1. The defendant is the appellant in this suit which was for a declaration of the plaintiff's title to certain land as a reversioner, and for recovery of possession. The suit has been decreed by both the Courts below. The plaintiff's case may be briefly stated as follows. The property in suit was purchased by one Jahuri in the benami of his wife Kalidasi by a kobala dated 4th chaitra 1316 B.S. Thereafter Jahuri died, and his widow Kalidasi sold the property to Indu Bala, defendant 3, who made a gift of it to one Brahmapada. Defendant 1, Chapala, purchased the property from Brahmapada and was in possession thereof. Kalidasi died in November 1933,. which corresponds to Kartic 1340 B.S. and thereafter the plaintiff Shib Chandra Pramanik, who is heir of Jahuri, brought this suit as reversioner. He died pending the suit, and his heirs have been substituted. The plaintiff's case was that the property belonged to Jahuri and that as reversioner he was entitled to the property.
2. The defence taken by Chapala was that the property belonged to Kalidasi, and that it was not a fact that Jahuri purchased it with his own money in the benami of Kalidasi. On this ground Chapala resisted the plaintiff's suit. It seems that in the course of the trial a further ground was taken, namely, that the defendant Chapala could defend her possession and title by invoking the aid of Section 41, T. P. Act. Both the Courts have found that the property was purchased by Jahuri with his own money in the benami of his wife Kalidasi; and this finding is not now challenged. The only point for consideration in this appeal is whether the defendant Chapala can avail herself of the provisions of Section 41, T. P. Act. The lower appellate Court in dealing with this question has said that Chapala cannot raise this defence against a reversioner, and it relies for this view upon the case in Shib Deo Misra v. Ram Prasad 0043/1924 : AIR1925All79 . This is what the learned District Judge says:
It has also been urged that respondent 2 Chapala Bala Dasi was a bona fide purchaser for value and as there is no evidence that she participated in fraud her purchase is good against even Jahuri. When a benamdar sells a benami property for consideration without disclosing the real owner the latter if he remains at the background cannot avoid the alienation without showing that the purchaser was tainted with notice of the benami and has no good faith. This principle can hardly be applied in the present case because though this principle might hold good against Jahuri it cannot hold good against the plaintiff who claims as reversioner. Sloreover, a transferee from a Hindu widow who takes the property from her before the reversioner's right accrued cannot successfully plead a bar of Section 41, T.P. Act: Shib Deo Misra v. Ram Prasad 0043/1924 : AIR1925All79 .
3. This is the ground upon which this plea of Chapala has been dismissed. In my opinion, the learned Judge was entirely wrong in his view, and the case in Shib Deo Misra v. Ram Prasad 0043/1924 : AIR1925All79 upon which he relies has really no application. In that case there was no benami purchase at all, and therefore it was held that Section 41, T. P. Act, had no application. There a person purchased property from a Hindu widow. After the death of the widow the reversioner claimed the property. He was met with the plea that the provisions of Section 41 disentitled him to succeed. Their Lordships held that in such a case Section 41 had no application. They said that even assuming that the purchaser was a bona fide transferee for value who bad taken the property after due enquiry it could not be held that he had taken it from an ostensible owner who was in possession with the consent expressed or implied of the reversioner. They pointed out that Section 41, T. P. Act, would not apply unless there was a real owner and an ostensible owner who was in possession with the consent of the real owner.
4. In the present suit we have the case of a person who is the real owner allowing another to remain in possession of property as ostensible owner, and in my opinion the case clearly attracts the operation of the provisions of Section 41, T. P. Act. The learned advocate for the respondents pointed out that the transfer by Kalidasi took place after the death of the real owner, and he said that in such a case the provisions of Section 41, T. P. Act, would not apply. His argument was that anyone wishing to invoke the aid of Section 41, T. P. Act, must show that the consent of the real owner continued down to the date of the transfer by the ostensible owner, and he drew my attention to the case in Fazal Husain v. Muhammad Kazim ('34) 21 AIR 1984 All 193. In that case one of the arguments advanced was that in order to invoke the aid of Section 41, T. P. Act, not only must it be proved that the ostensible owner was in possession of the property with the consent of the real owner but also that the transfer was made with the consent of the real owner. Their Lordships repelled this contention and held that there was no need to prove that the real owner consented to the transfer and they added that all that it was necessary to prove was that the consent of the true owner to the possession of the property by the ostensible owner continued up to the date of the transfer. They did not mean to lay down any rule that Section 41, T. P. Act, would not operate where the property was sold by the ostensible owner after the death of the real owner, with whose consent the ostensible owner was in possession.
5. In this connexion I would refer to the case in Annada Mohan v. Nilphamari Loan Office Ltd ('21) 8 AIR 1921 Cal 549, a decision which is binding on this Court. In this case a transfer by the ostensible owner took place long after the death of the real owner, and it was held that in such a case Section 41, T. P. Act, could be availed of provided the other elements required by that section were satisfied. I hold therefore that the defendant Chapala would be entitled to invoke the aid of Section 41, T. P. Act, if she is able to satisfy the other conditions laid down in the section even though the transfer to her took place after the death of Jahuri, the real owner. The learned advocate for the respondents further contended that the onus was upon the defendant Chapala to establish that she made reasonable enquiries and took reasonable care to ascertain that the transferor had power to make the transfer and that she acted in good faith. There can be no doubt that the onus is upon the person seeking to invoke the aid of Section 41, T. P. Act, to show that he is a purchaser in good faith without knowledge of the real state of affairs. This question has not been considered at all by the Courts below. It will be for the Court below to decide whether Chapala Bala Dasi did take reasonable care to ascertain that the transferor had power to make the transfer, and that she acted in good faith. I am not prepared to say anything on this point one way or the other. The case will therefore have to go back on remand to the lower appellate Court to decide this question upon the evidence already adduced. If the learned Judge finds on the evidence already on the record that Chapala Bala Dasi purchased the property in good faith after taking reasonable care to ascertain that the transferor had power to make the transfer, then he will dismiss the plaintiff's suit. On the other hand, if he is of opinion that it has not been proved that Chapala Bala Dasi has acted in good faith or that she has taken reasonable care to ascertain whether the transferor had power to make the transfer, he will decree the plaintiff's suit. Costs of this appeal will abide the result.