L MANGILAL Vs. BARKATULLA

JUDGEMENT

(1.) This is a second appeal arising out of a suit brought by the plaintiff against defendant 1, Madan Mohan who is the mortgagor, and Barkat Ullah, Mohammad Taj and Mohammad Yusuf who are transferees from his mother Chhutia, by virtue of a sale deed executed in their favour by her.

(2.) The property originally belonged to one Rai Bahadur Radha Kishen. He died leaving be-laind one sister, Smt. Chhutia, and a half sister Smt. Taro. Smt Chhutia had a son Madan Mohan and Smt. Ganga, a predeceased sister of Radha Kishen, had a son Govind Charan. On 19-6-35 a deed of surrender was executed by Smt. Chhutia in favour of her son Madan Mohan. On the same day a mortgage was executed by Madan Mohan in favour of Dr. Mangi Lal, the plaintiff-appellant in this case. This mortgage deed was executed for a sum of Rs. 1600/-. On the date when the suit was filed, the amount due had become Rs. 2768/- and the suit was accordingly brought on the basis of this mortgage for ther realisation of this amount by the sale of the house mortgaged. Ignoring this deed of surrender, Smt. Chhutia executed a sale deed in favour of Barkat Ullah, Mohammad Taj, Mohammad Yusuf defendants, and one Mohammad Bashir deceased, whose heirs are the aforesaid three defendants. The suit was not contested by Madan Mohan, the executant, but it was contested by two of the other three defendants. It may be noted that these three defendants have now gone to Pakistan and their property has become evacuee property. Accordingly the Custodian, Evacuee Pro-perty is contesting this appeal on behalf of the three defendants.

(3.) The defence of the defendants was that the deed of surrender by Smt. Chhutia in favour of Madan Mohan was invalid because there was another reyersioner Govind Charan who was equally entitled to inherit the property. Further, though on the date on which this deed was executed Smt. Taro was not entitled to inherit, but now according to the latest decisions of the Privy Council Smt. Taro was also entitled to" inherit. In these circumstances the surrender was not in favour of the next reversioner. The trial Court held that the plaintiff had taken the mortgage after making full enquiry that there was no other heir except Madan Mohan and it was not proved or established in the case that he was aware of Govind Charan's existence. The trial court be-lieved this evidence and the lower appellate Court has not upset that finding. On this finding the trial court came to the conclusion that Section 41, Transfer of Property Act applied to the case of the plaintiff as he had taken this transfer from the ostensible owner. The lower appellate court was of the opinion that it could not be said that, he had taken the property from the ostensible owner, that the plaintiff himself knew that Madan Mohan, who was the son of Smt. Chhutia, was not the real owner because a deed of relinquishment had been executed that very day and it cannot be said that he was not aware of this fact.