1. The judgment of the District Judge in this case is unsatisfactory. The plaintiff claimed the property as her own and alleged that the 1st defendant took possession under a mortgage executed by the 2nd defendant, plaintiff's father, to the 1st defendant and that the 2nd defendant was not the owner and had no title to execute any mortgage. (The 1st defendant, in his defence, did not claim any title to the property under the mortgage executed by the 2nd defendant and contended that he had thrown up the mortgage and never took possession and was not, therefore, liable to the plaintiff for any damages. The District Munsif found that the 1st defendant took possession and awarded mesne profits for three years prior to the suit and one year afterwards.
2. On appeal, the District Judge has decided the case apparently on the question of title. HE does not find that the 1st defendant was not in possession of the land. He says that according to Bai Motivahoo v. Purushotam Dayal 6 Bom. L.R. 975 the purchase of property by a husband in his wife's name is to be regarded as benami for himself and that the same presumption would apply in Southern India. He does not find, as a fact, that the purchase-money was supplied by the 2nd defendant. The Judge observes generally that 'other documents seem to indicate that the property belongs to the 2nd defendant.' He has not discussed the evidence or recorded a specific finding that the land belongs to the 2nd defendant. Seeing that the 1st defendant did not claim any title in himself under the mortgage, if the plaintiff was in possession of the property and the 1st defendant took possession, that would be sufficient to entitle the plaintiff to recover damages against him. If the plaintiff was not in possession when 1st defendant entered on possession, the plaintiff would still be entitled to recover damages if she was the owner. We are unable to understand the District Judge's award of 8 annas damages. It is impossible to see on what principle he has proceeded. He apparently allows nominal damages. But if, as he seems to think, the plaintiff was not the owner, it is not easy to see on what ground she is entitled to any damages at all.
3. There must be a finding on the question, how long the 1st defendant was in possession and what mesne profits are payable for that period? We reverse the decree of the District Judge and remand the appeal for fresh disposal according to law. If a decision on the question of title becomes material, both parties should be allowed to adduce evidence in respect of it. The costs of this second appeal will abide the result.