1. The first point to be decided in this case is as regards the objection taken by defendant No. 2 to the maintainability of the suit in its present form by the plaintiff, having reference to the words of Section 66 of the new Civil Procedure Code. 1 cannot hold that that section, assuming that its language is intended to, and does, cover a case of this kind, can now preclude the plaintiff from carrying to its conclusion a suit which was instituted as far back as 1905. If it be further argued that the suit was equally unmaintainable under the terms of Section 317 of the old Code of Civil Procedure, which was then in force, I need only rest upon the actual words of that section. Defendant No. 2 is not a certified purchaser of the property in suit, nor does he stand in the shoes of the certified purchaser within the meaning of the decision in Hari v. Ramchandra ILR 1906 31 Bom 61. I must, therefore, decide that issue in the plaintiff's favour and against defendant No. 2.
2. The facts, which are material to be stated in the present case, are that the plaintiff Hoorbhai bought the property in suit benami in the name of the deceased defendant No. 1 Abu Bakar Moledina, and that shortly afterwards the benamidar Abu Bakar mortgaged it along with property of his own to defendant No. 2 in the year 1902. In 1903 defendant No. 2 reconveyed both the properties to defendant No. 1, who then executed another mortgage of the property in suit to defendant No. 2 for principal and interest of the former mortgage and an additional sum of Rs. 900 odd. The plaintiff now seeks to have it declared that this mortgage is not binding upon her property and further that defendant No. 2 be ordered to restore to her the title-deeds, if he possesses them, of the property in dispute.
3. It is evident, upon this short statement of facts which are undisputed, that the only question to be answered is whether defendant No. 2 was a purchaser for value bona fide and without notice. That question, I think, admits of a very short answer. No doubt there has been a considerable confusion in examining both the case law and the principles which underlie this peculiar branch of the law of equity along with the corresponding principles of the broader doctrine of estoppel; but I accede to the argument of Mr. Bahadurji for the plaintiff that Section 41 of the Transfer of Property Act is the statutory qualification and restriction of the general law of estoppel contained in Section 115 of the Evidence Act which is a rule of proof. If the case had to be decided under Section 115 of the Indian Evidence Act upon general and unmoLlifiel principles of estoppel, I have felt from the first that the plaintiff would have a great difficulty in evading that bar. But the Transfer of Property Act has plainly restricted the more general principles of Section 115 when the transactions relate to immoveable property. Section 41 imposes, as the English Courts have consistently inclined to impose, upon the purchasers of immovable property the duty of exercising reasonable care and diligence. A very superficial analysis would reveal obvious distinctions between the application of the ordinary principles of estoppel on the one hand and the application of the principles to which effect has been given under the 41st section of the Transfer of Property Act. And it is because this case must, in my opinion, clearly be governed by that section, which really is not strictly speaking within the scope of estoppel at all, that I think the question can be shortly and satisfactorily answered; for, bearing in mind the evidence which has been laid before the Court, I do not think that it can seriously be contended for defendant No. 2 that he attempted to make any reasonable enquiry at all into the true nature of his vendor's title. The story which he tells is that upon being offered this mortgage he virtually left the matter entirely in the hands of his solicitors, to whom he showed, for ought this Court may know, something which may have been no more than a certified copy of the sale certificate or a certified copy of the decree, pursuant to which the sale was effected. And it is equally clear from the evidence of Mr. Mulla that the Solicitors were from the first dissatisfied with the title and advised defendant No? 2 that if he advanced the money upon it he was doing so at his own risk. An attempt has been made to explain that by saying that the only doubt entertained was as to the title prior to the decree and the Court-sale, but the defendant himself admits that he took no further steps to clear up this matter, while Mr. Mulla distinctly says that the defendant did not wish him to pursue his investigations further.
4. Now, even assuming that this case were a case to be decided under Section 115 of the Evidence Act, there must always be a question of fact to be answered. The Court would have to be satisfied that the plaintiff, against whom a bar of estoppel is set up, intentionally caused by his word, act or omission the defendant to believe something to be true and to act upon that belief, and underlying that, would certainly be a question of fact whether in all the circumstances disclosed, the Court was satisfied that the defendant, relying on the bar of estoppel was caused to believe a certain thing to be true by the plaintiff's act, did in fact believe it to be true and acted upon that belief. Having regard, however, to the character of the deceased defendant No. 1, who was a man of no position or means and who appears to have been little better than a common law tout, it may reasonably be conjectured, to say no more, that defendant No. 2 would have and ought to have suspected that he was not the kind of man to have bought a property of considerable value. Going a step or two further and noting the relations, seemingly relations of intimacy, which existed for a time between defendant No. 1 and defendant No. 2, the conduct of defendant No. 2, in regard to this matter of doubtful title, would certainly seem to suggest that he and defendant No. 1 had come to an understanding upon the matter and that defendant No. 1 had induced him (defendant No. 2) to advance his money upon a pretty clear comprehension of what the truth of the matter was. There is again the suspicious circumstance that while the first mortgage embraces certain property of defendant No. 1, when the mortgage of 1903, which is now in evidence here, was executed, the whole of defendant No. 1's property was released and the whole charge was placed upon the plaintiff's property. I have very little doubt from the facts which have been stated by the plaintiff in her evidence that defendant No. 1 was a rogue, who had obtained complete influence over the plaintiff, an unprotected and illiterate woman and that he deliberately-planned to impose upon her, draw her into litigation in every direction and so despoil her of all her property. Defendant No. 2 is a shrewd money-lender, who may be presumed to tie fully capable of looking after his own interests, and I should find great difficulty in believing that he was really satisfied with the title, which defendant No. 1 offered to him, before entering upon this transaction. It is not seriously denied that the plain, tiff Hoorbai was at the time and has ever since been in actual occupation. of the property in dispute, and actual possession has always been regarded by the Courts as constructive notice. It is however-immaterial for my present purposes to pursue an enquiry as to what the probabilities were of defendant No. 2 arriving at the truth, had he made the ordinary enquiries which were to be expected from an honest and respectable purchaser, because. as I have said he did not make any enquiry at all, and, therefore, upon a principle too well settled now to be questioned, he would be clearly deprived of any help which he might otherwise seek to obtain from the equitable doctrine of purchase for value without notice.
5. There is really, I think, nothing more in the case necessary to be discussed, for it has long since been admitted by defendant No. 1 that the property was in fact purchased benami with the plaintiff's money and for her use. And that being so, defendant No. 2 having chosen to advance his money without taking reasonable care to satisfy himself about the nature of the security cannot, I think, claim to enforce any equities against the plaintiff.
6. As to his contention that the monies which he advanced to defendant No. 1 were in fact expended upon the plaintiff's property and for her benefit and should, therefore, now be made a charge upon the property, all that needs be said is that this matter was fully gone into before the Commissioner at a comparatively early stage of this case between the plaintiff and defendant No. 1, defendant No. 2 not objecting; and the Commissioner found that no part of this money had been expended upon the plaintiff's property. So far as the evidence given at this trial goes, it tends to support the same conclusion. The plaintiff is very positive that she herself defrayed all the expenses of the repairs and that she never had the use or benefit of these mortgage loans. Defendant No. 2 is hardly in a contradractar that evidence. That part, therefore, of his defence, which rests upon this special ground, seems to me to be unsustainable.
7. Upon these general principles, which must, I think, be admitted to be beyond all serious question, the plaintiff is entitled to a decree for the restitution of any title-deeds of this property 1 which defendant No. 2 may hold, and for a declaration that the mortgages effected upon it by defendant No. 1 are not binding upon the plaintiff or upon the plaintiff's property.
8. I need not, I think, dwell upon the last technical objection taken by defendent No. 2 that inasmuch as this suit has abated against defendant No. 1, it cannot be continued against him. The only reason why it has abated against defendant No. 1 is that he has died and left no known heirs. Being apparently heavily indebted no one is anxious to come forward and acknowledge himself to be his heir. It is not as though the plaintiff had made no efforts to find out the heirs and representatives of the deceased Abu Bakar and bring them upon the record. It is very much to the plaintiff's interest to find the heirs of Abu Bakar, against whom she has been awarded large costs; and the correspondence shows that the plaintiff has made all reasonable efforts, as indeed was to be expected, to ascertain whether any heirs of Abu Bakar are in existence. In that state of affairs I do not think that there is any substance in the contention, which was rather half-heartedly pressed by the defendant, on this technical ground.