JUDGMENT S.N. Srivastava, J.
1. The appellants who were arrayed as defendants in O.S. No. 276 of 1967 in the Court of Munsif City, Azamgarh, has preferred the instant second appeal assailing the judgment and decree dated 11.11.1975 passed by lower appellate court whereby it affirmed the judgment and decree dated 23.1.1973 passed by the trial court.
2. The dispute in the suit instituted by the plaintiff before the Munsif City, Azamgarh was for the relief of partition and for permanent injunction in relation to property situated in village Harbanspur District Azamgarh. The property in question was originally owned by Sanwaroo who died and was survived by Smt. Muneshwari his widow and three daughters namely, Manuri, Chandauti and Chanati. In the property in question which is a dwelling house, Sanwaroo had half share while half share devolved on Banshi, his brother. It was claimed in the plaint that the property of the deceased to the extent of 1/2 share was inherited by his heirs and out of them, Smt. Manuri and Pardeshi son of Chanati daughter of Sanwaroo and by means of sale deeds dated 3.12.1966 and 4.1.1967 they alienated their entire share in the property to the plaintiff. Banshi and Muneshwari had alienated the entire property in favour of defendants on 9.2.1966, i.e., prior to execution of sale deeds by Smt. Manuri and Pardeshi son of Chanati as a consequence of which, it is alleged, the plaintiffs got 3/8th share whereas 5/8 share fell to the lot of the defendants. It is in this backdrop that the suit was filed for partition and for permanent injunction. In the written statement, the defendants repudiated the plaint allegations averring that Sanwaroo had died issueless leaving behind Mst. Muneshwari alone as his legal heir. It was further averred that Mst. Muneshwari was not the legally wedded wife but was his concubine and had come to live with the deceased after the death of her former husband and the issues who were said to be heirs of deceased were not born from the loins of deceased Sanwaroo. It was further averred that the sale deeds were forged and had been concocted by Murtaza and Mohd. Ahmad on account of litigation in Suit No. 304 of 1966.
3. It would appear from a perusal of the record that no substantial question was pressed into service at the time of admission of the appeal nor has this Court put forth any substantial question for determination.
4. Sri Vinay Kumar Singh, the learned counsel for the appellants raised three-fold arguments ; firstly that the findings that Manuri, Chandauti and Chanati were daughters of Sanwaroo are perverse and sale deed relied upon by the plaintiff do not confer any title upon the plaintiffs ; secondly even assuming that three ladies aforestated were the daughters of deceased Sanwaroo, was the plaintiff entitled to benefit flowing from Section 41 of the Transfer of Property Act? and thirdly, the plaintiffs were entitled to get protection of Section 23 of the Hindu Succession Act which is intended for male member of the family in the event of a dwelling house.
5. The trial court framed as many as eight issues. While dealing with issue No. 1 which was to the effect as to "what, if any, is the share of the plaintiff, the trial court extensively scanned the evidence adduced by the parties in the case and in the ultimate analysis, converged to the conclusion relying on the statements of P.W. 1 Chandauti and P.W. 2, Anoop and also the copy of birth extract Ex. 13 that the daughter Manuri was born out of union of Mst. Muneshwari and deceased Sanwaroo and in consequence, it was held that three daughters aforestated were born out of union of Mst. Muneshwari and Sanwaroo and they alongwith their mother inherited the property and Mst. Muneshwari and Banshi was hot entitled to alienate the property beyond the extent of their respective shares in the property. The trial court in converging to the conclusion sifted in detail the various evidence both oral and documentary and regard being had to the finding, I am of the view that the trial court has appraised the evidence in correct perspective and on valid grounds. The lower appellate court in appeal upheld the finding and affirmed the judgment and decree rendered by the trial court. I do not find any infirmity in the finding and therefore, I am of the view that the argument of the learned counsel for the appellants on this count, falls to the ground.
6. The second argument of the learned counsel pivots on Section 41 of the Transfer of Property Act and it has been canvassed whether the appellant defendant would be entitled to protection under Section 41 of the Act. This section being germane to the argument raised by the learned counsel is quoted below :
"41. Transfer by ostensible owner.-Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable 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, had acted in good faith."
It would appear from a bare perusal of the provisions of the section that it requires four conditions to be satisfied ; (1) that the transferor is the ostensible owner, (2) he sold by the consent express or implied of the real owner, (3) the transfer is for consideration and (4) the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer. The essential requirement of the provisions of this section is that conditions postulated in the section must be satisfied to claim protection of the provisions of this section. From a perusal of the materials on record, it does not appear to have been established that there was any consent express or implied by the daughters. In connection with this proposition, I have also scanned the finding that there is specific finding recorded by the trial court that there was no consent express or implied. It has categorically been held by the courts below that all the three daughters of Sanwaroo, Muneshwari, his widow and Banshi, his brother were the owners of the joint family. It is also worthy of notice that sale deed executed for entire property by Mst. Muneshwari and Banshi in favour of defendants had in fact been executed prior to the date of sale deeds executed by Manuri and Pardeshi in favour of the plaintiff. As a matter of fact, the plea taken by the appellant defendant in the written statement and reinforced before this Court that the three ladies namely, Manuri, Chandauti and Chanati were not the daughters of deceased Sariwaroo was in conflict with the plea of protection of Section 41 of the Transfer of Property Act. Had the appellant taken this plea in good faith with implied or express consent of Manuri, Chandauti and Pardeshi, they would not have taken the plea that Manuri, Chandauti and Chanati were not the daughters of Sanwaroo. This in itself evidences the fact that there was no consent implied or express. Section 41 of the Transfer of Property Act presupposes that rights of those persons, who are interested in the immovable property, are admitted by ostensible owner who pleads implied consent at the time of transfer. It is significant to note as settled by catena of decisions that mere long possession, occupation or sole enjoyment of the property by a person does not entitle him to claim consent of other co-sharers and ostensible owner. Mere inaction or silence of co-sharers cannot be interpreted to be a consent unless it is proved that the person giving consent is aware of his rights, interest or title in the property. In the light of the conflicting plea, the claim of protection of Section 41 of the Transfer of Property Act is not available to the appellant that there was consent express or implied and by this reckoning, Section 41 is wholly inapplicable. Therefore, this argument of the learned counsel for the appellant cannot be countenanced.
7. The third argument pertains to benefit of Section 23 of the Hindu Succession Act. Section 23 being relevant in connection with the argument is quoted below :
"23. Special provision respecting dwelling houses.- Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein ; but the female heir shall be entitled to a right of residence therein :
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow."
8. In this connection, I feel called to refer to the finding of the trial court in so far as it deals with issue No. 3. It has been clearly found by the trial court that the subject matter in suit did not belong to either of the contesting parties as their family property and they both stand as strangers and the entire subject matter stands disproved. A bare perusal of Section 23 would be eloquent of the fact that it pertains to the dispute as to partition amongst the family members and it mandates that any female heir would have no right to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein. The provision of this section is wholly inapplicable in the instant case inasmuch neither of the parties in the suit are members of the Joint Hindu Family and both are transferees. This is also not a case where the male member of the family is claiming rights of residence or that the suit for partition was filed at the instance of any of the family members of the Joint Hindu Family. As defendants are transferees from Mst. Muneshwari and Banshi on 2.9.1966 and plaintiffs are transferees from Manuri and Pardeshi vide sale deed executed by them on 3.12.1966 and 4.1.1967, the provisions of the section are wholly inapplicable and appellant's cannot claim protection under Section 23 of the Act inasmuch as there was no male member of the Joint Hindu Family in the dwelling house as Banshi alongwith Muneshwari had already executed sale deed in favour of defendants. In the circumstances, this argument of the learned counsel also does not lend cogency to his failing case.
9. As a result of foregoing discussion, I am of the view that no substantial question of law arises in the present and hence the second appeal being devoid of merits, is liable to be dismissed.
10. It is accordingly dismissed.