true owner,
the ostensible owner was able to represent himself as the
owner of the property to the purchaser for the value
without notice.
5. The test laid down in the matter of applicability of
section 41 of the transfer of property act is squarely
applicable to the facts of the present case. The
intestate heirs of Balai Chand allowed Arindam to
represent to the developers that he was the owner of the
suit premises. It is established by the conduct of the
inaction on the part of the intestate heir of alai Chand.
Hence, Defendant 14, was a bona fide purchaser for value.
6. Defendant 14 to 20 cannot be prevented from relying on
the probate and the will. The plaintiff cannot impugn
Ext. A/8 as fictitious or fraudulent.