BANSIDHAR SETH Vs. GOPI LAL SETH

JUDGEMENT

(1.) This is an appeal by the plaintiff from the decision of the Subordinate Judge of Hazaribagh confirming a decision of the Munsif. The appeal arises out of a suit for recovery of 10 annas of village Koladih. In 1920, one Khirodhar purchased this 10 annas in the name of his samdhi Biseshwar. Thereafter the plaintiff obtained a money decree against Khirodhar. In the meanwhile, Biseshwar had died and Jageshar, on 20 March 1928, executed in favour of the plaintiff-decree-holder a mortgage of the 10 annas share. It is conceded that this was in discharge of the decree which the plaintiff had obtained against Khirodhar. In 1930 the plaintiff obtained a preliminary decree on the mortgage in a suit to which Khirodhar was not a party and in 1934 he purchased the mortgaged property in execution of the final decree obtained in the mortgage suit. Delivery of possession was resisted by the defendants. They had purchased the same property in execution of a decree for money against Khirodhar in 1931.

(2.) In the proceedings in execution of the decree obtained by the defendants Jugeshar raised an objection under Order 21, Rule 58, which was allowed. Thereupon the defendants instituted a suit under Rule 63, and this suit succeeded. In the present suit the plaintiff alleged in his plaint that the 10 annas share in village Koladih was purchased by Biseshwar and that Khirodhar had no concern with it. He further alleged that Jageshar had mortgaged the property in order to discharge the decree obtained against Khirodhar. The point raised by the present plaintiff in the Courts below was that as Khirodhar had allowed the property to stand in the name of Biseshwar and the plaintiff had bona fide belief that the property belonged to Biseshwar, Section 41, T.P. Act, barred the defendants claim.

(3.) To this the defendants answer was that the plaintiff was entitled to the protection of Section 41 only if he had exercised reasonable care and caution. Both Courts found that the plaintiff had not exercised such care and caution. The question whether a transferee has exercised due caution within the meaning of Section 41 is a question of fact: see Rajani Kanta Deb V/s. Bashiram Meatari AIR (1929) Cal 686 and Kanhu Bal Marwari V/s. Palu Sahu AIR (1920) Pat 1 . In second appeal the learned advocate for the appellant has contended that the defendants are estopped under Section 115, Evidence Act, from challenging the plaintiff's title by reason of the conduct of Khirodhar. No case of estoppel was made put. in the plaint or disclosed by the evidence. The plaint contained no allegation that Khirodhar had by his representations, declarations, acts or omissions led the plaintiff to believe that the state of affairs was different from the real state of affairs. The allegation simply was that Jugeshwar whom the plaintiff believes to be the real owner had mortgaged it in discharge of Khirodhar's liability. There is not one word in the plaint to suggest that the plaintiff was led to believe that Jugeshwar was doing this because he was a benamidar for Khirodhar.