RAM CHALITRA THAKUR Vs. SHIVANANDAN THAKUR

JUDGEMENT

(1.) As I understood Mr. Sushil Madhav Mullick's argument in opening this appeal it is this: that there was no circumstance in this case which would necessitate any inquiry by the defendant as to the title of his vendor who according to the judgments of the Courts below, was the farzidar of the plaintiffs. In replying to Mr. Manohar Lal's argument on behalf of the respondent, Mr. De contended that in effect the question of the onus of proof under Section 41, T.P. Act, as to the taking of reasonable care and acting in good faith depended upon whether the purchaser came to Court as a plaintiff or whether it was the real owner who had allowed the property to remain in the hands of his farzidar; whether it was the one or the other who came to Court as plaintiff.

(2.) In my judgment however the propositions which have been put forward and which I have mentioned cannot be supported. Another branch of the argument which was suggested by Mr. De and by Mr. Mullick was that the rule as laid down in Section 41, T.P. Act, was not exhaustive and in support of that argument generally the case of Ramcoomar Koondoo V/s. MacQueen (1872) IA Sup 40 was relied upon. There Sir James Colville, delivering the opinion of the Judicial Committee of the Privy Council, made this statement: The learned Counsel who has argued this case for the respondent does not himself rely upon the circumstances as one which ought to have put the purchaser upon inquiry, and their Lordships cannot see that there is anything in her position as a Mahomedan widow living with her children upon this estate, and sometimes letting it, which should have put anyone upon inquiry whether she was the real owner or not.

(3.) The principle underlying those observations had been described previously in the judgment as a doctrine not only of the English Court of Chancery but a general equitable principle. From the passage which I have read it is clear that applying the equitable principle as laid down in that case, it would be necessary to show such circumstances as would put the purchaser on inquiry. But in my judgment the law has been altered to some extent by Section 41, T.P. Act, which provides that: where, with the consent express or implied, of the persons interested in immoveable property a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it provided (and these are the important words) that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.