S. Acharya, J.
1. The unsuccessful plaintiff No. 1 in both the Courts below is the appellant in this second appeal.
2. Plaintiff No. 1' is the father of plaintiff No. 2. The plaintiffs filed thesuit for a declaration that the sale deed executed by plaintiff No. 2 in favour of defendant No. 1 is not binding on the plaintiffs as the same is without consideration and was brought into existence through fraudulent means by taking advantage of the young age of plaintiff No. 2. It is the plaintiffs' case that the suit property originally belonged to Bramar Sahu (P. W. 3) and it was purchased by plaintiff No. 1 nominally in the name of his son, plaintiff No. 2 on 5-10-1953 as plaintiff No. 1 was then a leper. Plaintiff No. 1 paid the consideration money for the said purchase and he remained in possession of the land as well as the sale deed executed by Bhramar since the date of purchase. It is alleged that Radhamohan Patnaik, defendant No. 2 (sister's husband of defendant No. 1) persuaded plaintiff No. 2 to execute a sale deed in respect of the suit property in favour of defendant No. 1 on the pretext that he (defendant No. 2) would take plaintiff No. 2 as a partner in his opium smuggling business and for that he (plaintiff No. 2) should nominally transfer his properties in the name of defendant No. 1 in order to avoid confiscation of the same in case he (plaintiff No. 2) would set involved in any case while taking part in the said smuggling business. Plaintiff No. 2, who was then an' inexperienced voung boy was lured by all that was told to him and so he executed a nominal sale deed in favour of defendant No. 1. But the said sale deed was not acted upon in any manner whatsoever. It is also stated that at the time of the execution of the sale deed plaintiff No. 2 was not pulling on well with his father, plaintiff No. 1 the real owner of the property, and so the defendants, taking advantage of the voung age and inexperience of plaintiff No. 2, could manage to Set the sale deed Ext. A executed by plaintiff No. 2 without Payment of any consideration for the same. It is averred that the said sale deed is invalid and inoperative, and defendant No. 1 has not acquired any title to the same. Hence this suit for the cancellation of the sale deed Ext. A.
3. Defendant No. 1 alone filed the written statement in this suit and the other defendant was set ex parte. Defendant No. 1 in his written statement has denied all the plaint allegations. His case in short is that plaintiff No. 2 was not a minor when he executed the sale deed Ext. A in favour of this defendant. It is also asserted that he purchased the suit property from plaintiff No. 2 without practising any fraud or inducement on plaintiff No. 2 and he executed the sale deed Ext. A on receipt of the full consideration money, and accordingly the sale in favour of defendant No. 1 is not a nominal one and is not invalid or inoperative on any consideration. It is further asserted that plaintiff No. 2 is the real owner of the property and plaintiff No. 1 is in no way interested in the same. Mostly on the above averments defendant No. 1 prayed for the dismissal of the suit.
4. The trial court arrived at the following findings: Plaintiff No. 2 was not a minor at the time of the institution of the suit or at the time of the execution of the sale deed Ext. A in favour of defendant No. 1; the sale deed in favour of defendant No. 1 was not vitiated by fraud and undue influence as alleged by the plaintiffs: plaintiff No. 1 was the real owner of the suit property and with his express consent plaintiff No. 2 was the ostensible owner; the sale in favour of defendant No. 1 by plaintiff No. 2 was supported by payment of consideration; plaintiff No. 2 executed the sale deed after attaining majority and the said sale deed was drafted and executed in the presence of plaintiff No. 1 and he had knowledge about all that and accordingly the sale under Ext A was not voidable or inoperative and the transfer so made was protected under Section 41 of the Transfer of Property Act.
5. The appellate court mostly confirmed the above mentioned findings of the trial court.
6. Mrs. Padhi, the learned counsel for the appellant contended that in view of the finding that plaintiff No. 1 was the real owner and plaintiff No. 2 was only the ostensible owner of the suit property, it was for defendant No. 1 to specifically state in his written statement and to prove all the relevant facts which would so to show that he purchased the property in good faith after taking reasonable care to ascertain that the transferor had power to make the transfer.
7. The courts below, while considering the question as to whether defendant No. 1, in purchasing the property, acted in good faith or not, have taken into consideration the facts established on the evidence on record that the aforesaid sale deed Ex. A was for consideration and no undue influence or fraud was exercised on plaintiff No. 2 for the execution of the said sale deed in favour of defendant No. 1 that the suit land was not mutated in the name of plaintiff No. 1; that excepting the title deed in favour of plaintiff No. 1 plaintiff No. 2 was the owner of the suit property: that at the time of the execution of the sale deed Ext. A plaintiff No. 2 was about 20 years of age; that there is no documentary evidence on record to substantiate the Plaintiff's case that plaintiff No. 1 was in possession of the suit land or was collecting rent from the hutments standing on the same; that plaintiff No. 1 was present at the time of the drafting and execution of the sale deed Ext. A by plaintiff No. 2 in favour of defendant No. 1 and he had knowledge about the transaction; and that his signature on Ext. A could not be taken as he was a leper. The plaintiff's case that plaintiffs 1 and 2 were not on good terms with each other at the time of execution of Ext. A has been disbelieved.
8. Defendant No. 1 has taken the consistent stand, both in his written statement and also in his evidence, that he purchased the suit property from plaintiff No. 2 as he was the owner in possession of the property. It is also his consistent case that plaintiff No. 2 being the rightful owner of the property, the Sale effected by him is not invalid or inoperative on any consideration, and that after the execution of the sale deed Plaintiff No. 2 put defendant No. 1 in Possession of the suit property. The plaintiffs have failed to establish that plaintiff No. 1 was exclusively in possession of the suit Property as claimed by him. From the discussion of the evidence on record in the judgments of both the courts below it is quite evident that there was no material available from which defendant No. 1 could have known on enquiry that the property really belonged to plaintiff No. 1 and not to plaintiff No. 2, and the trial court has taken note of this fact while discussing this aspect of the matter.
On taking into consideration all the above facts and other concurrent findings as stated above it is difficult for me in this second appeal to differ from the concurrent finding of both the courts below that defendant No. 1 purchased the said property in good faith and the protection under Section 41 of the Transfer of Property Act is available to him.
Mrs. Padhi, to support her above mentioned contention, cited the decision reported in AIR 1963 SC 1917 (Gurbaksh Singh v. Nikka Singh). In this case as found by their Lordships, the tell-tale facts established beyond doubt that the appellant had the knowledge that the title of his transferor was in dispute and he had taken a risk in purchasing the same. In the context of those facts, which distinctly are different from the facts of the present case, their Lordships have held that Section 41 being an exception to the general rule that a person cannot confer a better title than he has the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. It is further laid down that where the facts establish beyond doubt that the purchaser had the knowledge that the title of his transferor was in dispute and he had taken the risk in purchasing the same, it is not possible to hold that he had purchased the Property in good faith. From the above it is quite evident that the decision, both on the facts and on the points decided does not apply to the present case and does not support the specific point raised by Mrs. Padhi.
Mrs. Padhi cited the decision reported In AIR 1961 Pat 314 (Ramsaran Mahton v. Harihar Prasad) in support of her contention. The decision of this Court in Arta Rout's case reported in AIR 1957 Orissa 157, which shall be referred to later was cited in that case, but it was distinguished only on the fact that the sale deed in question in this case was for consideration, whereas the sale deed relating to the above Patna decision was without consideration. On the same basis therefore the Patna decision is distinguishable on its facts from the present case before me, since the courts below in the present case have held that the sale deed in question is for consideration. In the Patna decision the following passage front the Privy Council decision in Ramcoomar Koondoo v. Mc Queen reported in (1872) 18 Suth WR 166 was cited.
'It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title unless he can overthrow that of the purchaser by showing, either that he had direct notice, or something which amounts to constructive notice, of the real title or that there existed circumstances which ought to have put him upon an enquiry that, if prosecuted would have led to a discovery of it.'
The above observations of their Lordships of the Privy Council were reiterated in the decision reported in AIR 1923 Cal 240 (Baidya Nath Dutt v. Alef Jan Bibi). The above passage from the Privy Council decision, however, was considered as of no avail in the Patna decision as the Privy Council decision was based on a sale for value, as in the present case before me. As the Patna decision has proceeded distinctly on facts different from those in the present case and also in the aforesaid Orissa case as stated above all that has been held or decided therein can be of no avail or assistance to the appellant.
The passage from the Privy Council decision quoted above is squarely applicable to the present case. In the present case, as can be seen from the facts stated above, plaintiff No. 1, the real owner of the property allowed plaintiff No. 2 to hold himself out as the owner of the property, and the third party purchaser, i. e. defendant No. 1, purchased that property for value from the apparent owner in the belief that he was the real owner. So the real owner i. e. plaintiff No. 1. on the basis of the law laid down in the above Privy Council case, is not entitled to recover upon his secret title as he has failed to show that the purchaser had direct notice, or something which amounts to constructive notice of the real title or that there existed circumstances which ought to have put the purchaser upon an enquiry which if prosecuted properly would have led to a discovery of the real title.
The Privy Council decision obviously does not support Mrs. Padhi's contention.
9. The next decision on which Mrs. Padhi placed reliance is reported in AIR 1952 Orissa 75, Natabar Parichha v. Nimai Charan Misra. This decision again has been arrived at on facts which are very much different from the facts of the present case. On the evidence on record it was quite evident in that case that the transferee did not take reasonable care to ascertain that the transferor had power to make the transfer. It is found therein that the contents in a particular judgment and recitals in the deed of gift both exhibited in that case, were sufficient to show that there were other claimants to the property. There were also other documents to show that some persons were interested in launching litigation for the property. On the above facts it was held in that case that if the transferee had acted with reasonable care he would have easily found out that the transferor's right to make the transfer was itself in question. On the context and perspective of these facts which patently are distinctly different from the facts of the present case, certain observations have been made therein which are of no avail or help for this case and for the specific point raised by Mrs. Padhi.
10. The question as to whether the transferee took reasonable care to ascertain that the transferor had Power to make the transfer is a Question of fact, which has to be decided on the basis of the facts and circumstances of each case on the available evidence on record and no hard and fast rule for pleadings and evidence to that effect can be laid down, as suggested by Mrs. Padhi.
11. In the decision of this Court reported in AIR 1957 Orissa 157 the principle underlying section 41 of the Transfer of Property Act as stated in D. F. Mulla's book on Transfer of Property Act edited by Hon'ble S.R. Das (Retired Chief Justice of the Supreme Court) has been adopted. The relevant passage is as follows:--
'A benamidar is an ostensible owner and if a Person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title.'
The following observation of Chandrasekhar Ayyar, J. in the Division Bench decision reported in AIR 1942 Mad 28 has also been quoted with approval.
'Wherever one of two innocent persons has to suffer by the act of a third person the person who is enabling the third person to occasion the loss must sustain it.'
After accepting the law as quoted above it was held in the aforesaid decision of this Court that as the transferor was enabled by the real owner to occasion the loss sustained by the transferee, even if the real owner was an innocent person along with the transferee, it was the real owner who had to sustain the loss. It has been further held that even if the transferee was aware of the actual physical possession of the properties by the real owner that possession was not inconsistent with the title of the properties in the transferor. Further it is held that the real owner's consent to the transferor to transfer the properties to the purchaser either express or implied was not necessary under Section 41 of the T. P. Act.
12. In the present case it is the concurrent finding of fact that plaintiff No. 1 was all through present at the time when the sale deed was drafted and executed by plaintiff No. 2 and he had knowledge about the entire transaction. From this and other facts found by the courts below it is quite evident that plaintiff No. 1 by his conduct created a definite impression on defendant No. 1 and led him to believe that plaintiff No. 2 was the real owner of the property as per the sale deed in his name and that he was legally entitled to deal with and transfer the suit property as he liked. Defendant No. 1 purchased the suit property for good consideration openly in the Presence of plaintiff No. 1 and other persons, without exercising any undue influence or fraud on plaintiff No. 2.
13. Considering the law on the point and the facts and findings stated above, I do not find any reason to differ from the above-mentioned concurrent finding of the two courts of the fact on this aspect of the matter.
14. I therefore do not find any merit in this appeal which is accordingly dismissed, but in the circumstances without cost.