N.G. Chandavarkar, J.
1. This was a suit to recover the property in dispute from the defendant on the allegation that it originally belonged to one Solbanna, who sold it on the 4th of July 1903 to Guracharya by Exhibit 11; that Guracharya having died in 1905 it descended to his widow Laxmibai; that she sold it, on the 2nd of October 1907, to the plaintiff by a sale-deed (Exhibit 12). The defendant who was in actual possession pleaded that she was the owner of the property, and that Guracharya's purchase (Exhibit 11) was benami for her, because she having been in his keeping, he had purchased the property for her, in his name, with her own money.
2. In the Court of first instance the issues raised were:--Whether the defendant had purchased the house in suit from Solbanna with her own money and got from him the sale-deed (Exhibit 11) in Guracharya's name benami for her? That issue was found in the affirmative. The second issue was:--Whether the plaintiff had notice of that fact? And the Court found that the plaintiff had no notice. The third issue was: -- Whether the plaintiff was the owner of the house in suit? The Court found that the plaintiff was not the owner, and that, therefore, the plaintiff was not entitled to the relief which he claimed, either by way of possession or manse profits.
3. The plaintiff appealed. The lower appellate Court agreed with the Court of first instance on all the questions of fact. And with reference to the question of the plaintiff's notice of Guracharya's benami purchase, that Court observed that 'the plaintiff must be held to have had constructive notice of whatever rights actually vested in the defendant, because the defendant was the person in possession, although as a matter of fact there was no direct evidence of knowledge.'
4. It is contended before us that this view of the learned District Judge is erroneous in law. It is true that the plaintiff, had no notice of the defendant's ownership; and that the plaintiff was misled by the fact that the sale-deed (Exhibit 11) was in Guracharya's name, and that, on his death, it was in the custody of his widow Laxmibai. So far the plaintiff had reason, to believe that the property belonged to Guracharya, and he could have successfully urged estoppel as against the defendant but for another principle of law. It is found by the Court below that the property was in the actual possession of the defendant at the date of the plaintiff's purchase. It was therefore the plaintiff's duty, not merely to rely upon the paper title disclosed by the sale-deed Exhibit 11 but also to make enquiries of the defendant in actual possession as to her title. Therefore, so far as the defendant was concerned, the plaintiff having failed to make any enquiries of her was bound by such title as she possessed. This is the law expounded in Kondiba v. Nana ILR(1903) 27 Bom. 408, 5 Bom. L.R. 269, and it applies to the facts of this case. The , plaintiff fails because he omitted to make the enquiries which he was bound to make to perfect his own title and by his own negligence exposed himself to the risk of purchasing property which in reality belonged not to his vendor but to the defendant.
5. The decree must, therefore, be confirmed with costs.