M.C. Ghose, J.
1. These are three petitions under Section 115, Civil Procedure Code, by the land-lords in three suits for rent. The facts, in short, are that the tenancies are situated in Taluk Panchananda Dutta in one-third share of the same owned by Krishna Kumar Dutt. The right of Krishna Kumar Dutt was sold in 1910 but he remained in possession and the purchaser in 1913 re-transferred the same to Krishna Kumar's wife Benode Basini. Since then, the estate has been in possession of the family and in 1912 Krishna Kumar mortgaged his one-third share of the taluk to the plaintiffs and obtained a loan on the mortgage. Afterwards, the plaintiffs instituted a mortgage suit against Krishna Kumar and his wife Benode Basini. Benode Basini in her written statement said that she was the owner of the estate and not Krishna Kumar. She died during the suit and her heirs, viz., the sons of Krishna Kumar were expunged from the record as not necessary in a mortgage suit. Mortgage decree was made against Krishna Kumar and his right, title and interest was sold in auction and purchased by the plaintiffs. Thereafter, there were quarrels about possession and the High Court in July 1934, declared that the possession should be given to the plaintiff of the right, title and interest of Krishna Kumar. Thereafter the plaintiff issued notice to tenants that they were the landlords to whom they should henceforth pay the rents. Afterwards, the present suits were instituted against three sets of tenants, The Munsif found that the purchase by Benode Basini was a benami purchase and that the real purchaser was her husband Krishna Kumar but that as the plaintiffs were denying the rights of Benode Basini's sons who had been realising the rents from the tenants, the present suit could not succeed and the plaintiffs must institute another suit making Benode Basini's heirs parties. There were appeals to the Subordinate Judge who agreed with the Munsif and dismissed all the appeals.
2. In this Court it has been urged by Mr. Gupta appearing for the petitioners that on the facts found by the Courts below the plaintiffs are entitled to a decree for they purchased the right, title and interest of Krishna Kumar and it has been found by the Courts that the estate is the property of Krishna Kumar. He purchased it benami in the name of his wife Benode Basini. It was urged by Mr. Hoy, the learned Advocate for the opposite party, that the Subordinate Judge did not find the title in the plaintiffs. He said:
To be successful in their claim the plaintiffs have to establish not only that the subsequent purchase was by the mortgagor in the benami of his wile, but also that the plaintiff can invoke the aid of the principle of feeding the estoppel.
3. As to that, the terms of Section 43 of the Transfer of Property Act are quite clear which run thus:
Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transverse, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
4. It is to be observed that this section is very different from Section 41 where the transferee is under obligation to take reasonable care to ascertain that the transferor had power to make the transfer. There is no such provision in Section 43. The finding in this case is that at the date of the mortgage Krishna Kumar was in possession but had no title. Soon after wards, however, he purchased the title in the benami of his wife. He having purchased the title, at the option of the transferees, viz., the petitioners, the estate became liable to the mortgage and as such it has passed by the mortgage sale to the petitioner.
5. The next point urged by the learned Advocate for the opposite party is that'. the tenants have been bona fide paying the rents to the heirs of Benode Basini and that they will be in a bad position if they are forced to pay rent to the plaintiffs. The reply to this argument is that the tenants were duly given notice by the plaintiff after their possession in 1934 and if the tenants wanted to safeguard their possession, they might have deposited the rent in Court under Section 61 of the Bengal Tenancy Act.
6. The suit was for the rent of a part of 1338, for 1339 and 1340 and for half of 1341. It was found by the trial Court that up to the end of the year 1340, the tenants had bona fide paid the rents to the heirs of Benode Basini. It is not, therefore, equitable that they should again be paying the same rent to the plaintiffs. The plaintiffs, however, will get the rents for half year 1341. To this extent the Rules are made absolute.
7. Parties will bear their own costs in all the Courts.