R.N. Misra, J.
1. Defendants have carried this appeal against the reversing judgment and decree of the learned Subordinate Judge of Parlakhemundi in a suit for declaration of title, confirmation of possession and other consequential reliefs.
2. According to the plaintiff, the disputed property which is an acre of land originally belonged to defendant No. 1, On 19-3-1964, defendant No. 1 entered into an agreement (Ext. 1) with the plaintiff for sale of six acres of land --three acres of cultivable land and three acres of podor land -- for a total consideration of Rs. 3,300/- out of which Rs. 1,200/- was paid by way of part payment and it was stipulated that the document would be registered within two months on payment of the balance consideration. The property was then under a mortgage and by arrangement with the mortgagee, plaintiff was put in possession of the property covered by the agreement of sale. Defendant No. 1 avoided to complete the deal. Subsequently plaintiff found out that defendant No. 1 had gifted away the properties in favour of his wives -- defendant No. 2 and Lalitamma. When plaintiff pressed for the document, defendant No. 1 absconded and the sale contemplated under the agreement never materialised. In 1969, on the intervention of some of the relations of defendant No. 1, it was decided that the plaintiff shall have title to one acre of land (the disputed property) in lieu of the advance amount of Rs. 1,200/-. A sale-deed was accordingly executed in his favour being Ext. 2 by defendant No. 2 for herself and as mother-guardian of the third defendant (then a minor) in the absence of defendant No. 1 and plaintiff is alleged to have surrendered possession of the remaining property covered by Ext. 1. In 1970, defendant No. 1 returned and started disturbing the possession of the plaintiff over the disputed property. Plaintiff, therefore, instituted the suit on 4-7-1972.
3. Defendants 1, 2 and 4 filed a joint written statement while the minor defendant No. 3 filed a separate written statement through the guardian ad litem. It was pleaded that the propery in dispute was the joint family property of the members of the family and thus the third defendant had a share in it. The second defendant was not entitled to make the alienation. There was neither legal necessity nor any pressure to the estate and the minor has not at all derived any benefit out of the sale. It was further pleaded that the advance of Rs. 1,200/- had been refunded when planitiff failed to complete the deal for want of funds and that the plaintiff did not acquire title under Ext. 2. The guardian of defendant No. 3 had also advanced similar contentions,
4. Seven Issues were struck and the trial Court found that (i) the agreement (Ext. 1) was a valid owe: (ii) the defence plea of refund of Rs. 1,200/- to the plaintiff was not correct; (iii) the suit was barred by principles of constructive res judicata; (iv) the disputed property was with the plaintiff; (v) defendants 2 and 3 had no right to execute the sale-deed in favour of the plaintiff and the same would not bind defendant No. 1 in any manner and on the aforesaid findings, the plaintiff's suit was dismissed.
5. Plaintiff appealed and advanced two contentions, namely (i) that he was protected by the provisions of Section 41 of the T. P. Act and (ii) that he was entitled to invoke the aid and protection of Section 53-A of the T. P. Act. The lower appellate Court accepted both these contentions and reversed the decree of the trial Court and decreed the suit. Against this reversing decree, the defendants have carried the appeal.
6. According to Mr. Murty for the appellants, (a) the property belonged to the coparcenary of defendants l and 3 and the third defendant had admittedly a share therein. Defendant No. 2 could not act as karta of the family during the absence of defendant No. 1 and an alienation of coparcenary property by the second defendant was, therefore, contrary to law; (b) in the absence of appropriate permission as envisaged in Section 8(2) of the Hindu Minority & Guardianship Act, the alienation by the mother (defendant No. 2) was not valid; (c) the principles embodied in Section 41 of the T. P. Act have been erroneously applied to the facts of the case. The doctrine of ostensible owner has not been properly understood and the interest of the third defendant could not have been extinguished by invoking Section 41 of the T. P. Act. Plaintiff was aware of the fact that defendant No. 1 was the owner of the property in view of Ext. 1 and of the fact that the gift deed in favour of the second defendant was not valid. Therefore, the principles contained in Section 41 of the T. P. Act had no application; (d) No consideration had passed from the plaintiff to defendant No. 2 and adjustment as pleaded has not been established and even if that be found, it would not constitute 'part-performance' for the application of Section 53-A of the T. P. Act. The equitable principle embodied in Section 53-A, it is contended, is a shield and not a sword.
7. After hearing both sides, I am inclined to agree that plaintiff cannot claim title under Ext. 2, It is well settled that defendant No. 2 could not be the karta of the family. The interest of defendant No. 3 could be sold for legal necessity or benefit of the family estate either by defendant No. 1 as karta or by defendant No. 3 acting through a guardian during the absence of the first defendant, provided appropriate permission of the Court had been obtained. Ext. 2, therefore, cannot be the source of title of the plaintiff.
8. I am inclined to agree with Mr. Murty that neither Section 41, nor Section 53-A of the T. P. Act could have been called in aid by the plaintiff for obtaining a decree. Plaintiff well knew that the property belonged to defendant No. 1 and defendant No. 3. That being the position, even if the deed of gift was valid, plaintiff could not have accepted the second defendant, a donee from defendant No. 1 alone, to be the ostensible owner in the face of the gift being in favour of the two wives of defendant No. 1. There is force in the contention that the principle of equitable estoppel contained in Section 41 of the T. P. Act cannot affect the minor's interest. In order that this section applies, four essential conditions are required to be satisfied :
(a) the transferor is the ostensible owner;
(b) he is so by the consent, express or implied, of the real owner;
(c) the transfer is for consideration; and
(d) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
It has been pointed out in a series of cases that if any one of these elements be wanting, the transferee is not entitled to the benefit of the rule. (See AIR 1929 Cal 83 (Macneil & Co. v. Saroda Sundari Debi), AIR 1921 All 311 (Ballu Mal v. Ram Kishun) and AIR 1965 Mad 432 (Motimul v. Visalakshi Ammal)).
The position that the transferee must plead the relevant facts and invoke the application of the provision in order to obtain the benefit is equally settled in law. (See AIR 1929 Pat 305 (Sheogobind Ram Barai v. Anwar Ali); AIR 1961 Pat 314 (Ramsaran Mahton v. Harihar Prasad); AIR 1962 Pat 392. (Gauri Shankar Singh v. Smt. Jwalamukhi Devi)). Not a word has been mentioned in the plaint and even reference to the statutory provision has not at all been made. The lower appellate Court, therefore, went wrong in extending the benefit of the section to the plaintiff.
Similarly, Section 53-A of the T. P. Act could not have been pressed into service by the plaintiff for obtaining a decree for declaration of his title and relief of injunction. As in the case of Section 41 of the Act, here too the special facts had to be pleaded to invoke the application of the provision but plaintiff did not do so. Again, plaintiff brought the suit on the basis of title said to have been acquired under Ext. 2 and not to protect the possession obtained under Ext. 1. It is a well settled rule that the doctrine is available to a defendant to protect his possession and does not create a title of the defendant. (See AIR 1940 PC 1 (Probodh Kumar v. Dantmara Tea Co. Ltd.); AIR 1966 SC 1438 (Ram Gopal Reddy v. Addl. Custodian Evacuee Property, Hyderabad) and AIR 1968 SC 794 (Delhi Motor Co. v. U. A. Basrurkar)). Thus the plaintiff was not entitled to invoke this provision for his success in the suit. In the facts of the case also, the benefit of the doctrine was also not available as against, the third defendant. The decree of the lower appellate Court in the premises is not sustainable and has to be reversed.
9. On behalf of plaintiff-respondent, counsel contended that the defence plea that the advance of Rs. 1,200/- had been refunded has been negatived which would mean that the two Courts below have concurrently found that Rs. 1,200/-had been paid by way of advance under the agreement and now that plaintiff is losing title, it is appropriate that the defendant No. 1 is made to reimburse the plaintiff to that extent. I think, in the facts of the case, it is equitable to pass a decree for refund of Rs. 1,200/-as against the defendant No. 1 only.
10. I would accordingly vacate the judgment and the decree of the lower appellate Court and hold that the plaintiff is not entitled to any of the reliefs claimed in the suit, but he do recover Rs. 1,200/- (Rupees One Thousand and Two Hundred) from the defendant No. 1, subject to payment of the appropriate Court-fee as a condition precedent. Both parties are directed to bear their own costs throughout.