1. This suit is brought for the possession of premises No. 6, Mussalmanpara. Lane, to which the plaintiff claims to be entitled as nephew and heir to Nobin Chunder Ghose, on the death of his widow Sreemutty Bimola Dassee. She sold the house on the 29th October 1857 to Mutty Lal Mullick from whose hands it has passed into those of the defendant, one of the transfers by which this was brought about having been a Sheriff's sale in execution of a money-decree on 19th August 1880, at which the plaintiff gave all bidders notice of his right to the property on the death of the widow.
2. To this, the defendant pleaded in his original written statement that he was in possession and he called on the plaintiff to prove his title, adding a claim to compensation for improvements that he had made to the premises, if it was found that the plaintiff is entitled to them. He subsequently filed a supplementary written statement in which he stated that the plaintiff was an attesting witness to the kabala of 1857, that he was a consenting party to it, and that all the kindred of the husband of Sreemutty Bimola, who were likely to be interested in defeating the transaction, consented to the sale, which was fair and justified by Hindu law.
3. The plaintiff proved satisfactorily that he was heir to Nobin Chunder, and the kabala of 1857 proves that his widow Sreemutty Bimola conveyed the property to Mutty Lal Mullick. No mention is made in it of legal necessity. Its execution is attested by the plaintiff and his brother, since deceased. On the basis of this attestation, the defendant attempts to set up a case that the sale by Bimola was binding on the plaintiff, and was in fact the act of the whole family who must be taken to have consented to what was done. To this, the answer in point of law is that, as there is no question of necessity, the only way in which Bimola could have transferred an absolute estate was according to the decision in Nobo Kishore Sharma Roy v. Harinath Sharma Roy 10 C. 1102 by a sale with the consent of the next male heir; and this consent she did not obtain, even if we accept an attestation to deed of sale as equivalent to a consent to the sale. In point of fact, I have no hesitation in holding that the attestation of the deed by the plaintiff had no such effect as it is sought to attribute to it. He may have been of age at the time; but he was in fact a mere boy studying at College, and I cannot suppose that he had any idea of the effect of the deed in question. I quite believe him when he says that it was not till he saw the deed recently that he was in fact aware that he had been an attesting witness. Under these circumstances, I hold that no ground of defence can be made out on the ground of consent.
4. The second point made by the defence, though it was not pleaded, is limitation. The point does not arise under the present Act as the plaintiff under Article 140 of Schedule II may bring his suit within 12 years of the widow's death, and no ouster of the widow affects that' right, and it is not suggested that it could have arisen under the Act of 1871, for a like reason. But it is said that, under the Act of 1859, if the widow had been ousted, limitation would have run against the reversioner from the date of her ouster, which there was just time for it to do, before the Act of 1871; and that to make out his title the plaintiff ought to show that she was not ousted. Without going into the finer points of this argument, I do not understand how Bimola could be ousted after she had sold all interest in the property, but if such an event occurred, under the circumstances, it would lie on the defendant to prove it. On this point also, therefore, I hold that the defendant's case fails. The next point which I have to consider is the more substantial one,--whether the defendant is entitled to compensation under Section 51 of the Transfer of Property Act. The facts relating to this are as follows:-The sale by Bimola took place, as I have said, in 1857. The next facts that we have are that the property was sold to Adhar Chunder Ghose at a Sheriff's sale on the 19th August 1880, and that at the sale, the plaintiff put forward his claim as set out in Exhibit B. On the 18th July, Adhar Chunder obtained a pottah in respect of the premises from the Calcutta Collector ate, in which his name was substituted for that of Bimola (Exhibits D and I). By other transfers, the property passed to Dhananjoy Mullick who, by a deed of gift, dated the 28th February 1888, transferred it to the defendants, who, were his sister, his nephew and his nephew's son. The house was rebuilt, in parts at all events, by the defendants, eight or ten years ago. The defendants receiving the house as a gift never made any enquiry into the title of their donor, and there is no evidence that any such enquiry was ever made by any one. On these facts, the plaintiff argues that Section 51 of Transfer of Property Act has no application, because the defendant did not believe in good faith' that he was absolutely entitled to the property, and because as all land in Calcutta is held on a lease from the Crown, no one can be absolutely entitled to it, and no one, therefore, can have a bona-fide belief that he is so entitled. I am of opinion that he must succeed on the first of these points. There is nothing to show that the defendant-acted otherwise than in what is commonly understood as good faith, that is, honestly and fairly. But a belief in good faith must mean something more than this. There seems to be no authority as to what constitutes a belief in good faith under this section; but, I think, the expression must include a due enquiry. A belief must generally imply good faith; but I suppose that where a man has consciously avoided making an enquiry on any matter, he may nevertheless be said to have a belief on that matter and that that belief would in such a case not be a belief in good faith. But, looking at the obvious purpose of the section, this seems to me to attribute an unduly confined scope to the expression, and if it means more than the absence of a conscious avoidance of enquiry, it must imply the necessity for a due enquiry. In this case, it may have been natural enough for the defendant not to enquire into his donor's title; but that is no reason why, against the plaintiff, he should be in a better position than a purchaser; and if he had bought the property, one would certainly expect him to enquire into the circumstances of a Sheriff's sale held eight years before; and had he done this, he would at once have received notice of the plaintiff's claim. Under these circumstances, there is no need for me to determine the second point. But as the matter has been argued before me, I ought perhaps to say that I should be very reluctant to hold that the position of the Crown as landlord of all immovable property in Calcutta, prevents the application of Section 51, though the decisions in Jugmohan Das Vundrawandas v. Pallonjee Eduljee Mohidina 22 Bom. J and Ismail Khan Mahomed v. Jaigun Bibee 4 C.W.N. 210 : 27 C. 570 which show that it does not apply in the case of a lease for 999 years or apparently a permanent lease.
5. I must observe that this case is arguable only under Section 51 of the Transfer of Property Act as there is no evidence that the plaintiff stood by and allowed the defendant to build under a mistake as to his rights.
6. The defendant has failed to make any answer to the plaintiff's case and I give judgment for the plaintiff for possession with costs on scale No. 2. No evidence has been given as to the damages incurred by the plaintiff by the defendant's wrongful possession of the premises, and as this is no doubt a hard case, I give no damages.