Bansidhar Seth vs Gopi Lal Seth and Others

Agarwala, J.—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 20th 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.

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.

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. Bashiram Meatari AIR (1929) Cal 686 and Kanhu Bal Marwari v. Palu Sahu AIR (1920) Pat 1 . In second appeal the learned advocate for the appellant has contended that the defendants are estopped u/s 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.

The learned advocate referred to and relied on the decision of the Privy Council in Sarat Chunder Dey v. Gopal Chunder Laha (1893) 20 Cal 296. The facts of that case were that one Umed Ali had transferred some property in the name of his wife Arju Bibi by a hibanama. This transfer was found not to have been bona fide or for consideration and was in fact merely a benami transaction. After Umed Ali''s death his son, Ahmed Hossein, and his daughter, Rahimunnissa, succeeded to shares in this property. Ahmad Hossein acted for his mother in a transaction by which she mortgaged the property. It was held that the fact that Umed Ali had allowed the property to stand in the name of his wife did not raise an estoppel but that Ahmad Hossein''s action while representing his mother in the mortgage transaction estopped him from asserting that he had a beneficial interest in the property that was mortgaged. The facts of that case are entirely different from the facts of this case, because as I have already stated, neither the pleading nor the evidence disclosed any act or omission on the part of Khirodhar that could have deceived the plaintiff.

The evidence of two witnesses examined on behalf of the plaintiff was referred to by the learned advocate for the appellant but that evidence is of so vague a nature that it is impossible to accept it as proof that Khirodhar made any representation either by his declarations, his actions or his omissions. Reference was also made to the decision of this Court in Firm Jankiram-Sital Ram and Others Vs. Chota Nagpur Banking Association, Ltd. and Others, . The facts there were that a cosharer mortgaged certain houses alleging that they were his self-acquisition, and the other cosharers, knowing the true facts and the contents of the mortgage bond, attested the same and on the strength of this representation the mortgagee advanced the loan which was secured by the bond. In execution of a decree on the basis of the bond the mortgagee purchased the property.

When he attempted to obtain delivery of possession he was resisted by persons who claimed to have purchased the interest of the cosharers who had witnessed the mortgage bond. The plaint in that suit to which we have been referred contained a distinct allegation that the mortgagee had represented that the mortgaged properties were his self-acquired properties and that his cosharers who were defendants 2 and 3 had confirmed this representation. In my view, it is too late in second appeal for the plaintiff''s plea of estoppel to be entertained in the absence either of reference to it in the pleadings or of unambiguous evidence on the point. I would therefore dismiss this appeal with costs.

Rowland, J.

I agree.