Kuppuswami Ayyar, J.
1. The plaintiff is the appellant before this Court and she filed a suit as assignee of a mortgage-deed executed to Konavaikalpalayam Gopala Gokula Virdhi Nidhi, Ltd., for recovery of money due under it. Defendants 2, 4 and 5 alone contested the suit. The others were ex parte. Their case was that the suit mortgage was not supported by consideration. Both the Courts held that the document was not supported by consideration and dismissed the suit. Hence this second appeal.
2. The decision as to whether the document was supported by consideration or not is a question of fact, and I do not feel justified in interfering with a concurrent finding of fact by two Courts on a point like this. It is urged, however, that the learned District Judge committed an error when he sought to draw an inference with regard to the passing of consideration from an endorsement of payment on the mortgage-deed, Ex. I, made in 1934. But I do not think I will be justified in brushing aside the finding of the lower appellate Court on that ground. There is nothing to indicate that the learned District Judge was not aware of the date of the endorsement. As a matter of fact, he refers to the evidence of P.W. 2-with regard to this endorsement and his evidence was that the endorsement included Rs. 1,000 paid on behalf of the bank. In these circumstances, I do not think there is any error or misstatement of fact on which the finding is based. The question how far he was justified in appreciating the evidence in the way in which he did and came to the conclusion is not a matter to be considered by this Court. There were materials on which the lower Court could have come to the conclusion it arrived at and therefore it would not be open to me to interfere with it. It is significant that the first Court has given a finding without reference to Ex. I (a) and I do not think that that finding was arrived at on irrelevant evidence or was perverse.
3. It is next urged that even though the suit hypothecation bond is not supported by consideration, such a plea is not available against the plaintiff who is a bona fide transferee of the mortgage bond for valuable consideration. No authority of this Court has been cited for this position that a plea of want of consideration in a suit filed by an assignee of a hypothecation deed cannot be allowed if the plaintiff is a bona fide assignee for valuable consideration. In Jogendra Kishore v. Salamat Khan : AIR1930Cal92 . a similar plea was sought to be raised on the strength of Section 41 of the Transfer of Property Act. But Mr. Justice Mitter pointed out that Section 41 of the Transfer of Property Act on which the plea was based did not apply to the case of mortgages but only to sales and he has dealt with the point at great length and I entirely agree with his finding. It is true that Mr. Justice Jack was of opinion that an interest of the mortgagee itself was immovable property and where the owner of that property transferred it, the rights of the bona fide purchaser for value from the ostensible owner of that property would be protected under Section 41. I prefer to follow the ruling of Mr. Justice Mitter. My attention was also drawn to another ruling in Ramsumran Pershad v. Rampertab Singh (1915) 22 C.L.J. 574. The facts of that case are different. There the mortgage was impeached and their Lordships had to consider whether they could permit a party to impeach the genuineness of a transaction of a bona fide purchaser for value. This is what was stated there:
The situation here is, in fact, stronger than even a case where the true-owner has. placed an ostensible transferee in a position to mislead a bona fide purchaser for value without notice of the secret title; the mortgage,, the suit thereon, the execution sale, and the delivery of possession through Court, constitute an elaborate network of devices sufficient to induce the belief that the title of Jhas had vested in Manojinarayan Singh. Consequently, the rule applies by which a bona, fide transferee for value from an ostensible owner is allowed to protect himself against a claim by the real owner.
There are no such circumstances in this case. The fact that the plaintiff is a bona fide holder for consideration, I do not think, can stand in the way of the defendant successfully pleading that the suit mortgage bond was not supported by consideration and hence no decree could be passed in favour of the plaintiff.
4. In the result, the second appeal fails and is dismissed with costs of the 5th respondent alone.
5. Leave refused.