KHUSHAL CHAND BHAGCHAND Vs. TRIMBAK RAMCHANDRA

JUDGEMENT

(1.) 1. This second appeal arises out of a suit for recovering possession of Survey No.802/1 of Sangamner together with mesne profits and costs. The land belonged to one Chintaman Vinayak and he made a gift of it to the plaintiff's father Ramchandra by a registered deed dated August 17, 1927. The deed, while giving the land to Ramchandra, provided that the donor Chintaman was to remain in possession and to enjoy the income of the land during his lifetime and that the donee Ramchandra should take possession of it after his death. Ramchandra is dead. Plaintiff No.1 is his son, plaintiff No.2 is his father and plaintiff No, 3 is his brother, and on Chintaman'ts death on January 28, 1937, they have become entitled to the land in suit. But soon after passing the deed of gift in favour of Ramchandra, (Chintaman appears to have changed his mind and executed another registered deed on May 18, 1928, revoking the gift. Thereafter he sold it to defendant No.1, Laxmibai, on September 24, 1932. Defendant No.1 mortgaged it to defendant No.3 on January i, 1937, and gave the land into his possession. So long as Chintaman was alive, the plaintiffs had no right to seek its possession, and so after his death they filed this suit in March 1939 to recover possession of the land from the three defendants, defendant No.2 being a tenant cultivating the land. The defence was that the document of 1927 was not a deed of gift but a will and was, therefore, revocable, that in any event Ramchandra and the plaintiffs i having allowed Chintaman to be the ostensible owner of the land and defendant No, 1 having purchased it in good faith after making reasonable inquiry, she had become the owner of the land and that defendant No.3 also being a bona fide mortgagee who had taken reasonable care to enquire into the title of the mortgagor, his mortgage could not be impeached by the plaintiffs. It appears that the contention that Chintaman could revoke the gift was not pressed. In her written statement defendant No.1 admitted that she knew of the deed of gift passed by Chintaman in favour of Ramchandra but was told by him that he had revoked it. The trial Court, therefore, held that she should have known that the gift could not be revoked, and that although she had paid valuable consideration, she must be deemed to have had notice of the plaintiffs' claim and therefore was not entitled to the benefit of Section 41 of the Transfer of Property Act, 1882. But as regards the mortgage taken by defendant No.8 the trial Court held that he had made sufficient enquiry with reasonable care, and as the plaintiffs had allowed defendant No.1 to be the ostensible owner of the land, defendant No.3's mortgage for valuable consideration was binding on the land and the plaintiffs could not recover possession without discharging the burden on it. It was, therefore, declared that the plaintiffs were the owners of the land in suit subject to the encumbrance created by defendant No.1 in favour of defendant No.3. The plaintiffs appealed against that decree and the lower appellate Court, while agreeing with all the other findings of the trial Court, held that defendant No.3 had not exercised reasonable care in making an enquiry into the power of defendant No.1 to mortgage the land, and therefore, was not entitled to the benefit of Section 41 of the Transfer of Property Act. The decree of the trial Court was, therefore, modified and the plaintiffs were declared to be the owners of the land in suit free from the mortgage of defendant No.3. Defendant No.3 has now appealed to this Court and all the contentions in the written statement are urged on his behalf.

(2.) IT is obvious that if the deed of gift passed by Chintaman in favour of Ramchandra in 1927 he held to be a will, he could revoke it, and as he did revoke it, the plaintiffs would have no title to the land and their suit must be entirely thrown out. Defendant No.1 did not appeal against the decree of the trial Court and has thereby tacitly given up her claim under the sale-deed passed to her by Chintaman. IT is still open to the appellant to rely upon the revocation of gift, and if it is found to be valid, then his mortgage would necessarily be binding on the land in suit.

(3.) IT follows that the revocation of the gift by Chintaman in 1928 was ultra vires and ineffectual and his sale of the land to defendant No.1 in 1932 could not enure for her benefit after his death. She mortgaged it to defendant No.3 on January 4, 1937, when Chintaman was still alive, but after Chiutaman's death his life estate, which alone she could legally mortgage, came to an end and the land mortgaged ceased to be a security for the amount advanced by defendant No.3 to defendant No.1, But it is contended on his behalf that he being a bona fide mortgagee, he is entitled to the benefit of Section 41 of the Transfer of Property Act.