T SYED FAKRUDDIN SAIB Vs. KATTA RAMAYYA SETTI

JUDGEMENT

(1.) This second appeal raises an important question on the construction to be placed on the wording of Section 41, T. P. Act. The facts that led to this appeal are these.

(2.) The appellants are defendants 8 to 11,13 and 14 who are the sons and daughters of one Ahmed Sahib. Respondents 1 to 5 are the representatives of Katta Subbayya the plaintiff in the suit. The other respondents are the heirs of one Bhandigi Sahib. Ahmed Sahib and Bhandigi Sahib were brothers. Bhandigi Sahib was a police head constable and had retired from service and settled in his native village. The other brother Ahmed Sahib was in service as a Sub-Inspector of Police and it appears that he sent a large sum of money to his brother Bhandigi Sahib. With the moneys so sent by Ahmed Sahib, Bhandigi Sahib purchased properties in his own name. The plaintiff Katta Subbayya took a simple mortgage from Bhandigi Sahib (Ex. B) on 6 August 1928. This was in order to pay off a debt due to one Mr. M. G. Rameswara Rao who was a leading advocate of Anantapur and now dead. Later on the plaintiff obtained a usufructuary mortgage in discharge of the simple mortgage which he had obtained in 1928. Exhibit A is the usufructuary mortgage deed dated 12 September 1930. In between the simple mortgage and the usufructuary mortgage, Ahmed Sahib filed a suit in the District Munsif's Court of Anantapur to enforce his right to the property in suit on the ground that the property having been purchased with the funds advanced by him was really his own property and not that of Bhandigi Sahib. The plaint was returned to be presented to the proper Court as the value of the property exceeded the jurisdiction of the District Munsif's Court and thereupon it was presented to the higher Court. The order of returning the plaint to be presented to the proper Court was passed on 24 September 1930. Exhibit A the usufructuary mortgage was thus effected at a time when the suit was pending in the District Munsif's Court and a few days after the usufructuary mortgage, the order returning the plaint to the proper Court was passed. At the time when the simple mortgage was taken on 6th August 1928, the position was that Ahmed Sahib had unsuccessfully at-tempted to get possession of the properties in certain criminal proceedings. Those proceedings, however, were not effective and did not give Ahmed Sahib the relief that he wanted and it was for the reason that he failed to get relief in the criminal proceedings and also in certain other proceedings to be mentioned later that he filed the suit in the District Munsif's Court on 7th December 1928. The simple mortgage was executed four months earlier by Bhandigi Sahib in favour of Katta Subbayya. The suit filed by Ahmed Sahib in the District Munsif's Court which was later on re-presented in the higher Court ended ultimately in the title of Ahmed Sahib being established as against Bhandigi Sahib.

(3.) On these facts the question is whether the plaintiff is protected by Section 41, T. P. Act. In this suit the plaintiff did not challenge the title of Ahmed Sahib. He was apparently content to proceed upon the judgment of the High Court that Ahmed Sahib was the real owner of the property. He (the plaintiff) mainly rested his case on the fact that Bhandigi Sahib was an ostensible owner in possession of the property with the consent express or implied of the real owner Ahmed Sahib and that he (the plaintiff) took the transfer (first the simple mortgage and later the usufructuary mortgage) after taking reasonable care to ascertain that the transferor had power to make the transfer and acted in good faith. The contesting defendants are 8 to 11, 13 and 14 who are sons and daughters of Ahmed Sahib. They contend that the plaintiff is a resident of the same street as Ahmed Sahib and Bhandigi Sahib that he knew all the litigations between Ahmed Sahib and Bhandigi Sahib and that therefore he had notice of the claim of Ahmed Sahib as against Bhandigi Sahib. It was also said that the plaintiff did not take any steps to ascertain that the transferor had the power to make the transfer and that he did not act in good faith. The trial Court held against the plaintiff and dismissed the suit. On appeal the District Judge held that the plaintiff advanced the money in order to discharge the debt due to Mr. Rameswara Rao, a leading advocate of Anantapur, and that therefore the provisions of Sec. 41 as to good faith and reasonable care to ascertain that the transferor had power to create the mortgage were fulfilled. The appellate Judge also held that on the facts of this case, there was no room to doubt that Bhandigi Sahib was in possession as the ostensible owner with the consent express or implied of the real owner. He stated thus: As appears clearly from the record, Ahmed Sahib has been sending money to his family and getting properties purchased and not showing them in his own name with the purpose of avoiding mention of them in his landed property statement to Government, so that if large properties are shown in the property list, suspicion might not be raised that he had been able to purchase them by ill-gotten gains. The word "not" seems to be incorrect.