JUDGMENT
Kendall, J.
1. This second appeal is from the order of the Subordinate Judge of Budaun, confirming an order of the first Court giving the plaintiff respondents possession of a certain share, which had been the property of one Baldeo Singh. The share in question had been transferred by a deed of sale by Mt. Nanhi Koer to the present appellant in 1923; but the lower Courts have found it proved that Mt. Nanhi Koer had no legal title to the property, although her name had been entered in the revenue papers as in joint possession of it together with the nephews of Baldeo Singh since 1916. Both the lower Courts held that the present appellant had no legal title to the property, and therefore, decreed the plaintiffs’ suit. On second appeal in the High Court, the, case was remanded for a decision on the following issue:
Did the respondents, or any of them, and if so which, take part in negotiating the sale of Mt. Nanhi Koer in favour of Puttu Lal appellant.
2. It had been claimed on behalf of the appellant that the plaintiff-respondents are estopped from contesting the sale in favour of the appellant because they had actually negotiated the sale in favour of the appellant; but the finding after remand is that none of the plaintiffs-respondents took part in negotiating the sale and the plea of estoppel must, therefore, fall to the ground.
3. The other plea that had been taken on behalf of the appellant is that he is protested by the provisions of Section 41 of the. Transfer of Property Act. It is necessary for him to show that the vendor was the ostensible owner, that he acted with reasonable care and that he also acted in good faith. There is no doubt that the vendor was recorded as a part owner of the property of Baldeo Singh together with Baldeo Singh’s nephews, and that she had been so recorded for seven years. Nothing has been said to impugn the appellant’s good faith but it is necessary to consider whether in buying this property from a Hindu a widow he acted with reasonable care. The facts found proved by the lower Courts are that he looked at the khewat. Had he taken one further step and looked at the application for mutation, he would have further found that the nephews of Baldeo Singh, respondents in the present proceedings, had applied for mutation in favour of Mt. Nanhi Koer as well as of themselves. It is urged on behalf of the appellant that this shows reasonable care on his part. Both the lower Courts have held that he did not act with reasonable care. The lower appellate Court remarks:
The appellant himself was aware of the facts which go to show that Nanhi Koer could not be entitled to the share she has sold. He admits that.
4. If this is so, if he knew the facts there would be no need for him to make enquiries; and he may have thought that the present respondents would be estopped. As shown above by me, they are not estopped for negotiating the sale; and it is not argued that the mere fact of allowing the mutation to be made in the widow’s name can act as an estoppel to the claim to the title. I agree with the learned Counsel for the appellant that the decision of whether reasonable care has been taken is a mixed question of law and fact and may be raised in second appeal; but I think it is a question of a kind in which the second appellate Court will be very reluctant to interfere with the decision of the lower Courts, unless very strong grounds are made out. On behalf of the appellant I have been referred to two cases reported as Mul Raj v. Fazal Imam A.I.R. 1928 All. 583 and Mathura Prasad v. Anandi Kunwar A.I.R. 1924 All. 63; but both these cases show very much stronger grounds for maintaining the vendee’s title than the present case. On the other hand, in Ballu Mal v. Ram Kishun [1921] 43 All. 268, it was held that
a person who takes a mortgage from one whom he knows to be a sister’s son of the last owner, (a Hindu), ought to take reasonable care to enquire and ascertain as to whether there are any collaterals in existence of the last owner; and if it is show that the made any such enquiries, he is not entitled to the protection given by Section 41 of the Transfer of Property Act.
5. In the present case, the vendee knew that the nephews of Baldeo Singh had a legal claim to the property, and it appears that he might have easily enquired why they consented to allow his vendor’s name to be recorded as a part owner; whereas he himself knew that her title was not a good one. I do not feel that in the circumstances it can be held in second appeal, against the finding of the lower Courts, that he acted with reasonable care, and that he can claim the protection of Section 41 of the Transfer of Property Act. The result is that the appeal is dismissed with costs.
