1. This is an appeal by the defendants from the judgment and decree of the learned District Judge of Azamgarh in a suit for redemption of two mortgages. One Chetu Lonie usufructuarily mortgaged one anna zamindari share of village Cheontahi to Jaglal Singh on 23rd December 1867 for Rs. 999. A six pies share of the same village was also usufructuarily mortgaged by Chetu aforesaid and his sister-in-law Mt. Jhuri to the same party on 24th August 1868 for Rs. 500. In 1873 strangley enough Jaglal Singh's name was recorded in the revenue papers as owner, On 24th October 1893 Jehli and Jageshar, heir3 of the original mortgagors, sold the equity of redemption to one Bhawani Prasad, defendant 7. On 15th October 1902 Jaglal Singh made a sub-mortgage in favour of the plaintiff. In 1904 Bhawani applied for the correction of the revenue papers and prayed that Jaglal Singh's name be recorded as mort gagee and not as owner. As a result, it was rejected, Bhawani Prasad being referred to a civil suit. No suit was instituted by Bhawani Prasad. On 4th June 1914 the heirs of Jaglal Singh, defendants second party, executed a sub-mortgage in favour of defendants first party. The mortgage-deed provided that the money was left in deposit with the sub-mortgagee with a view to pay up the plaintiff's mortgage dated 15th October 1902. The mortgage of 1902 was redeemed. On 9th December 1922 the heirs of Jaglal Singh renewed the mortgage of the year 1914 by taking a further advance. On 12th September 1923 Bhawani Prasad, defendant 7, sold one anna out of one anna six pies mortgaged share to the present plaintiff. The plaintiff now brings this suit for redemption of the mortgage. The suit was instituted on 12th February 1925.
2. The suit was resisted inter alia upon the ground that it was barred by Section 41, T.P. Act. The Court of first instance dealt with the various pleas which were raised in defence, and, while recording the findings on the other issues in favour of the plaintiff dismissed the suit upon the ground that it was barred by Section 41, T.P. Act. The lower appellate Court has reversed this decision and decreed the plaintiff's suit.
3. It has been argued that the present suit is obnoxious to the provision of Section 115, Evidence Act, by reason of the fact that the plaintiff had made a decla ration in the years 1902 and 1904 that Jaglal Singh was the owner of the property and not the mortgagee. Assuming that such a declaration has been made it does not appear that the said declaration influenced the conduct of the defendants appellants, or their predecessors-in-title in any way so as to operate to their prejudice. There were conflicting documents before the Court below. In some of these documents a statement was made more or less loosely worded which is capable of the construction that Jaglal Singh was being described as the full owner of the property in dispute. There were other documents, notably an earlier mortgage bond of the year 1902, in which Jaglal Singh was represented as the mortgagee of the property in the most unequivocal terms. If the defendants behaved diligently and prudently and pushed their enquiries further afield it would have been impossible for them not to know the true legal position of Jaglal Singh. A party relying upon Section 115, Evidence Act, has to establish not only that the opposite party had made a certain declaration but that the said declaration had been believed and had been acted upon and that it was not reasonably possible for the said party to know the true state of affairs by pursuing enquiries reasonably and with diligence. Where truth is accessible to a party, the plea of estoppel upon representation tails. In agreement with the Court below, we hold that the plaintiff is not barred by Section 115, Evidence Act, from maintaining the present suit for redemption.
4. The plea founded upon Section 41, T.P. Act is equally untenable. According to the finding of the lower appellate Court, the mortgagee was not an ostensible owner with the consent, express or implied, of the mortgagors. Indeed, in an earlier mortgage deed dated 8th July 1902 the mortgagee had admitted that he was no more than a mortgagee of the property in dispute. The learned District Judge remarks:
If the defendants first party had taken pains to ascertain all these facts they must have known what the real position of their transferors was.
5. In order to attract the operation of Section 41, T.P. Act, it is necessary for the party relying upon the section to establish that a particular person was the ostensible owner of the property with the consent express or implied of the person who was the real owner or was interested in the immovable property and to establish the further fact that the transferee had taken reasonable care to ascertain the nature and incidents of the title of the transfer or before accepting the transfer. Two things stand in the way of the appellants. The transfer in their favour was not from an ostensible owner. Again, the title of the transferor had not been enquired into at or before the execution of the mortgage in their favour. Section 41, T.P. Act therefore is clearly inapplicable. We dismiss the appeal with costs.