(1) S. A. NO. 1389 of 1960 related to a suit filed in the City Civil Court by a certain Visalakshi Ammal (plaintiff) for a declaration that she was the absolute owner of the superstructure in premises comprising door No. 21 Broadies Road, Mylapore. The suit was decreed by the learned Assistant Judge, who gave a finding that the plaintiff was the owner of the mortgaged property in controversy, and also a consequential declaration that the mortgage executed by Maduraimuthu Naicker, husband of the plaintiff, would not bind the plaintiff with regard to her interest in the property, i.e., the proprietary interest in the superstructure. The first defendant-mortgagee preferred a first appeal to the Principal Judge of the City Civil Court. That court confirmed the findings of the trial court, and dismissed the appeal.
(2) The first defendant-mortgagee thereupon instituted S. A. No. 1339 of 1960, which came up for hearing and disposal before Venkatadri J. The learned Judge went into the evidence, upon which the concurrent findings of fact of the courts below were based. He then furnished his dissenting conclusion on the main issue of fact in the following form:
'There is sufficient material to come to the conclusion that the suit property might have belonged to both the husband and the wife. It might have been that Visalakshi Ammal might have construed the superstructure partly from out of her funds. There is no evidence to show that he entire superstructure was built by Visalakshi Ammal. In the circumstances, I declare that he property belongs both to Maduraimuthu Naicker and Visalakshi Ammal.'
(3) There was a further contention raised on behalf of the appellant (mortgagee) before the learned Judge that, in any event, the appellant was entitled to the benefit of the equity enacted as S. 41 of the Transfer of Property Act. The learned Judge (Venkatadri J.) cited a passage from Sethumadhava Aiyar v. Bacha Bibi : AIR1928Mad778 and came to the conclusion that the mortgagee was entitled to this benefit, in any view. Ultimately, he reversed the findings of the courts below, and held that both the plaintiff (Visalakshi Ammal) and her husband were the owners, but that the mortgagee would be entitled to work out of his remedies only against the right, title and interest of the husband, Marudamuthu Naicker. Both parties have preferred the appeals, under the Letters Patent, which are now before us.
(4) We might immediately set forth, quite tersely, the questions that now arise for our determination. Firstly, there is the question whether, in second appeal, this court could interfere with a concurrent finding of fact by two courts below, where no question of law is involved, and where it is not established that there is some failure to consider essential evidence, or some infirmity or defect in the procedure, which would amount to a question of law. Secondly, there is the problem whether, in the merits of the evidence the learned Judge (Venkatadri J.) had justification, even assuming that there could be interference in second appeal, for differing form the courts below, and arriving at the conclusion of fact which he has actually reached. Thirdly, there is the question, whether the equity embodied in S. 41 of the Transfer of Property Act cold at all be invoked by the appellant before the learned Judge, the mortgagee, in the light of the established facts.
(5) We shall take up the second of these questions first, because it seems to us that there were very powerful reasons for the courts below to hold, on the merits, that the superstructure was the exclusive property of the plaintiff (Visalakshi Ammal), and that she had fully succeeded in establishing that claim. Indisputably, the site itself is leasehold, and the ownership vested in a devastanam (Sri Kapaleeswarar temple). There was a prior lease in favour of a third party, and, in September 1936, Maduraimuthu Naicker, the husband of the plaintiff, took the site on lease. There is no controversy concerning the leasehold interest in the site possessed by Maduraimuthu Naicker. But the case of the plaintiff (Visalakshi Ammal) was that it was she who erected the superstructure, form out of her own funds, that her husband had no concern with this construction, that his moneys did not contribute to it in any manner, and that he was not an owner of the superstructure to any degree or extent. The trial court discussed the evidence at considerable length and laid stress on those aspects of evidence which went far, in its view, to prove the claim of the plaintiff. We do not think it is necessary to reiterate these aspects in detail. It is sufficient for us to emphasise a few facts. There was voluminous documentary evidence adduced by the plaintiff, according to the court of trial, in support of her case. The plaintiff dealt with the superstructure by way of mortgages in 1945 and 1946, and that certainly shows that she exercised acts of dominion over this property; on the evidence, it was clear that she had stridhanam funds, and there was a great deal of evidence to show that the construction was probably form her assets. The plaintiff entered into an agreement with the Corporation of Madras for a part of the construction, comprising a flush-out latrine. The Municipal authorities had recognised her as the owner of the premises. On this aspect, it is sufficient for us to state that both the trial court and the first appellate court have rightly laid emphasis on the municipal registry in favour of the plaintiff, viz., Exs. A. 5 and A. 6, for the periods 1945-46 and 1952-53. There were also municipal tax receipts produced by the plaintiff.
(6) In the fact of this evidence--and we are now limiting the discussion to the question of the superstructure--the defendant relied purely upon the fact that Maduraimuthu Naicker also might have possessed funds, at least according to a view adumbrated by the first appellate court, and the fact that Maduraimuthu Naicker applied for the building permit (Dx. D. 1 dated 15-8-1938), which document further indicated that permission was granted in his name. In addition to this, there were only certain receipts for municipal tax paid, produced by Maduraimuthu Naicker, which did not bear the name of the person paying the taxes. The courts below referred to this aspect. They point out that, at a certain stage, quarrels arose between the husband and wife, and that Maduraimuthu Naicker might have obtained possession of those receipts which were originally in the possession of plaintiff. The mere fact that, at one stage, the husband applied for permission to erect a construction, was no safe guide for an inference that the construction belonged to the husband, or, that his moneys contributed to it. On the contrary, the courts heavily stressed the other probabilities and circumstances supporting the claim of the plaintiff (Visalakshi Ammal) that she alone had erected the superstructure. Ultimately, the trial court and the first appellate court concurred in the finding that the superstructure was exclusively the property of the wife, erected form her funds. We may add that there were two mortgages of the property, and that the second mortgage was taken by the defendant (mortgagee) after Visalakshi Ammal had actually issued a notice, advancing her claim to the superstructure.
(7) It is in the light of these facts that we have to regard the conclusion of the learned Judge (Venkatadri J.) that the husband also probably contributed to the superstructure, and that the superstructure must be held to be the property of both. We have already indicated the very heavy evidence in favour of the claim of the wife, relied on by both the courts below. Under those circumstances, we are unable with great respect to agree with the learned Judge (Venkatadri J.) in his view that there was sufficient material to come to a conclusion that the suit property might have belonged to both the husband and the wife'. On the contrary, the evidence, as it stands, seems to support only one inference or conclusion that the suit property, viz., the superstructure, was built by Visalakshi Ammal from her resources, and that it exclusively belonged to her. An opposite inference cannot be rested merely upon the fact that the husband applied for the building permit, or that he is able to produce one or two receipts which do not contain the name of the person making the contribution. Learned counsel for the mortgagee has not been able to show an iota of evidence which would take away from the force of the Municipal registry in favour of the wife, which covers a substantial part of the period since the erection of the superstructure.
(8) Even otherwise, it is very doubtful if this court could, in second appeal, reverse such a concurrent finding of fact, except for the clearest and strongest of reasons, which could be held to be tantamount to interference on a question of law. It is sufficient to refer to the following authorities of the Supreme Court in support of this proposition. In Pattabhiramaswami v. Hanumayya, AIR 1959 SC 57 their Lordships observed, citing with approval an observation of the Judicial Committee in 1891, that, upon an exclusive question of fact, even though erroneous, the High Court would have no jurisdiction even to entertain a second appeal. They referred to a long catena of decisions affirming the same principle, and emphasised that, if he question to be decided was one of fact, the High Courts could not convert themselves in the courts of first appeal, and assume or exercise a jurisdiction which they did not possess. There are two other decisions of Supreme Court which have to be referred to in this context. Viz., Ramachandra v. Ramalingam, : 3SCR604 and Ramappa v. Bojjappa, : 2SCR673 . The second of these decisions emphasises that, though the admissibility of certain evidence may be a point of law, once it was shown that admissible and relevant evidence had been acted upon by the courts below, it was not open to an aggrieved party in second appeal to contend that the evidence was not sufficient to justify the finding of fact. The decision in : 3SCR604 also stresses that, unless there is a total absence of evidence or some other infirmity which will show that there has been a substantial defect or error in the finding, the High Court would not be justified in interfering in second appeal. Hence, we have no hesitation in coming to the conclusion that this was not a case in which this court would even have jurisdiction to reverse the main finding of fact, concurrently arrived at by the court of trial and by the court of first appeal. Not can we be satisfied, on the actual material adduced that the reversal of that concurrent finding was justified. We fell constrained, therefore, to differ form the learned Judge, and to hold that it has been unambiguously that the leasehold interest alone inhered in the husband. Maduraimuthu Naicker, and that the wife (Visalakshi Ammal) was the exclusive owner of the superstructure.
(9) One other question that arises for determination is whether, under the circumstances of the two mortgages in favour of the defendant, or at least the first of them, which was entered into before the wife issued her notice of protest, the transferee could invoke the benefit of the equity embodied in S. 41 of Transfer of Property Act. The learned Judge (Venkatadri J.) held that he could do so because, as the learned Judge points out, the mortgagee appears to have made some kind of bona fide enquiry, within the scope of the observations in AIR 1928 Mad 778.
(10) We are afraid that this overlooks one vital aspect of the equity embodied in S. 41 of the Transfer of Property Act. That section has been cited and expounded in numerous decisions, and it is unnecessary, for our present purpose, to refer to the case-law at any length. But, as will be clear form one, of the leading decisions enunciating the principle of the equity, viz., the Bench decision in Sahul Hamid v. S. N. Sulthan : AIR1947Mad287 there are really two conditions to be fulfilled before the benefit could be invoked. The transferee must first prove that the transferor was the ostensible owner of the property and that such ostensible owner was holding the property, with the consent, express or implied, of the real owner. The second condition or term is that the transferee paid the consideration and acted in good faith, after an enquiry conducted with due diligence, or reasonable care. It is not enough that a transferee, however bona fide, takes the property in good faith, if the real owner is not standing by, acquiescing, expressly or by implication, in an ostensible owner holding out the title. In the present case as far as the superstructure is concerned, there is no ostensible ownership leasehold interest, no doubt, belonged to the husband; but we are not aware of any principle of law that a lessee must be presumed to have built the superstructure upon a land comprised in the lease, and that no one else should be thought to have done so. There was document of title which Maduraimuthu Naicker could put forward, or did put forward, as for the single document giving him permission to build. Obviously, that is not a document of title to the superstructure; at best, it is only evidence of an intention on the part of the husband (Maduraimuthu Naicker) to built on the demised land. In the absence of any ostensible ownership, inhering in the husband, the question of the equity hardly arises. Again, it cannot even he said that the transferee (mortgagee) had made due enquiry or exhibited the required diligence. Any alienee, under such circumstances, would have first ascertained the facts of the Municipal registry regarding the superstructure, before making a loan on the security of both the leasehold land and the superstructure thereon. The registry was indisputably in favour of the wife.
(11) Learned counsel has drawn our attention to a decision of a single judge of this court, viz., Fakruddin Sahib v. Ramayya Setti, 1944 1 MLJ 125: AIR 1944 Mad 299. That was a judgement of Somayya J. In which the learned Judge held that the transferee would be protected under S. 41, even if the real owner had, prior to the transfer, unsuccessfully attempted to assert his exclusive rights to the property, in certain criminal proceedings. But, when we look at the facts of that case, we see that is clearly distinguishable, and, indeed, that is has little relevance to the present context. That was a case in which a certain Bhandigi Sahib was the ostensible owner, by virtue of an actual document of sale in his favour from the previous owner. Not merely this; but the ostensible owner also executed a mortgage in favour of a third party, and exercised a mortgage dominion. Under those circumstances, the alter transferee, a certain Katta Ramayya Setti, had every reason to honestly believe that the ostensible owner was the real owner. The learned Judge then referred to certain prior criminal proceedings, when the real owner had attempted to controvert the claims of the ostensible owner; and held that those proceedings did not disentitle the transferee to the benefits of S. 41. The statute itself is very clear, regarding the requirements to be satisfied before the equity could be invoked by a transferee. We are unable to see that this decision, 1944 1 MLJ 125 : AIR 1944 Mad 299 lays down any different principle, and, actually, we are not at all clear that this decision would be authority for the view that, under all conceivable circumstances, where the real owner had previously controverted the claim of the ostensible owner, the real owner would, nevertheless, be later disentitled to advance his rights, if the ostensible owner subsequently acts upon his ostensible title. We do not think it is necessary to discuss that aspect further.
(12) In the result, therefore, we are constrained to allow the appeal by the plaintiff in the trial court, to hold that she is the exclusive owner of the superstructure, and that her rights will be unaffected by the rights of the mortgagee. The mortgagee (the other appellant) will therefore have rights in respect of his mortgage only over the lease hold interest possessed by the mortgagor in the land itself. The appeal by the mortgagee is therefore dismissed, and the appeal by the plaintiff allowed. But, we direct the parties to bear their own costs throughout, in view of the facts of the history of this litigation.
(13) Appeal allowed.