1. This is a second appeal by three plaintiffs whose suit for a declaration that a sale deed executed by Ashoor Ali, defendant 2, in favour of Mukhtar Husain, defendant 1, dated 21st July 1934, is null and void so far as it is prejudicial to the rights of the plaintiffs. The plaintiffs claimed that they were owners of the property under a prior sale deed of 22nd August 1907 for which their names had never been entered by mutation in the khewat. The plaintiffs represented the persons entitled to 3/4ths of the property in suit and the person entitled to the remaining one quarter has not joined in the suit and he has not been brought on the record. The property in question is shares in various mahals and villages. The plaintiffs were usufructuary mortgagees under a mortgage of 28th December 1885) and a further mortgage of 8th August 1890. Mutation was obtained of the names of the plaintiffs as usufructuary mortgagees in 1905, the owner being recorded as defendant 2. The plaintiffs were in possession of the zamindari shares and for that reason they say they never applied for mutation. The sale deed of 1907 was only for Rs. 49 and registration was not necessary under Section 17(1)(b) of the former Registration Act. Nevertheless the sale deed was actually registered on 24th August 1907. The execution of the sale deed was denied in para. 2 of the written statement of the alleged executant defendant 2 Ashoor Ali and as attestation is not necessary for a sale deed under Section 54, T.P. Act, the production of an attesting witness was not required and the scribe Nazir Khan (P.W. 3) stated that defendant 2 had executed the sale deed in his presence. The Courts below have found that this sale deed was executed in favour of the plaintiffs in 1907 but they have held that under the provisions of Section 41, T.P. Act, defendant 1 is entitled to maintain his present sale deed. Section 41 requires that:
Where with the consent, express or implied, of the person interested in immovable 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 authorized 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.
2. The question is whether reasonable care has been taken by defendant 1. The finding of fact in the judgment of the Court below is that defendant 1, who is the record keeper in the Collector's office, inspected the khewats and enquired from the patwari and examined the mutation registers. He also claimed that he had got enquiry made from the registration office and the trial Court believed that evidence, but the lower Appellate Court has not believed it and has held that he did not have this enquiry made. If he had inspected the registration records for the last 12 years before the sale deed of 1932, he would have found nothing but if he had gone back 25 years to the year 1907 he would have found that there was registration of this sale deed on 24th August 1907. In second appeal it is contended on behalf of the plaintiffs that reasonable care under Section 41 would have led defendant 1 to search the registration records for the period of 25 years. Learned Counsel argues that such a proposition is implied in the ruling laid down in Khatun Fatima v. Shib Singh : AIR1933All917 . The case however was different in some respects, because there was the entry of an owner in the settlement record and it was represented that a portion of his share was the subject of a mortgage. The present case was not one of the entry of a simple mortgage as the entry was of a usufructuary mortgage, and as the entry of the usufructuary mortgage remained, there was no reason to suppose that any suit had been brought on the mortgage. The period of limitation for a usufructuary mortgage is 60 years and presumably in the present case the usufructuary mortgagee was in possession. The circumstances therefore were some what different from the ruling. I am of opinion that it would be an extension of the doctrine laid down in the ruling to hold that search should have been made in the present case for 25 years in the registration office when there was nothing whatever in the circumstances to indicate that any search for that period should have been made. The usual search is for a period of 12 years and in the case of an applicant for auction sale 12 years is the period for a certificate as supplied from the registration office. Under these circumstances, I see no reason to interfere with the concurring decrees of the Courts Wow and I dismiss this appeal with costs. Permission is granted for a Letters Patent appeal.