1. This is an appeal preferred against the Decree and Judgment of the learned Subordinate Judge of Coimbatore in Appeal Suit No. 41 of 1953 modifying the Decree and Judgment of the learned District Munsif of Tiruppur in Original Suit No. 249 of 1951.
2. The suit property originally belonged to Begavathiakkal. She sold the property to Marappa Goundan under Exhibit A-2. Subsequently, she executed a mortgage to Marappa Goundan including the Exhibit A-2 item also. Later on, she sold the mortgaged property to Rangappa Goundan under Exhibit B-1. Therefore, both Marappa Goundan and Rangappa Goundan have been competing for the title in respect of the Exhibit A-2 property. Both the Courts held in favour of Marappa Goundan and hence this Second Appeal.
3. The contention of Rangappa Goundan, based upon a decision of the Judicial Committee of the Privy Council in Sarat Chuiider Dey v. Gopal Chunder Laha (1892) L.R. 19 I.A, 203 : I.L.R. 20 Cal 296 and the decision of the Patna High Court in Mahanth S.N. Gir v. Jugeshwar ILR(1949) Patna 519, is that Marappa Goundan is precluded from asserting title on account of the bar of estoppel. Those decisions laid down on the facts of those cases that the main question to be decided under Section 115 of the Indian Evidence Act is whether the representation has caused the person to whom it has been made to act on the faith of it and that existence of estoppel does not depend on the motive or on the knowledge of the matter on the part of the person making the representation and that it is not essential that the intention of the person whose declaration, act or omission has induced another to act, or to abstain from acting, should have been fraudulent, or that he should not have been under a mistake or misapprehension. On this foot, it was contended that though it may be that Marappa Goundan on account of a mistake allowed the property to be included in Exhibit A-3, that will not avail him to meet the plea of estoppel of Rangappa Goundan who claims to be a bona fide purchaser for value.
4. But it was contended on the other side and which contention has been accepted by both the Courts on the foot of a decision of this Court in Parvathathammal v. Sivasankara Bhattar : AIR1952Mad265 , that if Rangappa Goundan had abstained from making the further enquiries about the rights of the person in actual possession, that abstention must be attributed to gross negligence and even considered to be wilful abstention and that, therefore, he must be held to have had notice of the agreement to sell in favour of the plaintiff.
5. In this case, this Rangappa had admitted that he knew that Marappa Goundan was in possession of the property. This Rangappa says that he thought that Marappa was in possession as a possessory mortgagee. He made no further enquiries admittedly. He did not have a search made in the office of the Sub-Registrar to ascertain if there was any other encumbrance regarding this item, or any other transaction evidenced by a registered document. If he had done that, he would have immediately known of the existence of Exhibit A-2. So, his omission in not having done that must be held to be wilful, or as grossly negligent, and in that view Rangappa Goundan cannot claim any right to redeem this item.
6. The net result of this analysis is that the conclusion of both the Courts that the appeal item is not liable to be redeemed in Original Suit No. 249 of 1951 is correct.
7. Before parting with this case, I have to deal with another point, viz., disturbance by the lower appellate Court of the Costs awarded by the learned District Munsif. The order of the District Munsif regarding costs could not be upheld by the learned Subordinate Judge by reason of Section 35(2), Civil Procedure Code which lays down that where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing. Though awarding of costs shall be in the discretion of the Court, such discretion must be a judicial discretion to be exercised on legal principles, not by chance, nor by medley nor by caprice nor in temper. The learned Subordinate Judge has given sound reasons for making costs follow the event. Therefore, the order of the learned Subordinate Judge merits no interference.
8. In the result, the Second Appeal has got to be and is hereby dismissed and in the circumstances without costs.
9. No leave.