MUSAMMAT JASODAR DUSADHIN Vs. MUSAMMAT SUKURMANI MEHTRANI

JUDGEMENT

(1.) The subject-matter of the suit giving rise to this appeal was one room in a house in Ranchi town bearing Plot No. 439 and holding No. 223. The plaintiff- respondents bought this house in 1931 from Musammat Bhuini. Bhuini had been the wife of Damri Dusadh who died in 1926. They had a daughter Jasoda who is defendant No. 2 and is married to Kuar Ram Dusadh, defendant No. 1. The house was purchased in 1908 for Rs. 60, the deed being taken in the name of Bhuini, and there has been controversy whether she or Damri was the real purchaser. The Munsif held that the real purchaser was Damri and the Judicial Commissioner thought that this was doubtful. After Damri's death there was in 1929 a Municipal Survey and Record of Rights was prepared. The house was entered in the name of Bhuini. The sale deed by Bhuini to the plaintiffs was, as I have said, in 1931 and in 1932 the brothers of Damri brought a suit to set aside the transfer alleging the house to have been Damri's and not Bhuini's and alleging themselves to bethe reversioners of Damri. In deciding the suk, the Court came to a finding that the house had been Damri's but that his brothers were not the next reversioners, the daughter being a nearer heir and, therefore, they could get no relief.

(2.) The present suit was instituted by the purchasers from Bhuini on November 26, 1932, alleging that they had bought the house from Bnuini and had got possession except for one room which the defendants were occupying. They allowed the defendants to remain as tenants in one room at Re. 1-4-0 rent per mon h. They are now suing to eject the defendants after notice to quit. Tne plaintiffs claimed the house, alleging first, that Bhuini was the purchaser in 1908 and the absolute owner of it and that by purchase from her they had acquired an indefeasible title. In the alternative they alleged that as Damri's widow she was his next heir and had those powers which a Hindu widow has to alienate property for purposes of necessity and that the transfer was for necessity. The Muasif dismissed the suit being of opinion that the house was purchased by Damri from his own money ; that un his death Bhuini was not legally entitled to inherit the property having become unchaste and left his protection ; and, thirdly, that legal necessity for selling the house to the plaintiffs was not established. The learned- Judicial Commissioner expressed himself ab doubtful of the correctness of the finding of the Munsif on the first issue but has not recorded any finding. On the second point, he has come to no finding whether Musammat Bhuini was entitled to inherit Damri's property after his death and on the third question he has not examined the evidence of legal necessity at all. He regards the case &B concluded by the provisions of Section 41, Transfer of Property Act, being of opinion that the defendants of this suit held out Musammat Bhuini to be the ostensible owner of the property and, therefore, are estopped from impeaching a transfer by her. It is unfortunate that the learned Judicial Commissioner has so misconceived the functions of a first Court of Appeal. The primary duty of the first Appellate Court is to determine all the questions of fact which are necessary for the decision of the case, and it is desirable to determine all the issues of fact on which a decision has been given by the Court of first instance. By doing so, the High Court in second appeal is enabled to apply the law to a set of ascertained facts; and if this is not done, there is every likelihood of the case having to be remanded for finding on the issues which have been left open. A distinguished Judge once said; "Take care of the facts and the law will take care of itself" and though this may be an overstatement, it is sound advice in nine cases out of ten. In second appeal it is contended that no case under Section 41, Transfer of Property Act, was set up in the plaint, and that if it had been, the learned Judicial Commissioner has failed to appreciate the considerations which ought to have been borne in mind in coming to a finding whether Section 41 was applicable to the facts of the case before him. The learned Judicial Commissioner has quoted from Section 41, Transfer of Property Act, but in applying the proviso regarding bona fide action of the transferee, he has not observed the importance of the words "after taking reasonable care to ascertain that the transferor had power to make thetransfer". In Nageshar Prasad V/s. Pateshri Partab Narain Singh 20 CWN 265 : 34 Ind. Cas. 673 : AIR 1915 PC 103 : 3 LW 454 : (1916) 1 MWN 142 (PC), the Privy Council approved a decision of the High Court in which it had been observed that: The learned Subordinate Judge apparently relies on the provisions of Section 41, Transfer of Property Act, but he overlooks the proviso to that section which is to the effect that a transferee from an ostensible owner can defeat the real owner only if after taking reasonable care to ascertain that the transferor had power to make the transfer, he acted in good faith. There is nothing in this case to show that the plaintiff made any inquiry whatever to ascertain the title of his mortgagor, Kudra Naraia Singh.

(3.) Similarly in Skeogobind Ram Barai V/s. Anwar Ali 10 PLT 254 : 116 Ind. Cas. 779 : AIR 1929 Pat. 305 : Ind. Rul. (1929) Pat. 347, after observing that the elements necessary to constitute equitable estoppel under Section 41, Transfer of Property-Act, should be clearly pleaded in the written statement. Jwala Prasad, J., observed that: Proof of Inquiry is an essential element and a preliminary condition enjoined by Section 41 in order to protect a bona fide purchaser for value from an ostensible owner.... The mere keeping of one's name over a property either in Government records or in private papers does not relieve the purchaser from the ostensible owner from the duty and responsibility of making an inquiry into the title of that owner.