MUTSADDI LAL Vs. CHAUDHRI DALIP SINGH

JUDGEMENT

(1.) The learned Advocate for the appellant has addressed us at considerable length and laid before us all the facts of this case and also cited a number of authorities bearing upon the questions to be decided in the appeal. The facts are sufficiently stated in the clear and lucid judgment of the lower appellate Court, and it is unnecessary here to recapitulate them. We think that the decision arrived at by that Court, is not open to objection.

(2.) The facts are substantially the same as those to be found in the case of Mahmed Mozuffer Hossain V/s. Kishori Mohun Roy 22 C. 909 : 22 I. A. 129. No real distinctions are we able to discover between the case before us and that case. It is, so far as we are aware, the latest pronouncement by their Lordships of the Privy Council upon the question which is now before us. In that case the plaintiffs and the defendants, holding separate decrees against the same estate, had by leave of the Court purchased the estate in execution. Both parties claimed proprietary right to possession, the defendants holding the latter. The first of the decrees in date was the plaintiffs , which was a simple money decree against the representatives of the deceased owner of the property, which before then had been mortgaged to the defendants by his widow. The plaintiffs obtained only the equity of redemption, their purchase having been of the right, title and interest of the judgment-debtors. The mortgagees, having got a decree upon their mortgage against the widow, purchased at a sale in execution and defended the possession which they had obtained; It was held that the defendants, in whose favour the decree had been made upon a bona fide mortgage without notice that the mortgagor had only been holding benami for her husband, had the better title ; that the High Court had rightly disallowed an objection taken by the plaintiffs that this defence, as distinguished from the defendant's answer that the widow was the real owner, had not been set up or decided in the Court of first instance ; and it was further held that the owner, having in his life-time authorised his wife to hold herself out as proprietor in her own right, could not have succeeded in a suit to disentitle the mortgagees without proving that they either had taken the mortgage with direct or constructive notice of the real title or that they had been put upon enquiry which would have led to discovery of the real title, that the same principle applied to the plaintiffs, who had purchased his right, title and interest, and that they were bound equally with him. In the case before us, it is said that reliance was not placed by the plaintiffs upon the provisions of Section 41 of the Transfer of Property Act; and that that being so, the Court ought not to decide the case in view of that section without giving the defendant an opportunity of having it determined by the Court below whether the transfer to the plaintiffs was made after taking reasonable care to ascertain that the transferor had power to make the transfer and that the transferee's were acting in good faith. From the findings of the Court below, it is clear that the plaintiffs did take reasonable care to ascertain that the transferors had power to make the transfer now impeached and also that they acted in good faith. Not merely did the ostensible owners, the widows of the original owner, execute the transfer but their two sons took an active part in the negotiations for the transfer and in its completion. We think, therefore, in view of this fact, that the Courts below were justified in the conclusions at which they arrived.

(3.) We have also the authority of a decision of a Bench of this Court in the unreported case of Tulshi Ram V/s. Mutsaddi Lal, Second Appeal No. 325 of 1902, decided on the 1 of August 1901. That case arose out of transactions similar to the one before us, and supports strongly the view which we have formed in this case. We, therefore, dismiss the appeal with costs.