INTELLIGENCE BUREAU EMPLOYEES COOPERATIVE HOUSING SOCIETY vs SHABBIR HUSSAIN S

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INTELLIGENCE BUREAU EMPLOYEES COOPERATIVE HOUSING SOCIETY VS SHABBIR HUSSAIN S. 41---Transfer by ostensible owner---Protection for transferee under section 41 of the Transfer of Property Act, 1882---Scope and pre-requisites---Section 41 of the Transfer of Property Act, 1882 underpins the principle of equity that whenever one of the two innocent persons has to suffer by the act of third person, he who has enabled that person to occasion the loss, must sustain it, or where one of the two innocent persons suffer from the fraud of third party, the loss should fall on him who has created, or could have prevented the opportunity for fraud---However in order to invoke the protection of the provisions of section 41, a transferee is essentially required to demonstrate that; first, the transferor is the ostensible owner; second, he was so by consent, express or implied, of the real owner; third, the transfer is for consideration; and fourth, the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. Head NotesCase Description Citation Name: 2022 SCMR 877 SUPREME-COURTBookmark this Case INTELLIGENCE BUREAU EMPLOYEES COOPERATIVE HOUSING SOCIETY VS SHABBIR HUSSAIN S. 52---Land revenue record---Presumption---In terms of section 52 of the West Pakistan Land Revenue Act 1967, presumption of truth is attached to the land revenue record. Head NotesCase Description Citation Name: 2022 SCMR 877 SUPREME-COURTBookmark this Case INTELLIGENCE BUREAU EMPLOYEES COOPERATIVE HOUSING SOCIETY VS SHABBIR HUSSAIN Ss. 8, 42 & 54---Transfer of Property Act (IV of 1882), S. 41---Suit for possession, declaration, and permanent injunction---Dispute over inheritance mutations---Suit filed belatedly beyond period of limitation---Inaction in claiming rights equating to acquiescence and waiver of rights---In the present case, the plaintiff was at least 17 years of age when the impugned inheritance mutations were recorded in favour of his father, and his grandmother---Address of the plaintiff in the record throughout was the same as that of his father, and his grandmother also lived in the same village---Suit lands were situated where the plaintiff had lived throughout---Plaintiff attained majority at the most, a year after the impugned inheritance mutations were recorded and had become legally capable and competent to seek enforcement of his legal rights---Even at the time of impugned mutations, he was, by all accounts, of a sensible age---If the said plaintiff was truly and genuinely aggrieved by the impugned mutations dated 14.4.1970, he ought to have challenged the same within three years of his attaining majority---However he filed the suit as late as on 27.6.1990---Although in his plaint, the plaintiff claimed that he came to know about the inheritance mutations only a month before filing of the suit---However, neither had he disclosed as to on what date, how, and through whom he acquired the knowledge as claimed---Plaintiff further claimed that having known about the mutations, he requested his father and grandmother to transfer the suit land in his favour, but they refused---However in such regard also neither had he given any details, nor produced any evidence or material---Subject lands, after being sold by the plaintiff's father and grandmother to the defendant-society, had, way back in the year 1988, been developed into a housing society, and the plots so created had been allotted to the members of the society, who had built their houses/buildings thereon---Roads had been built and basic amenities had been provided in the housing society so developed---Living in the same village where the lands were situated, it was inconceivable that the plaintiff would not have noticed the fact that not only the physical possession of the lands were delivered to his father and grandmother but the usage/status of the land was also changed from agricultural to residential/commercial, and developed into a housing society---Plaintiff's inaction, indifference and indolence in the circumstances could not be interpreted as anything but his acquiesce in his father's and grandmother's title in the suit lands and manifestation of waiver of his rights---Plaintiff acquiesced in the title of his father and grandmother, and having waived his right to the lands, led the defendant-housing society to believe that the said vendors were in fact the owners of the lands---Defendant society thus having purchased the lands for valuable consideration, without knowledge of plaintiff's purported entitlement were/are entitled to protection under section 41 of the Transfer of Property Act, 1882---Appeals were allowed, impugned judgment was set-aside with the consequence that suit filed by the plaintiff was dismissed. Head NotesCase Description

INTELLIGENCE BUREAU EMPLOYEES COOPERATIVE HOUSING SOCIETY vs SHABBIR HUSSAIN S — 2022 SCMR 877 SUPREME-COURT

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