Posted On by &filed under High Court, Madras High Court.

Madras High Court
Jamna Das And Ors. vs Uma Shanker And Anr. on 27 February, 1914
Equivalent citations: 25 Ind Cas 158
Bench: H Richards, Banerji


1. This is a suit on a simple mortgage executed on 13th November 1907 by Lal Muhammad. The suit is defended by the mortgages under a second mortgage of the same property executed by Lal Muhammad and his wife, Zahnran, in February 1908. Money was left with the mortgage’s under this deed to pay off the prior mortgage in .suit, but the mortgages did not pay it but brought a suit on their mortgage without imp leading the plaintiff, the prior mortgage.

2. The Court of first instance decreed the suit holding that Lal Muhammad was the de facto owner of the property and that even if he was not, Section 41 of the Transfer of Property Act applied .

3. The lower Appellate Court reversed the decree on the ground that the real owners of the property were not Lal Muhammad but his father-in-law, Muhammad Bakhsh, and after him his wife, Zahuran, and that Section 41 did not apply. The plaintiff: comes here in second appeal. As regards the first point, vie., who was the real owner of the property, 1 prefer the finding of the Court of first instance. Muhammad Bakhsh, Zahuran and Lal Muhammad had none of them, originally any real title to the property. They were trespassers but acquired a right by more than twelve years’ adverse possession. Muhammad Bakhsh held the property for many years, he took Zahurau, his daughter, and Lal Muhammad, her husband, to live with him and long after his death these two lived in the house. I think it might very fairly be argued that they were in adverse possession jointly after the death of Muhammad Bakhsh. I do not, however, think it is necessary to discuss the question, as in my opinion, section 41 of the Transfer of Property Act clearly applies.

4. The lower Appellate Court is of opinion that in realizing rents, etc., Lal Muhammad did not act as owner of the house but merely acted as agent for his wife and that the least inquiry would have made the plaintiff aware of the real facts. 1 am unable to agree with this view.

5. The original rightful owner of the house sued Lal Muhammad for possession. I cannot find any of the papers relating to that suit in the record, but it is not denied that Lal Muhammad defended, that suit and was found to be entitled to it owing to the adverse possession for more than twelve years. He may have raised the plea that his wife was the real owner, but it does not appear that he was exempted, from the suit.

6. The fact that the rightful owner brought the suit against Lal Muhammad shows pretty clearly that he was regarded by the public as the ostensible owner.

7. Lal Muhammad alone executed the deed in suit and no sort of objection was raised by Zahuran. In the deed executed in favour of the respondent even she does not repudiate the loan but professes to leave money with the mortgages for its satisfaction, though it seems very doubtful whether she ever intended that it should be satisfied.

8. I do not agree with the lower Appellate Court that plaintiff could have easily ascertained the true facts had he cared to inquire. Lal Muhammad was in possession of the house dealing with it as owner; he had been sued by the person originally entitled to it and had won the case. Was the plaintiff bound to push the inquiries as to what happened years before that and to ascertain whether it was Muhammad Bakhsh or Lal Muhammad who originally obtained adverse possession? I think not it is not disputed that the respondents claim through Zahuran and that if she is bound by Section 41 they are bound also.

9. In my opinion the plaintiff is entitled to a mortgage decree and, I, therefore, set aside the decree of the lower Appellate Court and restore that of the Court of first instance. The plaintiff does not now wish to put to sale more than one-third of the property and the decree will, therefore, relate to that share only.

10. The plaintiff will receive costs in all Courts, The appellant undertakes to make good the deficiency in Court-fees and that amount will be added to the costs.

11. This appeal arises out of a suit on foot of a mortgage executed by one Lal Muhammad on the 13th of November 1907. The suit was defended by persons who claimed under a mortgage made in 1908 by Lal Muhammad and his wife, Zahuran. They allege that Lal Muhammad had no interest in the property. The facts are practically admitted. One Mnhamraad Bakhsh entered into possession of the property adversely to the real owner. He had a daughter of the name of Zahuran, who married Lal Muhammad. These persons and probably other members of the family of Muhammad Bakhsh continued in possession of the property until Muhammad Bakhsh’ died. After his death Lal Muhammad and his wife, Musammat Zahuran, continued in possession. No doubt the property was managed by Lal Muhammad after the death of his father-in-law. In the mortgage in favour of the defendant it is stated that the property was inherited by Musammat Zahuran from her father. There is also a statement that the executants No. 2 was in proprietary possession. Whether this was a mistake or not is not very clear, but the two statements are not consistent. The lower Appellate Court found that Lal Muhammad was only managing1 the property on behalf of his wife. Furthermore, that had the plaintiff made the least inquiry he would have found that Lal Muhammad had no title whatever. We may mention here one more fact connected with the mortgage in favour of the defendants. In the mortgage-deed the mortgage now suel upon was mentioned and it was also mentioned that money was left in the hands of the in mortgage to pay off the amount of that mortgage. The defendants-appellants who were subsequent mortgages did not pay off the amount of the mortgage for the following reason. A suit was brought by a son of Muhammad Bakhsh, and he obtained a decree for two-thirds of the property. They considered that under these circumstances they were not bound to pay off the mortgages but gave credit for the amount against their own mortgage and sued to realize the balance which they had actually advanced. Under these circumstances the lower Appellate Court dismissed the suit as against the mortgaged, property but give a simple money-decree against Lal Muhammad. On appeal to this Court a learned Judge reversed the decree of the lower Appellate Court and restored the decree of the Court of first instance which had given a decree for the sale of the mortgaged property.

12. In our opinion the decree of the lower Appellate Court must be restored. We consider that under the circumstances of the present case the property must be deemed to have become the property of Muhammad Bakhsh and after his death passed to his heirs. Lal Muhammad had no title of any kind. The suggestion whether Lal Muhammad was” the ostensible owner of the property with the consent, express or implied, of the heirs of Muhammad Bakhsh, and the further question whether the plaintiff in the present case bona, fide took the transfer after taking reasonable care to ascertain the title of Lal Muhammad, were questions of fact to be decided by the lower Appellate Court. This Court is bound by the findings of fact of the lower Ap-p3llate Court in second appeal and cannot go behind them whether it approves of the finding or not. We must, therefore, take it that Lal Muhammad was not the ostensible owner within the meaning of Section 41 of the Transfer of Property Act. We have already stated that, in our opinion, as a matter of law, ho had acquired no interest in the property by reason of the fact that he had lived with his father-in-law, Muhammad Bakhsh. This being so, no interest of any kind passed to the plaintiff under the mortgage of the 13th of November 19J7, and his suit so far as it sought a sale of the mortgaged property was rightly dismissed. We allow the appeal, sot aside the decree of this Court and restore the decree of the lower Appellate Court .with costs of both hearings in this Court.

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