G. Mehrotra, J.
1. These are two appeals arising out of the same judgment of the Additional District Judge, Upper Assam Districts at Silchar. The respondent Panchananda Sarma brought a suit for declaration of title and recovery of khas possession over land measuring 10B. 12K-9Ch. paying revenue of Rs. 6/10/- in the entire dags Nos. 3331334/337/336/333
6/10/- in the entire dags Nos. 748 691 of patta of Barjalengi in the District of Cacher and land measuring 3B-5K-2CH. 10 Gandas in dag No. 338/339 in Patta No. 42 paying revenue of Rs. 2/11/- on the ground that the land belonged to his father who died about 25 years ago and that at the time of his death, he left behind two minor sons, the plaintiff and defendant No. 2 and the widow respondent No. 3.
The lands covered by patta Nos. 37 and 42 in the two villages mentioned above were left by him. The land of patta No. 37 has an area of 21B-11K-2Ch. In patta No. 42, the plaintiff's father held only 6B-10K-5Ch. by purchase. After the death of the father, the names of the plaintiff and defendant No. 2 were mutated in respect of the lands of the two pattas.
The plaintiff-respondent left for elsewhere and his brother defendant No. 2 and their uncle Madhabananda Rath Sarma were in the management of the ancestral property. When the plaintiff came back towards the later part of 1353 B. S., he found that his interest in patta No. 42 had been transferred to defendant No. 1 by defendant No. 2 and the land covered by patta No. 37 had been transferred by his mother, defendant No. 3, to defendant Nos. 4 and 5, without his consent and knowledge.
The transferees, in due course obtained mutation of their names in respect of the lands transferred. The plaintiff demanded possession over them which was refused and a suit for declaration of title and recovery of possession had to be brought. Defendant No. 1 and defendants 4 and 5 contested the suit, inter alia, on various grounds of law and fact. The defendants contended that the suit was barred by limitation and that the defendants were bona fide purchasers and protected under Section 41 of the Transfer of Property Act.
Defendant No. 1 in the written statement asserted that as the plaintiff and defendant No. 2 ran into debts, the plaintiff fled away some twenty;
years hence and was since unheard of, defendant No. 2 declared himself alore to be the owner of the entire estate and had been in enjoyment and possession thereof and to pay up the debts, sold the land to defendant No. 1. Defendants Nos. 4 and 5 who were purchasers of the land of patta No. 37 from the mother, contested the suit on the ground that it was barred by limitation and that they were bona fide purchasers for value and thus were protected under Section 41 of the Transfer of Property Act.
The trial court disbelieved the contention of the defendants and decreed the suit. The decree of the trial court has been affirmed by the lower appellate Court.
2. Appeal No. 60 has been filed by the defendants Nos. 4 and 5 who were transferees from the mother of the plaintiff-respondent and Appeal No. 61 has been filed by the defendant No. 1 who is the transferee from the brother of the plaintiff-respondent-defendant No. 2. The transfer deed in favour of the defendant No. 1, was made on 26-2-1934 and the one made by the mother in favour of defendants Nos. 4 and 5 was executed on 26-4-1940. Defendant No. 1 has raised three contentions.
Firstly it is argued by him that the plaintiff being out of possession for more than 12 years, the suit is barred by Article 142 of the Limitation Act. Secondly it was contended by him that even if Article 144 applies to the suit, the defendant's possession at any rate became adverse to the plaintiff from the date when he took the sale deed in the year 1934. Lastly it was contended that the defendant purchased the property bona fide for value after making due enquiry and is protected by Section 41 of the Transfer of Property Act.
The same points have been urged by the learned counsel for the appellants in the appeal No. 60, filed by the defendants 4 and 5. The suit was originally filed before the munsiff in 1947, but it was filed before the Subordinate Judge in the year 1949. The appellants of appeal No. 60, who were the purchasers under the deed of 1940, therefore could not take up the plea that they have themselves acquired title by adverse possession.
They have, however, contended that the plaintiff not being in possession within 12 years from the date of the suit, the suit was barred by Article 142 and have also contended that in any case, the mother being in adverse possession for over 12 years, she had a valid title to transfer the property. It was also contended by the learned counsel that as the appellant was unheard of for more than 7 years before the date of the transfer, the presumption under Section 108 of the Evidence Act of plaintiff's death was rightly raised by the mother and she acquired a valid title to the property as an heir to the plaintiff and has rightly sold the property to the contesting defendants.
3. The contention raised by the appellants that the presumption of the death should be raised under Section 108 of the Eviden.ce Act and on the date of the transfer of the property by the mother, the plaintiff not having been heard of for more than 7 years will have to be considered dead and thus the mother inherited the property from the son and was entitled to sell it, can be disposed of on a short point. Although Section 108 entitles one to raise a presumption that a person--not heard of for 7 years is dead, but at what time within that period he died is not a matter of. presumption, but of evidence and the onus of proving that the death took place at any particular time within the 7 years lies upon the person who claims a right to the
establishment of which that fact is essential. Reference in this connection can be made to the case of Lal Chand v. Ramrup Gir, 53 Ind App 24: (AIR 1926 PC 9) (A). That was a suit brought by Mahant for recovery of certain property. The preceding mahant abandoned his office in 1892 and the earlier suit brought by the plaintiff mahant had already been dismissed in the year 1897 on the ground that it was not established that his predecessor was dead. In 1916, another suit was brought by the plaintiff for recovery of the property on the ground that as at that time the previous mahant was not heard of for more than 7 years, it should be presumed that he died 7 years later and the suit was not barred by limitation.
This contention was repelled on the ground that under Section 108, presumption of death can be raised but it cannot be presumed at what particular time he died--whether in the end of 7 years or in any particular date.
4. So far as the question of limitation is concerned, after the death of the father of the plaintiff, the properties were mutated in the names of the plaintiff and his brother. Both of them jointly took possession of the property. After sometime of the death of the father, the plaintiff left the place and was not heard of for a very long time. During his absence, the first sale deed was executed by his brother in favour of the defendant No. 1 in the year 1934.
The brother of the plaintiff was a co-sharer and as a co-owner was entitled to remain in actual possession of the entire property. In the absence of any clear act of ouster on his part, he cannot prescribe adversely to the plaintiff. No overt act has been proved by which it can be inferred that the brother of the plaintiff exercised any adverse right to the plaintiff. The plaintiff, therefore, continued to be in possession through his brother and he cannot be said to be out of possession prior to the year 1934.
So far as the other sale deed by the mother is concerned, that was executed in favour of defendants 4 and 5 in the year 1940. After the death of the father of the plaintiff, the names of the plaintiff and his brother were mutated and thereafter only a few days prior to the execution of the sale deed, the name of the mother was substituted in place of the plaintiff, and the name of the brother continued along with the mother till 1940.
Admittedly therefore, the brother continued in possession as a co-sharer and it cannot be said that the mother had any way dispossessed the plaintiff. The possession of the plaintiff therefore continued till 1940 and the suit cannot be said to be barred even though Article 142 applies. It also cannot be said that the mother or the transferee acquired any adverse possession against the plaintiff. The suit was within 12 years from the date of the transfer in the year 1940.
As regards the earlier sale deed of 1934, the plaintiff's brother, who was a co-sharer continued in possession and the plaintiff also will be deemed to be in possession through his brother. He acquired no title by adverse possession against the plaintiff. The point however urged by the counsel for the appellant is that the transferee acquired adverse possession to the property as his possession started in the year 1934. In our judgment, there is no substance in this contention either.
The transferee cannot acquire a higher title that the transferor himself. The transferor was in possession on behalf of the plaintiff as a co-sharer and thus the transferee could only acquire the rights of a co-sharer in the property. Unless any overt act on his part to the knowledge of the pliantiff is established, he cannot be said to have acquired any adverse possession against the plaintiff.
It was urged by the learned counsel for the defendant No. 1 that from the date of the transfer, his possession became adverse to the plaintiff and he acquired full title on the date of the suit. The sale deed itself amounted to an act of ouster. The deed was however an act of the executant and it cannot be considered to be an overt act of the transferee. The only act of the transferee was that he continued to be in possession of the property after the sale deed. The plaintiff had no knowledge of the sale deed.
When he left the place, the property was in possession of his brother as a co-sharer and he could regard the possession of the transferee from his brother also as that of a co-sharer. It cannot, therefore, be said that the transferee acquired any adverse possession against the plaintiff and that the suit was barred by Article 144 of the Limitation Act.
5. It was held by the Allahabad High Court in the case of Subah Lal v. Fateh Mahamad, AIR 1932 All 393 (B), that the mere possession by mortgagee did not amount to dispossession. It must be with the knowledge of the persons interested in the property. The mortgagee acquired only the rights of a purchaser. In that case, one of the co-sharers had executed a mortgage and the mortgagee had been in possession of the entire property.
When the co-sharers are jointly entitled to a property, each of them has a right to the property. Thus a mere possession does not necessarily imply his denial of the title of his co-owners, their ouster or any assertion of adverse possession against them. If the other co-sharers find no occasion to effectively enjoy the property at the time, they need not mind the possession by one of them.
In the eye of law they are deemed to be in constructive possession of the joint property, but if their title has been denied and their right of enjoyment has been repudiated to their knowledge, the question stands on a different footing. From that moment the character changes and it becomes adverse against those who have knowledge of the ouster and time begins to run against them.
The question further considered in the Allahabad case however was whether the same principle can be extended to a transferee of the property and it was held that no distinction can be drawn between the co-sharer and a transferee of such co-sharer. It cannot be disputed that the underlying principle is that the possession by one co-sharer of the entire joint property is perfectly lawful as he has the title not only to his undivided share but to the whole of the property and has possession of the whole property as well as of every undivided part of it. The possession therefore is referable to his legal title and cannot be adverse to the other co-sharers.
The principle of law based on the mere fact of co-ownership would apply with equal force to a transferee from a co-owner who steps into the shoes of his vendor. There is no duty cast upon the co-owner to watch the conduct of another co-owner and be on a look out to find out the extent of the share purported to be transferred and to intervene if more than the real share has been transferred. He is entitled to assume that the permissive nature of the possession has passed on to his co-sharer's transferee who has now become the co-owner in place the original co-owner.
Of course when such an assertion of adverse title to the whole is brought to his knowledge and it is accompanied by his ouster and exclusion, adverse possession would then commence as against him. It will be then necessary for the transferee to establish that the denial of the title and ouster were brought to the knowledge of the other co-owner and in absence of any such proof, he would not be able to perfect his adverse possession. He cannot acquire adverse possession simply on the ground that the transferor co-sharer who lawfully remained in possession of the entire property had transferred the whole property to him.
6. The Allahabad view was followed by the Patna High Court in the case of Dipnarain Rai v. Pundeo Rai, AIR 1947 Pat 99 (C). In the Patna case, the plaintiff along with some of his co-owners brought a suit for title and recovery of possession. The plaintiff had left the place during life time of his father. He remained unheard of for a pretty long time.
During his absence the father died and the name of his other cousin brother was mutated over the entire property. He also died and the defendants claimed title through him. In the circumstances, the plea of adverse possession was taken up by the defendants. It was observed by Ray J., at p. 103 of the report as follows:
'There is no difference in principle in considering the question of adverse possession as between two co-owners and between a co-owner and a transferee from another co-owner. I find no-difference in principle to show in what way a co-owner's heir can stand on a better footing than an assignee.'
The principle of law enunciated in the Allahabad case, referred to earlier was accepted by the learned Judge of the Patna High Court. The other Judge Meredith J., also agreed with the conclusion arrived at by Ray J., and observed that
'there was nothing in the defendant's conduct which could properly be regarded as putting the plaintiff number one upon notice that they were holding the property adversely to him, and not on? his behalf if and when he should ever return. The defendants as heirs of Panarasi would be the proper persons to hold and look after the property in either case in the plaintiff's absence.'
7. The same principle will apply to the facts of the present case. As we have already observed when the plaintiff left the place, his brother remained in charge of the entire property and during his absence, if he transferred the property to the defendant No. 1 or later on his mother, who came in possession along with the other brother, transferred it to the other defendants, it cannot be said, in the absence of the plaintiff's knowledge of the deed that he believed that the transferees were not in possession as a co-sharer. The suit is, therefore, not barred by limitation.
8. The main point, which has been urged by the counsel for the appellants is that the appellants being bona fide transferees for value are protected by Section 41 of the Transfer of Property Act. Section 41 of the Transfer of Property Act provides as follows:
'Where, with the consent, express or implied, of the person interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it; provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.'
The first essential requisite, to attract the provisions of Section 41 is that a person is the ostensible owner of the property with the consent expressed or implied of the real owner. After it has been established that the ostensible owner of the property has been allowed with the consent expressed or implied of the real owner to hold himself out as the owner of the property, it is further necessary for the transferee to show that he took the transfer after taking reasonable care to ascertain that the transferor had the power to make the transfer and that the transfer was for consideration and in good faith.
Before the transferee can take benefit of Section 41, he has to make due enquiry about the title of the transferor. The learned counsel for the respondent contended that in the circumstances of the present case, it cannot be inferred that the mother or the brother were ostensible owners of the property with the consent, expressed or implied of the plaintiff. It was further contended that no due enquiry was made by the transferees as regards the title of the transferor and thus the defendants are not protected by Section 41 of the Transfer of Property Act.
The learned counsel for the defendants-appellants, on the contrary, contended that the whole conduct of the plaintiff was such that the implied consent of the plaintiff can legitimately be inferred and further that there was nothing to put them on enquiry. The plaintiff was unheard of for a very long time. He took no interest in the property and the brother and the mother were treating the property as their own. In the circumstances, an implied consent of the plaintiff can legitimately be inferred.
Further having found that the names of the mother and the brother were mutated, no further enquiry was required to be made by the transferees.
9. It was strongly contended by the learned counsel for the respondents that the words 'expressed or implied' in Section 41 of the Transfer of Property Act imports that the real owner should be in some manner privy to the creation of the ostensible ownership and unless some act of the real owner is pointed out as holding out another person as the owner, his mere in-action and silence cannot amount to his conent by implication. Reliance was placed on the case of The Catholic Mission Presentation Convent Coimbatore v. Subbanna Goundan, AIR 1948 Mad 320 (D), At page 322 of the report, it was observed as follows:
'The expression 'with the consent express or implied' must, we apprehend, import in the context of the section, that the real owner is in some manner privy to the creation of the ostensible ownership. It has to be remembered in this connection that the law of limitation allows the plaintiffs a period of 12 years from the death of Nan-jappa's widow for suing to recover their property, and the plaintiffs have brought their suit within the time limited. If in the meantime a squatter settled on the property and purported to sell it, caveat emptor, Section 41 is not intended, in our judgment to afford protection in such cases.'
This case was tried to be distinguished by the appellants on the ground that the facts of that case were different. In that pose the plaintiff could not file the suit earlier and did not assert his right, because he was not aware of his legal position till then. In these circumstances, it was held that mere inaction on the part of the plaintiff did not amont to implied consent on his part. At page 322 it was however observed by the Madras High Court as follows: .
'But probably they took no steps to assert them because they were not aware of the change effected by the statute in the Hindu Law of inheritance. However that may be, if they did nothing by way of holding out defendant 1 as the owner, can it be said that, by their mere inaction and silence, they impliedly consented to defendant 1 holding the property as 'ostensible owner'? We think not.'
It is true that consent need not be proved by positive evidence. It may be inferred from the con-1 duct of the real owner. But in the present case, in our opinion, no particular conduct of the plaintiff has been pointed out which will go to show that he was privy to holding out his brother or his mother as the rightful holders of the property. It was contended that his conduct in not keeping in touch with the other members of his family and taking no interest in the management of the property by itself may amount to implied consent to old out to the world that the ostensible owner was the real owner of the property.
We, however, do not think that this fact by itself can lead to an inference that the plaintiff held out the ostensible owner to be the real owner. When he left the place, his brother was entitled as a co-sharer to look after the property and was in possession. Under the circumstances, it cannot be said that mere inaction on his part amounts to his consent. It is no evidence that he had any knowledge of the fact that his brother or mother were treating the property as their own and he acquiesced in it.
10. In the case of Shamsher Chand v. Mehr Chand, AIR 1947 Lah 147 (E), a similar view was taken. The trial court has also found that the transferee did not make any enquiry about the title of the transferor and on that ground also he is not protected under Section 41 of the Transfer of Property Act. It is one of the essential requirements of Section 41 that the transferee, after taking reasonable care to ascertain that the transferor had power to transfer bona fide, for consideration takes tne transfer.
It was urged by the learned counesl for the respondents that the questoin whether any enquiry was made or not is a question of fact and this Court will not interfere in a second appeal against that finding.
11. Reliance was placed for this proposition
on the case of Jamuna Das v. Uma Shankar, ILR
36 All 308 (F). This decision however was ex
plained and distinguished by the same Court in
Mul Raj v. Fazal Imam, ILR 45 All 520: (AIR 1923
All 583) (G), wherein, it was held that whether
Section 41 applies is not the question of fact. As was
observed in the case reported in AIR 1948 Mad
320 (D) at page 322, whether a transferee took rea
sonable care to ascertain that the transferor had
power to make the transfer, has no doubt to be
determined with reference to the circumstances of
the particular case, the test being whether he
acted like a reasonable man of business and with
But the question whether that test has or has not been properly applied in any particular case cannot be regarded as one of pure fact not open to review in a second appeal.
12. Defendant No. 1, the transferee from the brother has admitted that he made no enquiry. No evidence has been adduced by the other transferees to prove that any enquiry as regards the title of the transferors was made. The stand taken by the
transferees is that the plaintiff was believed to be dead and consequently the transferees could make no further enquiry. So far as the transferee from the brother is concerned, it could have been known to them that after the death of the father the names of both the sons were mutated.
It is not denied by the transferee that he did not know that after the death of the father the property was held by both the sons. Under the circumstances, it was essential for the transferee to make further enquiry as to how far the allegation of the transferor that the plaintiff was dead was correct. In our opinion, the transferee cannot be said to have made reasonable enquiry only if he got the property upon the words ot the transferor that the plaintiff was unheard of for a long time and that the transferor had been asserting his title to the property.
As regards the transfer from the mother, the name of the mother was mutated only a few days before the actual date of transfer. In fact, it is not unreasonable to believe that the transferees having found that the name of the mother was not even mutated in the revenue records, insisted upon the mother to get her name mutated before they could get the sale deed in their favour.
There was the brother's name along with the mother. All that should have put the transferees on their guard. As a reasonable and prudent man, they should not have remained contented with the representation made by the mother that she was the owner of the property as the son was not heard of for a long time, but should have made further enquiry whether the plaintiff was alive or dead.
13. We, therefore, think that the decision of the lower appellate court is correct on the point that there was no proper enquiry made by the transferees and they are thus not protected by Section 41 of the Transfer of Property Act. In the result, therefore, these appeals are dismissed with costs.
Sarjoo Prosad, C.J.
14. I agree; but I would wish to make it clear that in certain cases a transfer by a co-owner of the entire property, on the footing that it belongs to him alone to the detriment of the interest of his co-owner, might in itself amount to an act of ouster so as to convey an independent right to the purchaser and enable the purchaser to start prescribing against the co-owner of his transferor from the very date of the transfer. In all such cases, however, it must be shown that the co-owner, who is sought to be deprived of his interest, had knowledge of the transfer constituting the act of ouster. In the absence of any such knowledge, the possession of the transferee cannot be held to be adverse to the true owner. It may become so from the date of such knowledge and not from the date of the transfer itself. Article 144 and not Article 142 of the Limitation Act would apply to such cases. The decisions in AIR 1932 All 393 (B), and in AIR 1947 Pat 99 (C), lay down the same principle and they should not be taken to postulate that in all cases, for purposes of adverse possession, the position of the tranferee from the co-owner is the same as that of the co-owner him-self.
15. On the point of ostensible ownership, I would prefer to rest my decision mainly on the footing that the transferee did not make any enquiry about the title of the transferor. Such a finding has been arrived at by both the Courts below and not only by the trial Court, and the finding being one of fact is binding in these second appeals. Indeed, the Defendant No. 1 himself admitted that he made no enquiry ar to the right of the plaintiff's brother to transfer the entire property. I would, therefore, prefer not to commit myself definitely on the other question whether in the circumstances of this case, it should not be inferred that the plaintiff by his conduct had impliedly consented to his brother and mother acting as ostensible owners of the property, on which point I feel that an inference to that effect could be legitimately founded on the facts established. Section 41 gives protection to a transferee who takes reasonable care to ascertain that his transferor had power to make the transfer for consideration. Where this element of reasonable care to ascertain the true fact is missing, the transferee cannot have the advantage of this legal provision.