1. The lands in dispute in this case originally belonged to two ladies. They executed a kobala in favour of one Anandamoyee, the wife of one Krishna Nath Ghose, in January, 1898 Shortly after Krishna Nath died leaving Anandamoyee his widow and a daughter Rohini, who is no party to the suit.
2. The plaintiffs, who are the respondents before us, took a mortgage of the lands in dispute from Anandamoyee, the widow of Kristo Nath Ghose, and their daughter Rohini Dassi, on the 23rd June 1902, and at a sale held in execution of the decree obtained upon the mortgage purchased them on the 6th November 1913. In the meantime the lands were attached in execution of a money-decree at the instance of a creditor of Kristo Nath. Anandamoyee preferred, a claim on the ground that it was her stridhan property, which however, was disallowed. The lands were accordingly sold in execution of the money-decree and purchased by the defendant No. 1 on the 5th June 1905. He obtained possession of the lands and continued in possession. The plaintiffs having purchased the lands in execution of their mortgage decree, were resisted in taking possession by the defendant No. 1. This suit was accordingly brought by the plaintiffs for a declaration that the lands belonged to Anandamoyee, and for possession of the same. Subsequently the plaintiffs applied for amendment of the plaint to the effect that if the lands were found to belong to Kristo Nath and not to Anandamoyee, the latter had legal necessity to mortgage the lands.
3. The Court of first instance found that the lands were purchased by Kristo Nath with his own money in the benami of Anandamoyee, that the money was raised by her upon the mortgage for legal necessity, and as the defendant No. 1 was not made a party to the suit brought by the plaintiffs on the mortgage, that Court gave a decree to the plaintiffs for possession subject to the right of the defendant No 1 to redeem the mortgage.
4. On appeal the learned District Judge agreed with the Court of First instance in holding that the lands were purchased by Kristo Nath in the benami of his wife, Anandamoyee, but he was of opinion that the defendant NO. 1 was estopped from denying that the lands belonged to Anandamoyee, and accordingly reversed the decree of the Court of first instance, and gave a decree to the plaintiffs for possession of the lands. The defendant No. 1 has appealed to this Court.
5. The first question for consideration is whether the defendant No. 1 was estopped from disputing the absolute title of Anandamoyee to the lands. The ground upon which the learned District Judge found the question of estoppel in favour of the plaintiffs was that Krishna Nath, by purchasing the property in the name of his wife, had put her forward as the ostensible owner with an intention to deceive any person who had a claim to his estate, and the plaintiff lent the money on mortgage on the strength of the kobala which stood in her name, the defendant No. 1 as the successor in interest of Kristo Nath was estopped from denying that the property was the stridhan property of Anandamoyee. The learned Judge relied upon the case of Luchmun Chunder Geer Gossain v. Kalli Churn Singh 19 W.R. 292 at p. 296 : 4 Sar. P.C.J. 802 (P.C.) in support of the view taken by him.
6. The question is whether the learned Judge was right in the view he took of the case.
7. We think that the case falls within the principle enunciated by the Judicial Committee in the case of Luchmun Chunder Geer Gossain v. Kalli Churn Singh 19 W.R. 292 at p. 296 : 4 Sar. P.C.J. 802 (P.C.). There the property was purchased by the father in the name of the mother and their Lordships observed:
That was a misrepresentation of the father by means of which the widow after his death was enabled to sell the property. It was said that the minor would not be bound by the acts of the father before his death, Suppose the father had actually sold this property to the mother, and had made a misrepresentation by a deed of sale, would not the minor son have been bound by that deed, although the father might have had same secret understanding with the mother that it was purchased in her name benami for the father? It appears to their Lordships that there was a misrepresentation by the father in allowing the property to be taken by the wife under a deed of sale, representing that the purchase money was her stridhan, and in all his acts, both public and private, during his lifetime, representing that the property was his wife's. After that representation on the part of the father, his heirs were no more entitled to recover than the father would have in his lifetime. The heirs were as much bound by the misrepresentation made by the father, as the father would have been if the wife in his lifetime had actually sold the property to a bona fide purchaser. In such case the father could not have recovered the property from the purchaser; and it appears to their Lordships that the minor claiming by descent from the father is equally bound by those misrepresentations, and that he cannot, as heir to the father, sat up that that property belonged to the father, when the father could not in his own lifetime, under similar circumstances, have set up that the property belonged to him.
8. This case was considered in the case of Sarat Chunder Dey v. Gopal Chunder Laha 20 C. 296 : 19 I.A. 203 : 6 Sar. F.C.J. 224 : 10 Ind. Dec. (N.S.) 201. In that case, their Lordships observed at page 305: 'In the case of Luchmun Chunder Geer Gossain v. Kalli Churn Singh 19 W.R. 292 at p. 296 : 4 Sar. P.C.J. 802 (P.C.) a similar state of facts occurred, for there, as here, the mortgage was granted by the widow after her husband's death. But in that case the husband, Ubotar Singh, had never himself held the title to the property there in question in his own name. The title was derived from a third party and taken directly to his wife, and, according to the narrative of the conveyance, the price was paid from her stridhan fund. He was never in possession of it. His wife took possession and retained it, and, as stated by the High Court in their judgment in the present; case, by a long series of public acts and declarations, he did all he could to cause his wife to bear towards the public the character of owner. There were thus continuous declarations and acts by the husband calculated to cause any person dealing with the widow to believe that she was and had been the proprietor in her own right and in possession of the property purchased.'
9. In the present case, as in Luchmun Chunder's case 19 W.R. 292 at p. 296 : 4 Sar. P.C.J. 802 (P.C.), Krishna Nath, the husband of Anandamoyee, had never himself held title to the property in his own name. The title was derived from a third party and taken directly to his wife.
10. It was contended before us that in Luchmun Chunder's case 19 W.R. 292 at p. 296 : 4 Sar. P.C.J. 802 (P.C.) the Judicial Committee relied not only upon the fact that the kobala was taken in the name of the wife, but also upon the fact that there were continuous declarations by the husband that the property belonged to the wife. In the present case there was no mutation of names, but the property here was lakheraj, and there could be no mutation of names either in the Collectorate or in the Zemindar's Sherista. The kabuliyats, toujis, and counterfoil rent receipts stood in her name, and it does not appear that there was any occasion for Kristo Nath's making any other declarations that the property belonged to Anandamoyee. But the case does not rest merely upon the facts stated above.
11. The case was remanded for a finding upon the question whether the plaintiffs in this case, when they took the mortgage, did so in good faith without any notice (actual or constructive) of the title of Kristo Nath to the property. Actual notice the plaintiffs admittedly had none. The learned judge has, no doubt, held that they had constructive notice; but in the first place, he has misconstrued the document upon which he relies in support of his finding; and secondly, the facts found do not justify the inference that there was constructive notice. He finds that an officer of tire plaintiff Loan Office went to the village, looked at the kobala and other papers, namely, certain kabuliyats, toujis and rent receipt counterfoils and found that they were given in Anandamoyee's name, The learned Judge, however, was of opinion that the kobala shows that Anandamoyee's husband paid part of the price of the property, about Rs. 250-7 which the vendor owed him at the time. That clearly is based upon a misconstruction of the kobala. The kobala states that the price of the property was fixed at Rs. 1,500 out of which Rs. 518 12 which was due to one Mahammad Nafatulla was to be paid by the vendee, that, out of the balance, viz., Rs. 981-4, which was received through her husband, Kristo Nath, Rs. 250-7 was paid to him (Krishna Nath) in satisfaction of the debt due under his decree and that the balance Rs. 730 13 was received by the vendor in cash. This does not show that Anandamoyee's husband paid part of the consideration for the kobala.
12. Then, the learned Judge points out that Krishna Nath had previously purchased a share in the property, and the learned Judge says that the plaintiff Loan Office should have inquired into Krishna Nath's financial position at the time when the purchase was made in the name of his wife.
13. We do not see, however, why it was necessary for the mortgagees to inquire into the financial position of Krishna Nath. We do not think that the facts found lead to the inference that the plaintiffs had constructive notice of the title of Kristo Nath.
14. Kristo Nath purchased the property in the name of his wife directly from a third party, he himself acting as the agent of the wife in the transaction; and so far as there were occasions for doing no, he held her out as the real owner. The learned Judge finds that the plaintiffs made enquiries, though he was in error in holding that plaintiffs should have enquired into the financial position of Kristo Nath. We think that, in these circumstances, the defendant, who is the successor in interest of Kristo Nath, should not be allowed to defeat the right of the plaintiffs, who are transferees in good faith from the ostensible owner Anandamoyee without notice of Kristo Nath's title. As stated above, we are of opinion that upon the facts found the learned Judge is not right in holding that the plaintiff company had constructive notice of the title of Kristo Nath.
15. In the result, the appeal is dismissed with costs.