HOORBAI Vs. AISHABAI

JUDGEMENT

(1.) The first point to be decided in this case is as regards the objection taken by defendant No. 2 to the maintainability of the suit in its present form by the plaintiff, having reference to the words of Section 66 of the new Civil Procedure Code. 1 cannot hold that that section, assuming that its language is intended to, and does, cover a case of this kind, can now preclude the plaintiff from carrying to its conclusion a suit which was instituted as far back as 1905. If it be further argued that the suit was equally unmaintainable under the terms of Section 317 of the old Civil P. C., which was then in force, I need only rest upon the actual words of that section. Defendant No. 2 is not a certified purchaser of the property in suit, nor does he stand in the shoes of the certified purchaser within the meaning of the decision in Hari V/s. Ramchandra 1906 ILR 31 Bom 61. I must, therefore, decide that issue in the plaintiff's favour and against defendant No. 2.

(2.) The facts, which are material to be stated in the present case, are that the plaintiff Hoorbhai bought the property in suit benami in the name of the deceased defendant No. 1 Abu Bakar Moledina, and that shortly afterwards the benamidar Abu Bakar mortgaged it along with property of his own to defendant No. 2 in the year 1902. In 1903 defendant No. 2 reconveyed both the properties to defendant No. 1, who then executed another mortgage of the property in suit to defendant No. 2 for principal and interest of the former mortgage and an additional sum of Rs. 900 odd. The plaintiff now seeks to have it declared that this mortgage is not binding upon her property and further that defendant No. 2 be ordered to restore to her the title-deeds, if he possesses them, of the property in dispute.

(3.) It is evident, upon this short statement of facts which are undisputed, that the only question to be answered is whether defendant No. 2 was a purchaser for value bona fide and without notice. That question, I think, admits of a very short answer. No doubt there has been a considerable confusion in examining both the case law and the principles which underlie this peculiar branch of the law of equity along with the corresponding principles of the broader doctrine of estoppel; but I accede to the argument of Mr. Bahadurji for the plaintiff that Section 41 of the Transfer of Property Act is the statutory qualification and restriction of the general law of estoppel contained in Section 115 of the Evidence Act which is a rule of proof. If the case had to be decided under Section 115 of the Indian Evidence Act upon general and unmoLlifiel principles of estoppel, I have felt from the first that the plaintiff would have a great difficulty in evading that bar. But the Transfer of Property Act has plainly restricted the more general principles of Section 115 when the transactions relate to immoveable property. Section 41 imposes, as the English Courts have consistently inclined to impose, upon the purchasers of immovable property the duty of exercising reasonable care and diligence. A very superficial analysis would reveal obvious distinctions between the application of the ordinary principles of estoppel on the one hand and the application of the principles to which effect has been given under the 41 section of the Transfer of Property Act. And it is because this case must, in my opinion, clearly be governed by that section, which really is not strictly speaking within the scope of estoppel at all, that I think the question can be shortly and satisfactorily answered; for, bearing in mind the evidence which has been laid before the Court, I do not think that it can seriously be contended for defendant No. 2 that he attempted to make any reasonable enquiry at all into the true nature of his vendor's title. The story which he tells is that upon being offered this mortgage he virtually left the matter entirely in the hands of his solicitors, to whom he showed, for ought this Court may know, something which may have been no more than a certified copy of the sale certificate or a certified copy of the decree, pursuant to which the sale was effected. And it is equally clear from the evidence of Mr. Mulla that the Solicitors were from the first dissatisfied with the title and advised defendant No? 2 that if he advanced the money upon it he was doing so at his own risk. An attempt has been made to explain that by saying that the only doubt entertained was as to the title prior to the decree and the Court-sale, but the defendant himself admits that he took no further steps to clear up this matter, while Mr. Mulla distinctly says that the defendant did not wish him to pursue his investigations further.