Pigot and Rampini, JJ.
1. The plaintiff sues as purchaser of the shares in certain property of Ahmed Hossein and Rohimunnessa, the son and daughter of one Umed Ali Ostagar, of whose estate the property in question formed part, and who died in the year 1879, leaving him surviving his widow Azru, Ahmed Hossein, Rohimunnessa, and Bunnijan, his children by Azru, and a son Palkjan, by a second wife. The defendants purchased the property, in which the plaintiff claims the shares of Ahmed and Rohimunnessa, at an execution sale, which took place on the 15th May 1882. The sale at which the defendant purchased this property was in execution of a decree in a mortgage suit brought by one Kalimuddin, the mortgagee, in 1881, and the decree in which was made in December 1881. The plaintiff says that the mortgage, to enforce which the suit of 1881 was brought, was ineffectual to pass any interest in the property, and that no interest in the property passed to the defendant under the sale on the 15th May 1882 in execution of the mortgage decree. The mortgage was entered into between Azru Bibi, the widow of the deceased Umed Ali Ostagar, and Kalimuddin. Azru claimed to be entitled to the property mortgaged under a hiba executed by her husband on the 4th January 1878, by which hiha, in consideration of the sum of Rs. 11,361, due to her in respect of her fixed dower, Umed Ali conveyed the property in question amongst other properties to her absolutely. On the part of the plaintiff, it is said that this hiba was a mere benami transaction, and conveyed no estate in the property, and that as against the defendants he is entitled to the shares of Ahmed and Rohimunnessa, inherited by them from their father. It has been held as a' matter of fact by the lower Court that the hiba was a benami transaction. But it is contended by the defendants that the plaintiff' cannot recover, claiming as he does under Ahmed and Rohimunnessa, on the ground that they, his assignors, were estopped from disputing the validity of the hiba, and that he in this case cannot dispute it. The case of Luchmun Chunder Gear Gossainv. Rally Churn Singh (19 W.R. 292) has been cited on behalf of the defendants. And apart from the principles laid down in that decision, which was a decision of the Privy Council, the circumstance of Ahmed Hossein having attested the deed of mortgage to Kalimuddin is relied on as estopping him from questioning his mother's power to execute the document, and a power-of-attorney executed by Rohimunnessa, amongst others, in favour of Ahmed, on the 17th December 1879, is relied upon as having a similar effect as regards her.
2. As to Ahmed we are unable to hold that the mere witnessing by him of that document, i.e., the mortgage, or his assent to the execution of it, can create an estoppel binding' on him, unless it were apparent that when he witnessed the deed and assented to it, he did so with knowledge of the invalidity of the hiba to confer upon Azru, and the fact that Azru had no power to create, a good title as against him, of which knowledge on his part there is no proof. As regards Rohimunnessa, we need say no more than that we cannot consider the execution by her of the power-of-attorney above alluded to as having the effect attributed to it by the defendants. As to any other ground of estoppel affecting Ahmed and Rohimunnessa, it is true that in the proceedings on the Original Side of this Court in Suit No. 601 of 1881, filed by Palkjan, for administration of Limed Ali Ostagar's estate, both Ahmed and Rohimunnessa did support the validity of the hiba, but there is nothing to show that their having done so, or their being about to do so, was ever communicated to the-defendants by any one-certainly not by them. Indeed, the defendant's purchase at the execution-sale took place before the written statements filed by them in the suit in this Court were presented by them.
3. Upon the whole, therefore, we do not find any circumstance in this case such as to justify us in holding (assuming it to be material) that Ahmed Hossein and Rohimunnessa were, by acts of their own, estopped from disputing as between them and the defendants the validity of the hiba, which is the source of their title.
4. The next question is whether in this case the decision of their Lordships of the Privy Council in Luchmun Chunder Geer Gossain v. Rally Churn Singh 19 W.R. 292 is an authority which we can apply in this case, so as to hold that Ahmed and Rohimunnessa, as heirs of Umed Ali Ostagar, became estopped as to the hiba. Now in that case, there were circumstances which do not exist in the present: there had been a long course of public acts and declarations by Ubotar Singh, the grantor of the deed of sale to his wife Ulpa, which in that case was held to have been a benami transaction; and, further, Ubotar Singh, during his lifetime, as far as possible, by transfer of possession and otherwise, did all that he could to cause his wife to bear towards the public the character of owner. In the present case there was nothing save, first, the execution of the deed; secondly, the registration of it; thirdly, the execution of a general power-of-attorney by Azru in favour of her husband; and, fourthly, the fact that a seal was made for her, to constitute acts of the kind relied on in the case before their Lordships. And of none of them, save the execution of the deed itself, is it shown that the mortgagee or the present defendants were informed and aware. Again, before the sale on the 15th May 1882, in the suit in which that sale took place, the validity of the hiba was impeached by Palkjan, the plaintiff in the original suit in the High Court. It is true that Palkjan's claim was dismissed: still the fact that that claim was made was one that we understand the Additional District Judge to hold ought to have put the defendants upon enquiry. And although it is true that at that time the proceedings in the suit in the High Court did not contain an express denial by Palkjan of the validity of the hiba, the fact that he at least contested its validity, and that in the schedule to his plaint in that suit he included the properties in the estate left by his father, the administration of which he sought, must have appeared to the defendant had he made enquiry. Further, it is to be noted that there was no mutation of name in respect of this property to that of Azru Bibi, and there is nothing in the case to show that up to the time of the death of Azru's husband, she toad (save in having executed that purely formal document, the power-of-attorney, under colour of which affected authority the property was managed, i. e., really enjoyed by her husband) anything to do with the possession of the property or the enjoyment of any of its profits. Under these circumstances, we cannot hold that the Additional District Judge-either in determining, as he has done, that no estoppel was created, or in holding, as he has done, that the defendants do not occupy the position of bona fide pur- chasers without notice-was wrong; and this absolves us from considering the further question, which we might, perhaps, have otherwise found it necessary to determine, viz., whether, if Ahmed and Rohimunnessa were estopped from disputing the hiba, that estoppel would have been one binding on the plaintiff in the absence of proof of knowledge on his part of the circumstances that gave rise to it.
5. We may add that we share the regret expressed by the Additional District Judge in coming to this conclusion in such a case. We would further say that we are sensible of the great importance of carrying out to the full the principle of the decision of the Privy Council in the case above cited, but that case does not go so far as to decide that the mere fact of a benami transfer in itself constitutes such a misrepresentation as to bind all persons claiming under the person who creates the benami, and, however salutary it might be that such should be the rule of law, we cannot hold that such a rule exists.
6. We, therefore, affirm the decree of the Additional District Judge, save as to that portion of it which orders the defendant to remove the wall built by him, for which we can see no warrant. As to that we must reverse the decree of the Court below. The respondent is entitled to remove the wall if it is on his land, but he is not entitled to a decree compelling the defendant to remove it. In other respects the appeal is dismissed with costs.