Full Judgment
Henry Richards, C.J. and Pramada Charan Banerji, J.
1. This appeal arises out of a suit on foot of a mortgage executed by one Lal Muhammad on the 13th of November, 1907. The suit was defended by persons who claimed under a mortgage made in 1908, by Lal Muhammad and his wife, Zahuran. They allege that Lal Muhammad had no interest in the property. The facts are practically admitted. One Muhammad Bakhsh entered into possession of the property adversely to the real owner. He had a daughter of the name of Zahuran, who married Lal Muhammad. These persons, and probably other members of the family of Muhammad Bakhsh, continued in possession of the property until Muhammad Bakhsh died.
2. After his death Lal Muhammad and his wife Musammat Zahuran continued in possession. No doubt the property was managed by Lal Muhammad after the death of his father-in-law. In the mortgage in favour of the defendant it is stated that the property was inherited by Musammat Zahuran from her father. There is also a statement that the executant No. 2 was in proprietary possession. Whether this was a mistake or not is not very clear, but the two statements are not consistent. The lower appellate court found that Lal Muhammad was only managing the property on behalf of his wife; furthermore, that had the plaintiff made the least inquiry, he would have found that Lal Muhammad had no title whatever. We may mention here one more fact connected with the mortgage in favour of the defendants. In the mortgage deed the mortgage now sued upon was mentioned, and it was also mentioned that money was left in the hands of the mortgagees to pay off the amount of that mortgage. The defendants appellants, who were the subsequent mortgagees, did not pay off the amount of the mortgage for the following reason. A suit was brought by a son of Muhammad Bakhsh, and ho obtained a decree for two-thirds of the property. They considered that under these circumstances they were not bound to pay off the mortgages, but gave credit for the amount against their own mortgage and sued to realize the balance which they had actually advanced. Under these circumstances the lower appellate court dismissed the suit as against the mortgaged property, but gave a simple money decree against Lal Muhammad. On appeal to this Court a learned Judge reversed the decree of the lower appellate court and restored the decree of the court of first instance which had given a decree for the sale of the mortgaged property.
3. In our opinion the decree of the lower appellate court must be restored. We consider that under the circumstances of the present case the property must be deemed to have become the property of Muhammad Bakhsh, and after his death passed to his heirs. Lal Muhammad had no title of any kind. The suggestion whether Lal Muhammad was the ostensible owner of the property with the consent, express or implied, of the heirs of Muhammad Bakhsh, and the further question whether the plaintiff in the present case bond fide took the transfer after taking reasonable care to ascertain the title of Lal Muhammad, were questions of fact to be decided by the lower appellate court. This Court is bound by the findings of fact of the lower appellate court, in second appeal and cannot go behind them, whether it approves of the finding or not. We must, therefore, take it that Lal Muhammad was not the ostensible owner within the meaning of Section 41 of the Transfer of Property Act. We have already stated that in our opinion as a matter of law he had acquired no interest in the property by reason of the fact that he had lived with his father-in-law, Muhammad Bakhsh. This being so, no interest of any kind passed to the plaintiff under the mortgage of the 13th of November, 1907, and his suit, so far as it sought a sale of the mortgaged property, was rightly dismissed. We allow the appeal, set aside the decree of this Court, and restore the decree of the lower appellate court with costs of both hearings in this Court.