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Annamalay Mudaly and anr. Vs. A. Moonesamy Mudaly and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1895)5MLJ86
AppellantAnnamalay Mudaly and anr.
RespondentA. Moonesamy Mudaly and ors.
Cases ReferredShidapa v. Ranu and Malkhana I.L.R.
Excerpt:
- - 86. section 41 of the transfer of property act merely gives expression to principles formerly well recognised......a gift from chockilingam to his sister, they did not receive with their conveyance any deed of gift, nor have they brought evidence to show they had ground for believing there had been an oral gift. the collector's certificate in unnamalai's name is not a title-deed, and could at most show unnamalai's profession but not the basis of her title.2. we do not understand why the evidence of madura mudaly (3rd defendant) should be discredited. his interest in defending the suit appears identical with those of defendants 6th and 7th, and there is nothing to show his mortgage claim was settled out of court by plaintiffs or by 2nd defendant. had he been in a position to contest the suit on the same lines as those adopted by defendants (5th and 7th, it would apparently have been his interest.....
Judgment:

1. The learned Judge has not found--and we do not see any evidence, that 2nd defendant was the ostensible owner with the consent of the plaintiffs, and this being the case the plaintiffs are not debarred from putting forward their title as against the purchasers from the ostensible owner. All that is alleged against the plaintiffs is that they did not come forward to claim the property or warn the intending purchasers, but it is not alleged that this quiescence, whatever was the cause of it--was accompanied by any misrepresentation in act or word. See Bas-wantapa Shidapa v. Ranu and Malkhana I.L.R. (1884) B. 86. Section 41 of the Transfer of Property Act merely gives expression to principles formerly well recognised. We must also hold that defendants 6th and 7th did not make reasonable enquiries as to the title they were purchasing. They do not state that they made inquiries as to who performed Chockalinga's funeral ceremonies, nor did they enquire of Moonesamy (1st defendant) who was living close by and though they allege a gift from Chockilingam to his sister, they did not receive with their conveyance any deed of gift, nor have they brought evidence to show they had ground for believing there had been an oral gift. The Collector's certificate in Unnamalai's name is not a title-deed, and could at most show Unnamalai's profession but not the basis of her title.

2. We do not understand why the evidence of Madura Mudaly (3rd defendant) should be discredited. His interest in defending the suit appears identical with those of defendants 6th and 7th, and there is nothing to show his mortgage claim was settled out of court by plaintiffs or by 2nd defendant. Had he been in a position to contest the suit on the same lines as those adopted by defendants (5th and 7th, it would apparently have been his interest so to do.

3. We must allow the appeal and decree in plaintiff's favor for possession of item No. 2 in the plaint schedule. Respondents (defendants 6th and 7th) must also pay appellants' costs on the original side and in this appeal.


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