1. This and the connected appeal (S.A. No. 1019 of 1928), arise out of a suit for possession of certain arazidari plots in mouza Kohri in the district of Gorakhpur. The entire village Kohri Buzurg was the property of Raja Krishna Kissen Chand. The plaintiff-respondent claims descent from him and his relationship with the Raja will appear from the following genealogical table:
Raja Sital Prasad Chand___________|___________| |Raja Krishna Kishore Babu Mahabal ChandChand |=Rani Rajbans Kuari Babu Harihar Prasad| ChandRaja Mahadeo |Prasad Chand |(adopted son) || || || |Lal Bahadur Prasad Kissen PrasadChand Chand| =Dulhin Raj| Kumari| || Bir Bahadur ChandLala Narain Prasad Babu Raj BahadurChand Chand(Plff.) (Deft. 2)
2. The plaintiff alleges that the estate of Raja Krishna Kishore Chand was honey-combed with debts and the Raja was always beset with a swarm of creditors.
3. The Raja with a view to save his property executed a number of transfers in favour of his relations or dependents. These transfers were merely colourable and ware no more than cloaks to shield the property from creditors and that in fact Raja Krishna Kishore Chand continued to be the owner of the property transferred. As a part of the scheme he executed a conveyance of mouza Kohri Buzurg in favour of Rani Rajbans Kunwari. The property was successively transferred to Adhin Das, Harihar Prasad Chand and Mt. Nanhi Bibi, The woman last mentioned was a mistress in the keeping of the Raja. On 18th July 1870 Mt. Nanhi Bibi executed a sale-deed relating to mouza Kohri Buzurg in favour of Mt. Mohan Kunwari, wife of Raja Mohan Prasad Chand. The plaintiff's case is that no consideration passed under the sale-deed and this transaction was the machinery employed for obtaining an acknowledgment from Mt, Nanhi Bibi that she was not the owner of the property and that the real owner of the property was Raja Mahadeo Prasad Chand. On 13th May 1914, Mt. Mohan Kunwari sold the property in dispute to Sheotahal Dubey, the defendant-appellant for an ostensible consideration of Rs. 2.100. The plaintiff alleges that Mt. Mohan Kunwari was not the owner of the property, that he was the owner of the property by reason of his descend from Raja Mahadeo Prasad Chand and that he alone was entitled to claim the property from the vendee by reason of a custom in the family whereby the property vested in a single heir and the rule of primogeniture prevailed. By a subsequent amendment, the plaintiff claimed to recover this property by reason of being a cosharer with his brother Raj Bahadur Chand and his cousin Bir Bahadur Chand, who are alleged to be members of a joint family with him.
4. Sheotahal Dubey contested the suit upon a variety of grounds. He denied that Mahadeo Prasad Chand was the adopted son of Raja Krishna Kishore Chand. He impugned the legitimacy of the plaintiff and averred that plaintiff's mother Mt. Sheosaran Kunwari was the daughter of one Bhanta Kunwari who was a brahmin widow. He pleaded that Bhanta Kunwari was the mistress of Babu Thakur Prasad Singh and that Mt. Sheosaran Kunwari was born to them and that Baldeo Prasad Chand was not and could not be lawfully married to Sheosaran Kunwari. The defendant contended that all the transfers which had successively taken place from Raia Krishna Kishore Chand right up to Mt. Nanhi Bibi were real transfers for consideration, that Nanhi Bibi was the full owner of the property by her purchase and that Mt. Mohan Kunwari was the absolute owner of the property under the purchase dated 18th July 1870, that the latter passed a good title to the property in dispute under the sale-deed dated 13th May 1914 and that the plaintiff's claim was hatred by Section 41, T.P. Act. The defendant also contended that Raj Bahadur Chand and. Bir Bahadur Chand not having joined the claim, the plaintiff was in no case entitled to possession of more than a quarter share in the disputed property.
5. The Court of first instance found that Mahadeo Prasad Chand had been adopted by Raja Krishna Kishore Chand, that Mt. Sheosaran Kunwari the mother of the plaintiff was a Thakur woman of legitimate descent and that the pedigree set; up by the plaintiff was fully proved.
6. The Court of first instance, however, found that the plaintiff had failed to make out the case that the several transfers held in succession from Raja Krishna Kishore Chand right up to Mt. Nanhi Bibi were not genuine transactions. There was evidence to indicate that these transfers had taken effect and were not mere devices to protect the property from the creditors of Raja Krishna Kishore Chand.
7. The Court of first instance further found that the sale-deed dated 18th July 1870. executed by Mt. Nanhi Bibi in favour of Mt. Mohan Kunwari was a real transfer from the vendor to the vendee and had been executed for consideration.
8. The trial Court repelled the plea, that Section 41, T.P. Act, was a bar to the suit. It appears that Sheotahal Dube had not cared to examine the title-deed of his vendor before he purchased the property on 13th May 1914. Reliance was placed upon several transfers made by Mt Mohan Kunwari, but Sheotahal Dubey had not cared to examine the documents under which the transfers were made. Indeed those documents were not produced in evidence in this case. It was, therefore, not possible to say whether Mt. Mohan Kunwari was putting herself forward as the absolute owner of the property while making the transfers or was doing so as the guardian of her minor sons. The Court of first instance held that under the sale-deed dated 18th July 1870. Mt. Mohan Kunwari was not the real owner of the property but that the property was purchased for her husband Mahadeo Prasad Chand and her two sons Baldeo Prasad Chand and Krishan Prasad Chand. The result, therefore, was that Mt. Mohan Kunwari was not the owner of the property and could pass no title to Sheotahal Dubey under the sale-deed dated 13th May 1914. The Court of first instance held that the plaintiff had failed to prove that he was a member of a joint family with his cousin Bir Bahadur Chand.
9. As a result of the aforesaid findings, the trial Court granted the plaintiff a decree for a moiety share in the plots in dispute.
10. Both the parties were dissatisfied with the decree and preferred appeals. The appeal of Sheotahal Dubey was numbered as Civil Appeal No. 73 of 1927 and that of Lal Narain Prasad Chand was registered as 689 of 1927, These two appeals were heard and disposed of by one judgment. The appeal of Sheotahal Dubey was dismissed. The appeal of Lal Narain Chand was allowed. The result was that the plaintiff's claim was decreed in its entirety.
11. The two decrees of the lower appellate Court have given rise to the appeals which are now before this Court for consideration.
12. In appeal No. 733 of 1927, the lower appellate Court agreed with the finding of the trial Court that it is proved that Mahadeo Prasad Chand was the adopted son of Raja Krishna Kishore Chand and that the plaintiff's mother was a Thakur woman of legitimate descent. It also agreed with the trial Court in holding that the various transfers impugned by the plaintiff were real transactions and for consideration. The lower appellate Court upon a consideration of the peculiar nature of the recital contained in the sale-deed dated 18th July 1870, coupled with other evidence, documentary and circumstantial, came to the conclusion that under the sale deed referred to herein-not Mt. Mohan Kunwari-but her husband and her sons were the real purchasers of mouza Kohri Buzurg from Mt. Nanhi Bibi. A plea had been taken in the memorandum of appeal that the suit was barred by Section 41 T.P. Act. This plea, however, was abandoned and was never pressed. The lower appellate Court observed that the defendant-appellant was not entitled to the protection afforded by Section 41, T.P. Act because he was not a purchaser in good faith inasmuch as he had not even cared to look into and examine the title-deed of his vendor. Upon these findings appeal No. 733 of 1927 was dismissed.
13. In the cross-appeal, the lower appellate Court did not go into the question whether the pretension of the plaintiff founded upon impartibility and the law of primogeniture had been established. It does not even go into the question as to whether Bir Bahadur Chand was a member of a joint family with the plaintiff. Indeed, it was unnecessary to go into these questions because the plaintiff was entitled to a decree for possession of the entire property claimed by ouster of the defendant who was a rank trespasser for the obvious reason that the plaintiff was a cosharer with his brother Raj Bahadur Chand and his cousin Bir Bahadur Chand. Where property is held in coparcenary or in co-ownership, it is open to any one of the cosharers to maintain a suit for possession of the entire property against a trespasser. The reason for the rule is that in the absence of a partition, the right of each co-owner extends to the whole property jointly with the other co-owners and that the attempt to reclaim the property is for the obvious advantage of all the cosharers.
14. In this view appeal No. 1019 of 1928, must fail and is dismissed with costs.
15. In appeal No. 1018 of 1928, three points have been urged by the appellant. The pedigree has been impugned upon the ground that the lower appellate Court has not given due weight to a mortgage of the year 1899 in which Mt. Benhsa Kuar has been described as the kept mistress of Thakur Prasad Singh. In this document Mt. Benhsa Kuar has been described as kept mistress of Thakur Prasad Singh and this description, to speak the least, is very peculiar, it does not, however, appear how this recital in this document is admissible in evidence. It is not an admission by the plaintiff or of any person from whom the plaintiff derives his title. It is not a statement of a person, who is dead, or who cannot be found and whose state merit may be treated as admissible under Section 32, Evidence Act. The Courts below did not discard the document on the ground of its inadmissibility although they were clearly entitled to do so. They, however held that this document was not of much evidential value and was, in no case, weighty enough to prevail against the voluminous evidence, oral and documentary, produced by the pialntiff. The finding arrived at by the Court below was clearly based upon a balance of evidence on the record and cannot be challenged in second appeal.
16. The plaintiff contended that, under the sale deed, dated 18th July 1870. Mt. Mohan Kunwari was not the owner of the property and that she was a benamidar for her husband and her sons. In this document the purchaser has been mentioned as Mt. Mohan Kunwari, wife of Raja Mahadeo Prasad Chand and guardian of her minor sons, There is nothing unusual in describing the female purchaser as the wife of Raja Mahadeo Prasad Chand but it is something very peculiar and unusual to describe her as the mother and guardian of her minor sons, There was no difficulty in the construction of the document but the Courts below were entitled to take into consideration the peculiar nature of the recital referred to above in considering the question whether Mt, Mohan Kunwari was purchasing the property on her own account or on account of her husband and her minor sons. The Courts below took into consideration a number of other matters which were relevant to the issue and which were founded upon documents of an unimpeachable character. Upon these data, they came to the conclusion that the real purchasers of the property were Raja Mahadeo Prasad Chand and his two sons. This was a finding of fact based upon evidence. The plaintiff has failed to show that this finding is vitiated by an error or misapplication of law, This finding, therefore, must stand and cannot be displaced by the appellant.
17. It has been argued that, the suit is barred by Section 41, T. P, Act. The point was raised in the written statement. A definite issue was framed. The Court of first instance held that the defendant was not entitled to the benefit of Section 41, T.P. Act, and enumerated a number of circumstances which were fatal to the defendant's plea. It appeared that the defendant had not paid to the vendee the full amount of the sale consideration. He had made no enquiries into the vender's title. He had not cared to examine the various documents of transfer executed by Mt. Mohan Kunwari from time to time with a view to satisfy himself whether she had held herself out in those documents as the absolute owner of the property which she was transferring under those instruments. Upon these facts the Court of first instance was justified in coming to the conclusion that the conditions of Section 41, T.P. Act, were not fulfilled in the case,
18. It ought not to be lost sight of that Section 41. T.P. Act, is a statutory recognition of the principle enunciated by the Judicial Committee in Ram Coomar v. Mc Queen 11. Beng.L.R. 46:
It is a principle of natural equity that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice or something which amounts to constructive notice of the real title, or there existed circumstances which ought to have put him upon an enquiry that, of prosecuted would have led to a discovery of it.
19. There can be no manner of doubt that; there were certain avenues of enquiry before the appellant and if the enquiry had been followed up it would have led to a discovery of the fact that the plaintiff and his brother were the real purchasers of the property.
20. Section 41. T.P. Act, was pleaded in the memorandum of appeal to the lower appellate Court but it was not pressed That Court, however, without going into the evidence in full endorsed the finding of the trial Court that the plaintiff having refused to examine the title deeds of his vendor was not entitled to the benefit of Section 41, T.P. Act.
21. The appellant cannot be allowed to take a plea in second appeal which he had deliberately given up in the lower appellate Court. It would be unfair to that Court and also to the respondent if the appellant is allowed to revive that plea. The result is that this appeal fails and is dismissed with costs.