1. This is a plaintiff's appeal and arises out of a suit for declaration that a certain share of 5 biswas odd in village Mahnishora, mahal Abdur Rahman, in district Etah, is not liable to be sold in execution of a mortgage decree obtained by defendants 1 to 3. Both the Courts below have dismissed the suit.
2. The share in dispute belonged to one Abdur Rahman, who owned a much larger, share, namely, 2 biswas and 171/2 biswansis, in the aforesaid village. He mortgaged one biswa ten biswansis of his share to Baldeo Prasad. The remaining 1 biswa, 71/2 biswansis is not in dispute. It is common ground that the share which is in dispute in the present litigation is included in the 1 biswa and 10 biswani share which had been mortgaged to Baldeo. In the settlement of 1308 F. 2 biswas, 171/2 biswansis share was made a separate ma-hal of 20 biswas and the 1 biswa 10 biswani share mortgaged to Baldeo consequently became 10 biswas, 8 biswansis and 14 kackwansis. In l909 the sons of Baldeo sued on their mortgage and had the mortgaged property sold in execution of their decree. The sale of only 10 biswas was enough for satisfaction of the decree. The remaining 8 biswarasi and 14 kachwansi share was saved. The plaintiff was declared to be the purchaser of the aforesaid 10 biswas for a sum of Rs. 2,638-3-0.
3. By some mistake the sale certificate mentioned only one biswa as the property sold to the plaintiff. The mistake was not detected at the time, probably because 10 biswas were roughly taken to be equivalent to one biswa, as it was before 1308 F, and which was supposed to have been mentioned in the sale certificate. Mutation of names was effected in favour of the plaintiff only in respect of one biswa. The remaining 9 biswas continued to be recorded in the name of Abdur Rahman or his representatives in interest. By a deed, dated 28th June 1917, Abdur Rahman sold plot No. 124, measuring 14 bighas, 10 biswas, to the contesting defendants. The sale-deed contained an indemnity clause and a collateral security under which Abdur Rahman hypothecated a 6 biswa share for satisfaction of the vendees' claim, in case they were deprived of possession of the property conveyed in the sale-deed. The vendees were ejected from plot No. 124 at the instance of some other persons. Accordingly they sued for recovery of compensation by sale of the 8 biswas hypothecated to them as a collateral security. The plaintiff was a party to that suit and objected to sale of 5 biswas 18 bis-wansis 18 kachwansis and 5 nanwan-sis, now in dispute, which could come out only out of the 10 biswas which she had purchased at the auction. The Court refused to adjudicate on her claim in that suit and passed a decree for sale in favour of the contesting respondents. The plaintiff then brought the suit, which has given rise to this appeal.
4. Both the Courts below have found that the plaintiff purchased 10 biswas, a fact which was apparent from sale proclamation, list of bids, etc., and that it was by mistake that the sale certificate mentioned only one biswa. A plea of limitation raised by the defendants was also overruled. They however held that the defendants were protected by Section 41, Transfer of Property, Act, being a bona fide transferee: for consideration. On that finding the plaintiff's suit was dismissed. The lower appellate Court has observed on this point as follows:
A vendee is not expected to examine the record relating to sale with the view of finding out defects in the sale certificate, for he would be guided by the presumption that the sale certificate was correctly passe.
5. The learned Subordinate Judge also observed that the defendants:
as transferees are expected to exercise ordinary and prudent care in making inquiry about the title of the vendor.
6. In our opinion, the learned Subordinate Judge has placed before himself too low a standard of prudence for an intending transferee under a private treaty. Section 41 makes it incumbent on the transferee to take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith. It is obvious that the first step which the transferee is expected to take is to search the registration office to ascertain what transfers, if any, had been made by the transferor. If the contesting defendants had done so before accepting a hypothecation of the share in dispute from Abdur Rahman, they would have easily discovered what he had mortgaged to Baldeo as far back as 1894. He was also expected to know that the mortgaged share became 10 biswas odd in 1308 F. He would naturally have been put to an enquiry as to how much of the mortgaged property had been sold. One of the defendants, Sardar Singh admits in this evidence that the only enquiry he made was that he asked the patwari as to how much had been sold to the plaintiff. He did not inspect even the sale certificate and cannot contend that he relied on it. The fact that Abdul Rehman's name stood recorded in the khewat and the defendants accepted the entry as correct cannot afford protection under Section 41, T.P. Act. In a case like this, knowledge of the contents of the registered mortgage-deed in favour of Baldeo should be imputed to the defendants, and taking such knowledge as the starting point every prudent man would follow it up by further enquiries as to when the mortgage was enforced, how much of the mortgaged property was sold and to whom. For ascertaining these facts every prudent man is expected to inspect the record of the suit and the sale proceedings. If the defendants had done so, they would have discovered from the proclamation of sale and the list of bids that 10 biswas had been sold to the plaintiff and not 1 biswa, as recorded in the sale certificate. In these circumstances, we are clearly of opinion that Section 41, T.P. Act, does not apply to the case.
7. The plaintiff is therefore entitled to a decree for declaration, as prayed for. The appeal is allowed and the plaintiffs suit is decreed with costs in all Courts.