Ashutosh Mookerjee, J.
1. The subject-matter of this litigation is village Barmesha, which admittedly formed at one time part of the Estate of Bharat Majhi. On the 20th August 1875, Bharat executed a conveyance of the tenure in favour of his nephew Ramdhan, a son of his brother, Jogeshur. This conveyance, as has been found by the Courts below, was not intended to be a real transaction, and, during his life-time, Bharat retained possession of the conveyance; as also of the property. Ramdhan never set up any claim to the property during the life-time of Bharat, and in 1887, actually joined his uncle in a mortgage transaction, in which Bharat gave the property as security on the assertion that he was the owner thereof. Bharat died in October 1888 and left behind him a widow and an infant son Joyram, the plaintiff in this litigation. Upon the death of Bharat, his widow appointed Ramdhan to manage the disputed property, and it has been found concurrently by the Courts below that Ramdhan collected the rent as such agent from the under-tenants up to 1894, when he repudiated his position as agent and asserted a hostile title In the interval, however, in 1890, Ramdhan had secretly mortgaged the property to stranger on the allegation that he was entitled to it, and in 1891, he instituted suits for rent against tenants and obtained decrees in his own name. These fraudulent acts were secretly done without the knowledge of the widow of Bharat, and it was not till 1894 that there was an open assertion of a hostile title by Ramdhan. The receipts granted by the superior landlords to Ramdhan on account of payment of putni rent show that, as late as 1892, Ramdhan was described as Karmachari, Gomostha or Sarbarakar, each of which terms plainly indicates that Ramdhan at that stage proposed to represent the real owner, the infant son of Bharat. In 1900, the mortgagees, who had accepted the security from Ramdhan in 1890, took active proceedings to realise their dues. The result was that on the 17th January 1901, Ramdhan and his brother Baburam executed a conveyance of the disputed property in favour of the first defendant. On the 26th August 1901, the first defendant got his name recorded in the books of the landlord. The plaintiff attained majority shortly afterwards, and, on the 18th April 1907, commenced the present suit for declaration of title and for recovery of possession and mesne profits. The first defendant alone substantially defended the suit along with his brothers who were subsequently brought on the record they denied the title of the plaintiff and contended that even if the transfer by Bharat in favour of Ramdhan on the 20th August 1875 was established to have been fictitious, the plaintiff was barred by the doctrine of estoppel and could not be permitted to assert his title against a bona fide purchaser for value without notice. The Courts below have overruled all the objections urged by the defendants and have decreed the suit. In the present appeal, it has been argued on behalf of the first defendant and his brothers, on the authority of the decision of the Judicial Committee in Ramcoomar Koondoo v. McQueen 18 W.R. 166 : 11 B.L.R. 46 : I.A. Sup. Vol. 40 that the plaintiff cannot be permitted to assert his title, though it has been found concurrently by the Courts below that the vendors defendants had no title to convey to the appellants. The question of estoppel thus-raised has been presented from distinct standpoints; but before we proceed to examine the question in its different bearings, it is necessary to point, out that the District Judge has not pronounced any opinion upon an important matter considered by the Court of first instance, viz., whether the first defendant, at the time of the purchase, obtained from his vendors the title-deeds of the property, viz., the original putni lease and the conveyance by Bharat in favour of Ramdhan. The Subordinate Judge found that the story of the defendants that they had obtained delivery of the title-deeds at the time of their purchase and had subsequently lost them, was unworthy of credence; he found in substance that the title-deeds were all along with the plaintiff, and the defendants never obtained them from their vendors. As already stated, there is no finding on this point in the judgment of the District Judge; whether this is due to the fact feat the point was not pressed before him, as the respondent suggests, or, because its importance was not fully appreciated, as is suggested by the appellants, it is not easy to determine. But this much is clear that if the District Judge had expressly affirmed the finding of the Subordinate Judge upon this part of the case, all difficulty in connection with the question of estoppel would have disappeared. The defendants as purchasers were bound to obtain production, and if possible, possession of the title-deeds, and if they failed to do so, there negligence deprived them of the protection extended by a Court of Equity to a bona fide purchaser for value without notice. Colyer v. Finch (1856) 5 H.L.C. 905 : 26 L.J. Ch. 65 : 3 Jur. (N.S.) 25; Agra Bank v. Barry (1874) 7 H.L. 135 at p. 157; Oliver v. Hinton (1899) 2 Ch. 583 : 48 W.R. 3 : 81 L.T. 212 : 15 T.L.R. 450; Berwick and Co. v. Price (1905) 1 Ch. 632 : 74 L.J. Ch. 249 : 92 L.T. 110. As however, there is no finding by the District Judge upon this question, we cannot negative the plea of estoppel on the ground of wilful or negligent abstention of the purchasers to call for the title-deeds. We must proceed to examine the question of estoppel as argued by the appellants and respondent, and, if our decision should be adverse to the latter, a remand would be necessary for the determination of the question of fact just mentioned.
2. On behalf of the appellants, it has been broadly contended that as they have purchased in good faith from a person, who was allowed by the father of the plaintiff to hold himself out as the beneficial owner, the plaintiff is not entitled to overthrow the purchaser from the apparent owner, by proof of his secret title. The rule by which a transferee from an ostensible owner is allowed to protect himself against a claim by the real owner is embodied in Section 41 of the Transfer of Property Act, and has been repeatedly recognised by the Judicial Committee and the House of Lords Ramcoomar Koondoo v. McQueen 18 W.R. 166 : 11 B.L.R. 46 : I.A. Sup. Vol. 40; Mahomed Mozuffar Hossein v. Kishori Mohan Roy 22 I.A. 129 : 22 C. 909; Varden Seth Sam v. Luckpathy Royjee Lallah 9 M.I.A. 303 : Marsh 461; Colonial Bank v. Cady 15 App. Cas. 267 : 60 L.J. Ch. 131 : 63 L.T.27 : 39 W.R. 17; Caircross v. Lorimer 3 Macq.H.L. 827 : 7 Jur. Jur. (N.S.) 149 : 3 L.T. 130. The respondent has not disputed the soundness of the rule that where, with the consent, express or implied, of a person interested in immoveable property, another person is the ostensible owner of such property and transfers the same for consideration, the transfer is not voidable on the ground that the transferor had not authority to make it, if the transferee has acted in good faith after taking reasonable care to ascertain that the transferor had power to make the transfer. But it has been argued that this doctrine has no application to the circumstances of the present case, first, because there can be no estoppel against an infant, secondly, because, even if there may be an estoppel against an infant, such estoppel cannot be created by the conduct of his guardian, or of another person, and thirdly, because no estoppel can arise where, as here, the ostensible title is created by one person, and the estoppel is sought to be raised by reason of events subsequent, due to the conduct of a person other than the true owner or his representative-in-interest.
3. In so far as the first of these contentions is concerned, viz., that there can never bean estoppel against an infant, we are of opinion that the proposition is too broadly formulated. The decision in Sreemutty Mohun Bibi v. Saral Chand Mittar 2 C.W.N. 18 indicates that the statement requires qualification in cases of fraud. See also the decision in Dhurmadas Ghosh v. Brahmo Dutt 2 C.W.N. 330 : 25 C. 616; Brohmo Dutt v. Dharmo Das Ghose 26 C. 381 : 3 C.W.N. 468; Mohori v. Dharmodas 30 C. 539 : 5 Bom. L.R. 421 : 7 C.W.N. 411 : 30 I.A. 114 (P.C.) and Sarat v. Rajoni Ghose 12 C.W.N. 481. As Lord Cowper said in Watts v. Creswell (1714) 2 Bq. Ca. Abr. 516 if an infant is old and cunning enough to contrive and carry on a fraud, he ought to make satisfaction for it. Lempriere v. Lange (1879) 12 Ch. D. 675 : 41 L.T. 378 : 27 W.R. 879. A similar view is supported by well known text-writers (Bigelow on Estoppel, page 602; and Herman on Estoppel, Volume 2, Sections 1116-1121). The cases on the subject, however, specially in England, are difficult to reconcile and Babman v. Kingston (1880) L.R. 6 Ir. 328; Bartlett v. Wells (1862) 1 B. & S. 836 : 31 L.J.Q.B. 43 : 8 Jur. (N.S.) 762 : 5 L.T. 607 : 10 W.R. 229 may possibly support the view that an estoppel does not arise against the infant, whereas, Exp. Unity Joint Stock M. B. Association (1858) 3 De. G. & J. 63 : 27 L. J. Bk. 33 : 4 Jur. (N.s) 1257 : 6 W.R. 640, Overton v. Bannister (1844) 3 Hare 503 : 8 Jur. 906 and Cornwall v. Hawkins (1872) 41 L.J. Ch. 435 : 26 L.T. 607 : 20 W.R. 653 may perhaps, be relied upon in support of the view that a false representation by an infant may create an estoppel against him. See also Laws of England by Lord Halsbury, Volume 13, Section 537, note (S) and Section 560, note (O). But it is not necessary to pursue the subject further or to decide for the purposes of this case whether, in a case of fraudulent, representation, an infant may be bound by estoppel, because it is plain in the case before us, that there was no representation by the infant himself. The first reason assigned by the respondent is thus not sufficient to negative the plea of estoppel urged by the appellant.
4. In so far as the second ground is concerned, it has been urged that an infant cannot be estopped by the acts or admissions of other persons. The contention in substance is that even if it be assumed that by the negligence or carelessness of the mother of the plaintiff, the second defendant Ramdhan obtained possession of the property and of the title-deeds and thus became able to defraud a bona fide purchaser, the infant cannot be estopped. There is considerable force in this contention. As a general rule, the doctrine of estoppel is not applicable to an infant, and the Court is never, astute to hold that his acts during infancy have created an estoppel against him to disaffirm his contracts; Milner v. Harewood (1811) 18 Ves. 259 : at p. 274; Mills v. Fox (1887) 37 Ch. D. 153 : 57 L.J. Ch. 56 : 57 L.T. 792 : 36 W.R. 219; Butler W. Starts (1884) 25 Ky. L.R. 1886 : 79 S.W. 204; much less will the Court hold the infant estopped by the acts or admissions of other persons. This is well illustrated by the case of Clarke v. Guddard (1863) 37 Alabama 164 : 84 Am. Dec. 777 where an infant was sought to be estopped by the conduct of his mother at the time when the contract was made; the Court ruled that the conduct of the mother could not affect or impair the right of the plaintiff to repudiate the contract. The same doctrine was applied in the cases of Aitchison v. Elder (1894) 149 Ill. 173 : 36 N.E. 565 and McMahon v. German Bank (1910) 111 Min. 313 : 29 L.R.A. (N.S.) 67. In the case last mentioned, money belonging to an infant was deposited in a Bank, and by the carelessness of the mother, a person, who professed to be guardian of the infant but was not so either in fact or law, was able to withdraw and-misappropriate the sum: the Court ruled that the infant was not estopped by the conduct of the mother. This position is obviously sustainable on principle: as Baron Parke held in Cannan v. Farmer (1849) 2 C. & K. 746 : 3 Ex. 698 the law throws protection around infants and married women, and you cannot make them liable to contract by their own representation. But if a representation does not operate as an estoppel, because the party making it is legally incapacitated from entering into the obligation from which the estoppel might otherwise have arisen, it would be impossible to hold that he was estopped by the acts or admissions of other persons. This view is supported to some extent by the decisions in Dambar Singh v. Jawitri Kunwar 29 A. 292 : 4 A.L.J. 181 : A.W.N. (1907) 72; Dalibat v. Gopibai 26 B. 433 : 4 Bom. L.R. 105 and Abdullah Khan v. Musammat Bundi 8 A.L.J. 1084 : 34 A. 22 : 11 Ind. Cas. 710. The second ground assigned by the respondent, consequently, furnishes a sufficient answer to the plea of estoppel put forward by the appellants it furnishes an even stronger and clearer answer to the contention of the appellants. It has been argued that even if it be conceded that the infant could be estopped by the conduct of his mother, there has been no such conduct on her part as could create an estoppel. As we have already stated, notwithstanding the conveyance of 1875, Bharat Majhi retained possession of the putni lease and of the conveyance he also continued in possession of the property by collection of rent from the under tenants and payments of rent to the superior landlord. Consequently, if Ramdhan had transferred the property during the life-time of Bharat Majhi, the purchaser could not possibly claim the status of a bona fide purchaser for value without notice. No estoppel, therefore, could be pleaded as against Bharat Majhi himself. -After his death, his widow appointed Ramdhan as agent for collection of the rents. Ramdhan carried out the work entrusted to him faithfully for a short time. There is nothing to indicate that the widow was aware of the existence of the conveyance of 1875. If she was not, she could not even imagine that Ramdhan might abuse the trust reposed in him and transfer the property to a stranger. It cannot, therefore, be reasonably maintained that she placed Ramdhan in a position where she knew Ramdhan would be able to commit a fraud, and consequently the doctrine recognised in Juggernath Augurwallah v. Smith 33 C. 547 and D. McLaren Morrison v. Verschoyle 6 C.W.N. 429 at p. 445 viz. that where one of two innocent parties must suffer from the raud of a third, the loss should fall on him who enabled such third party to commit the fraud, cannot rightly be applied in this case. It is further clear that as there was no estoppel against Bharat Majhi, there can be none against the plaintiff as his heir, Sarat Chander Dey v. Gopal Chander Laha 19 I.A. 203 : 20 C. 296 nor is there any estoppel, as we have already seen, due to representation by the plaintiff personally or to the conduct of his mother. It may finally be pointed out that the first defendant cannot properly claim the status of a purchaser without notice. Let it be assumed for a moment that in 1901 when he made his purchase, Ramdhan was in possession by collection of rent, and that he found that Ramdhan had also custody of the putni Uease and of the conveyance of 1875. An inquiry into the title would have apprised him of the mortgage of 1887 by which Bharat and Ramdhan gave their respective properties as security for a loan, wherein the disputed tenure was described as the property of Bharat Majhi. The first defendant would also have discovered on inquiry from the superior landlord that, for many years after the death of Bharat Majhi, rent had been paid by Ramdhan merely as agent; and if the purchaser had further called upon Ramdhan to produce the rent receipts granted by the superior landlord, he would have discovered that Ramdhan was unable to comply with his request; as a matter of fact, these receipts have been produced in the present litigation by the plaintiff himself. An inquiry from the under-tenants would possibly have disclosed the fact that it was only in recent years that Ramdhan had professed to collect rent on his own behalf. The purchaser is bound to make enquiry into the title, and if he does not take reasonable care to do so, he takes the chance of his claim being defeated by the real owner. Zungabai Bhawani v. Bhawani Appaji 9 Bom. L.R. 388; Partap Chand v. Saiyida Bibi 23 A. 442 : A.W.N. (1901) 137; Manji v. Hoorbai 35 B. 342 : 8 Ind. Cas. 752 : 12 Bom. L.R. 1044; Vyankappacharya v. Yamnasani Radhasami 35 B. 269 : 13 B.L.R. 256 : 10 Ind. Cas. 817 and Pateshri Partab Narain Singh v. Nageshar Pershad Pande 8 A.L.J. 358 : 10 Ind. Cas : 961. Too much stress, however, need not be laid upon this aspect of the case because if the purchaser saw the title-deeds with the vendors and found him in possession, the necessity for a detailed inquiry into the title for a period of more than 12 years might not be obvious. Khwaja Muhammad Khan v. Muhammad Ibrahim 26 A. 490 : A.W.N. (1904) 99 : 1 A.L.J. 219; Mutnsaddi Lal v. Daleep Singh 7 A.L.J. 967 : 7 Ind. Cas. 442. It is not necessary here to discuss at length the limits within which enquiry is obligatory to avoid the effect of notice, but it is worthy of note that Mr. Justice North, in In re Coxe and Neve's Contract (1891) 2 Ch. 109, at p. 118 : 64 L.T. 733 : 39 W.R. 412, indicated that a purchaser of free-hold lands in England should require a forty years' title, that is, title deduced for forty years and for so much longer as it is necessary to go back in order to arrive at a putni at which the title can properly commence. See also Oliver v. Hinton (1899) 2 Ch. 264 : 68 L.J. Ch. 583 : 48 W.R. 3 : 81 L.T. 212 : 15 T.L.R. 450. It is superfluous, however, to investigate the matter further on these lines, because it is plain that 'there has been nothing in the conduct of the mother of (he plaintiff which could create any estoppel against him.
5. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.
6. I agree.