RAM CHARAN DAS Vs. JOY RAM MAJHI

JUDGEMENT

(1.) The subject-matter of this litigation is village Barmesha, which admittedly formed at one time part of the Estate of Bharat Majhi. On the 20th August 1875, Bharat executed a conveyance of the tenure in favour of his nephew Ramdhan, a son of his brother, Jogeshur. This conveyance, as has been found by the Courts below, was not intended to be a real transaction, and, during his life-time, Bharat retained possession of the conveyance; as also of the property. Ramdhan never set up any claim to the property during the life-time of Bharat, and in 1887, actually joined his uncle in a mortgage transaction, in which Bharat gave the property as security on the assertion that he was the owner thereof. Bharat died in October 1888 and left behind him a widow and an infant son Joyram, the plaintiff in this litigation. Upon the death of Bharat, his widow appointed Ramdhan to manage the disputed property, and it has been found concurrently by the Courts below that Ramdhan collected the rent as such agent from the under-tenants up to 1894, when he repudiated his position as agent and asserted a hostile title In the interval, however, in 1890, Ramdhan had secretly mortgaged the property to stranger on the allegation that he was entitled to it, and in 1891, he instituted suits for rent against tenants and obtained decrees in his own name. These fraudulent acts were secretly done without the knowledge of the widow of Bharat, and it was not till 1894 that there was an open assertion of a hostile title by Ramdhan. The receipts granted by the superior landlords to Ramdhan on account of payment of putni rent show that, as late as 1892, Ramdhan was described as Karmachari, Gomostha or Sarbarakar, each of which terms plainly indicates that Ramdhan at that stage proposed to represent the real owner, the infant son of Bharat. In 1900, the mortgagees, who had accepted the security from Ramdhan in 1890, took active proceedings to realise their dues. The result was that on the 17th January 1901, Ramdhan and his brother Baburam executed a conveyance of the disputed property in favour of the first defendant. On the 26th August 1901, the first defendant got his name recorded in the books of the landlord. The plaintiff attained majority shortly afterwards, and, on the 18th April 1907, commenced the present suit for declaration of title and for recovery of possession and mesne profits. The first defendant alone substantially defended the suit along with his brothers who were subsequently brought on the record they denied the title of the plaintiff and contended that even if the transfer by Bharat in favour of Ramdhan on the 20th August 1875 was established to have been fictitious, the plaintiff was barred by the doctrine of estoppel and could not be permitted to assert his title against a bona fide purchaser for value without notice. The Courts below have overruled all the objections urged by the defendants and have decreed the suit. In the present appeal, it has been argued on behalf of the first defendant and his brothers, on the authority of the decision of the Judicial Committee in Ramcoomar Koondoo v. McQueen 18 W.R. 166 : 11 B.L.R. 46 : I.A. Sup. Vol. 40 that the plaintiff cannot be permitted to assert his title, though it has been found concurrently by the Courts below that the vendors defendants had no title to convey to the appellants. The question of estoppel thus-raised has been presented from distinct standpoints; but before we proceed to examine the question in its different bearings, it is necessary to point, out that the District Judge has not pronounced any opinion upon an important matter considered by the Court of first instance, viz., whether the first defendant, at the time of the purchase, obtained from his vendors the title-deeds of the property, viz., the original putni lease and the conveyance by Bharat in favour of Ramdhan. The Subordinate Judge found that the story of the defendants that they had obtained delivery of the title-deeds at the time of their purchase and had subsequently lost them, was unworthy of credence; he found in substance that the title-deeds were all along with the plaintiff, and the defendants never obtained them from their vendors. As already stated, there is no finding on this point in the judgment of the District Judge; whether this is due to the fact feat the point was not pressed before him, as the respondent suggests, or, because its importance was not fully appreciated, as is suggested by the appellants, it is not easy to determine. But this much is clear that if the District Judge had expressly affirmed the finding of the Subordinate Judge upon this part of the case, all difficulty in connection with the question of estoppel would have disappeared. The defendants as purchasers were bound to obtain production, and if possible, possession of the title-deeds, and if they failed to do so, there negligence deprived them of the protection extended by a Court of Equity to a bona fide purchaser for value without notice. Colyer v. Finch (1856) 5 H.L.C. 905 : 26 L.J. Ch. 65 : 3 Jur. (N.S.) 25; Agra Bank v. Barry (1874) 7 H.L. 135 at p. 157; Oliver v. Hinton (1899) 2 Ch. 583 : 48 W.R. 3 : 81 L.T. 212 : 15 T.L.R. 450; Berwick and Co. v. Price (1905) 1 Ch. 632 : 74 L.J. Ch. 249 : 92 L.T. 110. As however, there is no finding by the District Judge upon this question, we cannot negative the plea of estoppel on the ground of wilful or negligent abstention of the purchasers to call for the title-deeds. We must proceed to examine the question of estoppel as argued by the appellants and respondent, and, if our decision should be adverse to the latter, a remand would be necessary for the determination of the question of fact just mentioned.

(2.) On behalf of the appellants, it has been broadly contended that as they have purchased in good faith from a person, who was allowed by the father of the plaintiff to hold himself out as the beneficial owner, the plaintiff is not entitled to overthrow the purchaser from the apparent owner, by proof of his secret title. The rule by which a transferee from an ostensible owner is allowed to protect himself against a claim by the real owner is embodied in Section 41 of the Transfer of Property Act, and has been repeatedly recognised by the Judicial Committee and the House of Lords Ramcoomar Koondoo v. McQueen 18 W.R. 166 : 11 B.L.R. 46 : I.A. Sup. Vol. 40; Mahomed Mozuffar Hossein v. Kishori Mohan Roy 22 I.A. 129 : 22 C. 909; Varden Seth Sam v. Luckpathy Royjee Lallah 9 M.I.A. 303 : Marsh 461; Colonial Bank v. Cady 15 App. Cas. 267 : 60 L.J. Ch. 131 : 63 L.T.27 : 39 W.R. 17; Caircross v. Lorimer 3 Macq.H.L. 827 : 7 Jur. Jur. (N.S.) 149 : 3 L.T. 130. The respondent has not disputed the soundness of the rule that where, with the consent, express or implied, of a person interested in immoveable property, another person is the ostensible owner of such property and transfers the same for consideration, the transfer is not voidable on the ground that the transferor had not authority to make it, if the transferee has acted in good faith after taking reasonable care to ascertain that the transferor had power to make the transfer. But it has been argued that this doctrine has no application to the circumstances of the present case, first, because there can be no estoppel against an infant, secondly, because, even if there may be an estoppel against an infant, such estoppel cannot be created by the conduct of his guardian, or of another person, and thirdly, because no estoppel can arise where, as here, the ostensible title is created by one person, and the estoppel is sought to be raised by reason of events subsequent, due to the conduct of a person other than the true owner or his representative-in-interest.

(3.) In so far as the first of these contentions is concerned, viz., that there can never bean estoppel against an infant, we are of opinion that the proposition is too broadly formulated. The decision in Sreemutty Mohun Bibi v. Saral Chand Mittar 2 C.W.N. 18 indicates that the statement requires qualification in cases of fraud. See also the decision in Dhurmadas Ghosh v. Brahmo Dutt 2 C.W.N. 330 : 25 C. 616; Brohmo Dutt v. Dharmo Das Ghose 26 C. 381 : 3 C.W.N. 468; Mohori v. Dharmodas 30 C. 539 : 5 Bom. L.R. 421 : 7 C.W.N. 411 : 30 I.A. 114 (P.C.) and Sarat v. Rajoni Ghose 12 C.W.N. 481. As Lord Cowper said in Watts v. Creswell (1714) 2 Bq. Ca. Abr. 516 if an infant is old and cunning enough to contrive and carry on a fraud, he ought to make satisfaction for it. Lempriere v. Lange (1879) 12 Ch. D. 675 : 41 L.T. 378 : 27 W.R. 879. A similar view is supported by well known text-writers (Bigelow on Estoppel, page 602; and Herman on Estoppel, Volume 2, Sections 1116-1121). The cases on the subject, however, specially in England, are difficult to reconcile and Babman v. Kingston (1880) L.R. 6 Ir. 328; Bartlett v. Wells (1862) 1 B. & S. 836 : 31 L.J.Q.B. 43 : 8 Jur. (N.S.) 762 : 5 L.T. 607 : 10 W.R. 229 may possibly support the view that an estoppel does not arise against the infant, whereas, Exp. Unity Joint Stock M. B. Association (1858) 3 De. G. & J. 63 : 27 L. J. Bk. 33 : 4 Jur. (N.s) 1257 : 6 W.R. 640, Overton v. Bannister (1844) 3 Hare 503 : 8 Jur. 906 and Cornwall v. Hawkins (1872) 41 L.J. Ch. 435 : 26 L.T. 607 : 20 W.R. 653 may perhaps, be relied upon in support of the view that a false representation by an infant may create an estoppel against him. See also Laws of England by Lord Halsbury, Volume 13, Section 537, note (S) and Section 560, note (O). But it is not necessary to pursue the subject further or to decide for the purposes of this case whether, in a case of fraudulent, representation, an infant may be bound by estoppel, because it is plain in the case before us, that there was no representation by the infant himself. The first reason assigned by the respondent is thus not sufficient to negative the plea of estoppel urged by the appellant.