JUDGMENT Niamatullah, J.
1. These are two connected appeals from a decrea passed by the learned Subordinate Judge of Ghazipur upholding the claim of the plaintiff-respondent, Muhammad Kazim, to a Hi out of 216 sihams representing the entire property, originally belonging to one Syed Ali Hasan, whose relationship with the ' plaintiff and other defendants will appear from the following pedigree:
Syed Ali Husain=Mt. Sughra Bibi | _________________________________________ | | Syed Ahmad Husain Mt. Khatun Bibi (predeceased his mother, (survived her but survived his father parents) | _______________________________ | | Syed Amir Hasan Mt. Habiba Bibi (died 1906 (defendant 1). or 1907)=Syed Jawad Husain (defendant 3).
2. The defendants to the suit were eight in number, out of-whom five are transferees claiming under deeds executed by defendant 1, Syed Amir Hasan, who died during the pendency of the appeals to this Court and is now represented by his heirs. The plaintiff claims title through his mother, Habiba Bibi, who is said to have died about 21 or 22 years before the institution of the suit. It is not in dispute that the property in suit, except possibly certain houses and groves, originally belonged to the common ancestor, Syed Ali Husain, who died long ago leaving his widow, Sughra Bibi, a son, Ahmad Husain, and a daughter, Khatun Bibi, each of whom inherited a portion of his property under Mohammadan law. Ahmad Husain died in the lifetime of his mother, leaving a son, Syed Amir Hasan, defendant 1, and a daughter, Habiba Bibi, the mother of the plaintiff. 'According to Mohammadan law, his interest devolved upon his mother, son and daughter. On Mt. Habiba Bibi's death, the plaintiff inherited a share in her property. The plaintiff's interest in the property of Syed Ali Huaain has been found to be I7i shares, if the entire property of Ali Husain be considered to consist of 216 shares. It is not disputed 8that this is the extent of the plaintiff's share, if his claim is otherwise not defeated.
3. The defence of Syed Amir Hasan, defendant 1, was that his possession had been throughout adverse to the plaintiff's mother and the plaintiff himself, both of whom had lost their rights by lapse of time. Defendant 6, Shaikh Fazal Husain,. claimed part of the property in dispute under a mortgage dead and a sale-deed both of 23rd December 1920, executed by Amir Husan, defendant 1. In addition to. his vendor's plea of adverse possession, he. defends his own position on the allegation that he purchased the property from Amir Hasan who was the ostensible owner thereof, with the consent of the plaintiff and his mother, and that he (defendant 6) obtained transfers for consideration and in good faith after taking reasonable care to ascertain that his transferor had authority to make the transfers. Syed Amir Hasan pleaded, as a subsidiary case, that the house and groves in dispute were his personal property, he having constructed the houses and planted the groves. The learned Subordinate Judge found against the defendants on all questions raised by ; them and decreed the plaintiff's suit, except as regards a portion of a certain house, which he found to have been built by Amir Hasan himself. First Appeal No. 72 of 1929 was filed by Fazal Husain, defendant 6, and F.A. No. 97 of 1929 was filed, by Amir Hasan.
4. The principal question argued before us on behalf of the heirs of Amir Hasan was that the latter was throughout in adverse possession against his sister and the plaintiff. The finding of the learned Sub-ordinate Judge that the houses decreed to the plaintiff have been in existence from the time of the common ancestor has also been challenged before us. Similarly the view expressed by the learned Subordinate Judge that the groves, though planted by Amir Hasan on common land, should be considered to belong to all the co-sharers has been impugned. In the appeal of the transferee his plea based on Section 41 of the Transfer of Property Act was reiterated and argued.
5. On the question of adverse possession we were addressed at length by the learned Counsel for Amir Hasan's heirs. He drew our attention to the fact that Amir Hasan was not only the recorded proprietor of the entire property ever since the death of his father, Ahmad Husain, but that he also dealt with it in all respects as if it belonged to him exclusively. It appears that, as far back a? 12th October 1884, he entered into an arrangement with his father's sister Khatun, who executed a deed of relinquish-menfc in his favour in respect of her interest in all t he numerous properties that had been left by her father in consideration of a five anna share in village Ismailpur, which was all that belonged to Syed Ali Husain in that village. The arrangement was. that Amir Hasan allowed her to take exclusively the share in Ismailpur, while she disclaiihed all interest in the rest of his father's property. The deed recites that Ali Husain died leaving his son and daughter as his heirs and mentions the names of those who had in law inherited the property of Ali Husain. It also mentions that Mt. Habiba Bibi was an heir to her father, Ahmad Husain though Amir Hasan professed to deal with the property as if it were his own, the transaction was not in denial of his sister's right, which was admitted in clear terms. We may in passing dispose of a contention urged on behalf of the plaintiff in reference to the share of Khatun Bibi in properties other than that she took usder this. The plaintiff's learned Counsel argued that she relinquished her share in other properties to all the heirs. The deed, however mentions exprosaly that she relioquished it in favour of Amir Hasan who gave her the share in village Ismailpur, It is impossible to distinguish this-transaction from any other transfer mada by Amir Husan. The plaintiff can no more claim a share in what Amir Hasan received from Mt. Khatun Bibi than he can claim a share in the consideration of a sale or mortgage made by him of the joint property.
6. On the 6th of June 1894, Amir Hasan sold a one-anna share in a certain chak in village Nonahra to Bandhan Bam and others. The deed recites that Amir Hasar was the owner of the property thereby conveyed. It may be taken as implied that in that particular property Amir Hasan did not admit the share of his sister, Habiba Bibi. There is however, nothing in the recital which can be construed as a denial of her right as the heir of his father as regards properties other than that transferred by the deed. The plaintiff baa not claimed any share in that property nor the 'transferees, Bandhan Bam and others, have been impleaded in this suit. Amir Hasan's denial of the right of his sister, in so far as it may be implied in the sale of the property affected by the sale-deed of the 6th June 1894, canot be extended toother properties including those now in suit. Amir Hasan executed a lease on 2nd December 1898 in favour of one Muzaffar Hueain in respect of a few bighas of land. The lease was in perpetuity. The plaintiff baa not claimed the land conveyed by the lease and the same remarks apply to it as to the deed dealt with above. Amir Hasan executed a deed of simple mortgage on 4th July 1906, in favour of Fazal Husain, defendant 6, hypothecating certain properties, some of which are in suit. This being a simple mortgage, there was no change in possession and the plaintiff's mother has not been shown to have had any knowledge of it. Amir Hasan executed a sale-deed in favour of one Paighatnbar Bakhsh on the 1st May 1904, in respect of a certain property, which is not in dispute. The sale-deed recites that the vendor was the sole owner of the properties thereby conveyed. For the reason already stated, we do not think that the denial of the plaintiff's right, implied in the recital referred to, can be considered as a denial generally of the plaintiff's right in all properties inherited by his mother and Amir Hasan of as a denial of her right to the properties other than that to which the sale-deed related.
7. In consideration of the sum due to Fazal Husain, Amir Hasan executed a deed of usufructuary mortgage and a deed of sale on 23rd December 1920. It is not disputed that the properties covered by these deeds have been in possession of Fazal Husain from the date of the transfers. His possession was of less than 12 years' standing when the suit was brought. The plaintiff's claim with respect to those properties cannot therefore, be affected by limitation or adverse possession. As against the documents above referred to, the plaintiff relies on an important; admission of Amir Hasan made on the 21st April 1894 in the course of his evidence in a certain case. He stated that Habiba Bibi did not get a share in father's estate but she lives with me and has a right like myself. I mean to say that she has no separate share : but I do not deny her right.
8. From the evidence oral and documentary it is clear that ever sinca the death of Ahmad Husain over 40 years before the present suit, Amir Hasan was not only the sole recorded proprietor but also in actual possession. His sister never asserted her right or interfered with the possession of her brother. The plaintiff alleged and attempted to prove that his mother and after her death he himself had been in receipt of a share of profits. The learned Subordinate Judge has, in our opinion rightly, disbelieved this story. It must be held that though the plaintiff and his mother might have been maintained by Amir Hasan, neither of them ever received any profits from Amir Hasan. At the same time, there is nothing to show that Amir Hasan ever denied the right of his sister to any of the properties now in suit or her right as the heir of Ahmad Husain. No occasion seems to have ever arisen for either of them to have expressed themselves on the subject, except when Amir Hasan gave evidence in 1893, to which reference has already been made. The question is whether Amir Hasan's possession can be considered to have been adverse, so as to extinguish his sister's right. It is a well accepted rule that as between co-sharers possession of one and non-receipt of profits by the other do not set limitation running against the co-sharer not in possession. In the absence of ouster, there can be no adverse possession in such a case. Ouster implies denial of the right of the claimant to his or her knowledge, actual or presumed. Evidence in the present casa falls far short of proving these requirements. We therefore hold that the learned Subordinate Judge was right in over ruling the defendants' plea of adverse possession. As regards the houses in which the plaintiff has been found to have a share, it is contended that, on the evidence adduced by defendant 1, it should be held that they were builf; by Amir Hasan. We are in agreement with the learned Subordinate Judge that this has not been established. It is clear that the houses have been in existence from the time of the common ancestor. They were repaired by Amir Hasan from time to time, which however will not give him exclusive right as against his co-sharers.
9. As regards the groves, which' are specified in list A annexed to the written statement of defendant 1, the learned Subordinate Judge found that they had been planted by Amir Hasan on common land. The learned Subordinate Judge has allowed the plaintiff a share not only in the site but also in the trees. The only ground on which his decision is based is that ancestral land has been made use of by Amir Hasan, whose possession was on behalf of himself and his sister. He does not find that in planting the groves Amir Hasan acted for himself and his sister, in which case the groves should be considered to have been planted by both. There is nothing to suggest that Ali Hasan acted in that matter in a representative capacity. He was in the habit of treating the ancestral property as his own. We are clearly of opinion that in planting the grove he was actuated by the same considerations which were present to his mind when he made transfers of part of ancestral property. While on the one hand we do not consider that Amir Hasan should be deemed to have been in adverse possession of the plots on which he planted those groves, we do not think, on the other hand, that his sister, who did not object to her brother planting the groves, can be considered to be a sharer not only in the land but also in the trees planted by him.
10. The groves should be considered to belong to Amir Hasan and his heirs but the site should be considered to be the property of all the co-sharers. At the time of partition the claim of the other co-sharers can be adjusted by allowing to them land of the same quality in lieu of the grove land or otherwise compensating them for the separate possession of Amir Hasan's heirs. The learned advocate for the plaintiff referred us to Section 90 of the Indian Trusts Act and argued that the advantage gained by Amir Hasan should be allowed to be shared by his co-owners, in derogation of whose rights the groves were planted. We do not think that the principle underlying that section is applicable to the circumstances of the present case. It is a common practice for one of the co-sharers to be in separate possession of part of common land, the other co-sharers being left to their remedy by partition and obtaining compensation by award of the land of a similar quality. I Amir Hasan cannot be considered to have acted "in derogation" of the rights of the other co-sharers. The fact that out of common land one co-sharer appropriates to his exclusive use a portion thereof, without objection by the others, cannot be considered to be in derogation of the rights of other co-sharers, who can be compensated by other land of similar quality being allotted to them. The acquiescence of the co-sharers concerned has also a material bearing in determining the right of the co sharer planting a grove for himself. There is no suggestion that Mt. Habiba Bibi or the plaintiff took exception to Amir Hasan planting the groves. For these reasons, we are of opinion that the learned Subordinate Judge should have dismissed the plaintiff's claim to a share in the groves. His decree requires modification in this respect. The plaintiff has filed cross-objections against Amir Hasan's heirs in respect of the house as to which his claim has been dismissed on the finding that Amir Hasan purchased a certain house and rebuilt it. We are satisfied that the finding of the learned Subordinate Judge is amply borne out by the evidence in the case and that the plaintiff's claim in respect of that house cannot succeed; his cross-objections should, therefore, be dismissed. The appeal of Fazal Husain, defendant 6, has raised only one question, namely, whether he is entitled to the benefit of Section 41 of the Transfer of Property Act. Mr. Mushtaq Ahmad referred us, at the outset, to the language of Section 41 and the interpretation thereof in a case decided by a Division Bench of this Court. To examine his argument we must quote the language of Section 41, which runs as follows:
Where, with the consent, express or implied, of the person interested in immovable property, a person is the ostensible owner of such property, and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it, provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
11. It is argued that Section 41 cannot apply, unless (1) the transferor was an ostensible owner with the consent, express or implied, of the real owner; and (2) the transfer was made with such consent of the real owner. The language and the punctuation of the section lend some support to this construction; but this view leads to a great anomaly. Section 41 enacts a rule which is a species of estoppel but falling short of the requirements of Section 115, Indian Evidenoe Act. If it is proved that the transfer was made with the consent of the rightful owner, the case would fall within the purview of Section 115, Indian Evidence Act, and the other conditions of Section 41 need not be satisfied. Such consent will estop the owner, even though the transferee made no enquiries as to ascertain that the transferor had power to make the transfer a condition which is essential for the application of Section 41. Reliance is placed on Mohammad Shafiq Ullah Khan v. Mohammad Sami Ullah Khan A.I.R. 1929 All. 943, in which Sulaiman, J., is reported to have observed as follows:
Now under Section 41, not only should the transferor be the ostensible owner of the property with the consent, express or implied of the true owner, but he must also transfer the same with such consent, express or implied. There can be no doubt that the adverbial clause with 'the consent express or implied,' modifies not only the verb 'is' but also the verb 'transfers.'
12. Taken apart from the context, this dictum supports the contention of the learned advocate for the transferee. We do not think the learned Judge meant the observation to be taken literally. He was considering a case in which a person, who was the ostensible owner with the consent, express or implied, of the true owner, made a transfer during the pendency of a suit by such owner, in which the title of the ostensible owner had been questioned and which had been instituted only five days before the date of the transfer. On the one side it was argued that the transfer was affected by the rule of lis pendens and was not therefore binding on the true owner, who eventually obtained a decree against the transferor, the ostensible owner. On behalf of the transferee pendente lite it was argued that he was protected by Section 41. T. P. Act. The learned Judge pointed out that though the transferor was the ostensible owner with the consent, express or implied, of the true owner till the date of the suit; but the true owner expressly repudiated the right of the transferor by instituting his suit, so that, on the date of the transfer, the ostensible ownership was not with the consent of the rightful owner. After the sentence quoted above, the learned Judge further observed that it must therefore be held that the consent, express or implied, must continue up to the time of the transfer.
13. The essence of his decision is that the consent of the true owner to the possession of the ostensible owner must continue to the date of the transfer before Section 41, T.P. Act, can apply Pullan, J., who was the other learned Judge forming the Division Bench, observed that the section lays down as a preliminary that the transaction must be with the consent, express or implied, of such persons (rightful owners). It is not enough for the transferee to say that, as far as he knows the other persons interested in the property have no objection to the transfer. He must take some definite step to ascertain whether they consent or not. This again does not mean that they consented in the past, but the transferee must ascertain if they consent at the time of transfer. A person who has filed a suit challenging the whole right of the transferors to dispose of the property, ipso facto does not consent to the transfer.
14. The last sentence, quoted above, taken by itself and apart from the context in which it occurs, is apt to give an inaccurate impression as to what the learned Judge intended to hold. Clearly his intention was to emphasise that the transferor should be shown to have been the ostensible owner, with the consent, express or implied, of the true owner; and that such consent should subsist on the date of the transfer. "We do not think that, according to the true interpretation of Section 41, the transfer itself should be with the consent of the true owner. Nor do we think that the learned Judges intended to take that view. If they did, their observations, which are in the nature of obiter dictum, are not binding onus. The learned advocate for the transferee strongly relied on Mul Raj v. Fazal Imam A.I.R. 1923 All. 583 and Mubarakunnissa v. Muhammad Baza Khan A.I.R. 1924 All. 384 for the proposition that, where the transferor was in sole possession for a considerable length of time and was the sole recorded owner of the property in suit, the transferee who otherwise acts in good faith, is entitled to the protection afforded by Section 41, T. P. Act, if he satisfied himself by inspecting the revenue records. We do not think that any hard and fast rule can be laid down as regards the extent to which a transferee from the ostensible owner should "take reasonable care. to ascertain that the transferor had power to make the transfer." Each case must necessarily depend on its own circumstances. We do not think that the learned Judges meant to lay down any general rule of the kind above referred to. In our opinion, the test that can be laid down is that the transferee should show that he acted like a reasonable man of business and with ordinary prudence. We do not think that such a person would be satisfied by merely inspecting the revenue records which show that the transferor had been in possession for more than 12 years. The most natural question that would suggest itself to him is how his vendor acquired the property which he proposes to sell. If an enquiry as regards the source of his vendor's title elicits the information that he himself obtained it from another by transfer, he should call for title deeds. If, on the other hand, he finds that the vendor is in possession as an heir to a deceased relation, he would naturally enquire as to who were the heirs of the deceased at the time of his death ; and if he is satisfied that the vendor was the only heir, be is entitled to the protection of Section 41, though it may subsequently appear that the property belonged to some, one else, wholly or in part, of whose existence he was not aware in spite of the enquiry on the above lines. In the case before us, the transferee, Fazal Husain, did not go into the witness-box. The explanation offered on his behalf is that he generally resides in Cawnpore, where he carries on business. It is however not disputed that he is a resident of village Nonahra, where Amir Hasan resided, and that, he occasionally visits his native place. It is true that his nephew, Sulaiman, is in charge of his affairs, and it was through him that the transfers in question were taken by him. Sulaiman has given his evidence which shows that he questioned the patwari and inspected the settlement papers and learnt from both those sources that Amir Hasan was the owner. He says that he was not aware that the plaintiff was the nephew of Amir Hasan, or that the latter had any co-sharers. He is 43 years of age. Fazal Husain himself is much older. He is described in the plaint as 55 years of age. We do not think that Fazal Husain or Sulaiman were unaware of the fact that Amir Hasan had a sister, whose son the plaintiff is. They had every reason to believe that Amir Hasan derived his in. terests from his ancestors.
15. We do not think that Fazal Husain or Sulaiman, can, in the circumstances, be considered to have taken reasonable care to ascertain that the transferor had power to make the transfer. He should not have merely accepted the information given by the patwari and the settlement record, but should have asked Amir Hasain or some one else, who was in position to know, assuming Fazal Husain himself was not awara of the fact, whether Amir Hasan's father had left any other heir. It seems to us that Fazal Husain took it for granted that Amir Hasan's possession for more than 12 years, conferred an indefeasible title on him. Belying on that view of Amir Hasan's position, Fazal Husain book the transfers in question. He did not care to obtain any legal advice, which would have warned him against accepting Amir Hasan's title in view of the fact that his sister was also an heir and that possession of one co-sharer is not ordinarily adverse to the other. The position might have been different if Fazal Husain was not aware of the fact that Amir Hasan's father had left a daughter, of whose existence ha was not told on enquiry being made of persons who were in a position to be aware of her existence. The lady appears to have lived in her brother's house, and seldom visited her husband's residence in the district of Patna. This is not a case in which the transferee had either no means of knowledge, or matters were intentionally or otherwise misrepresented to him. In these circumstances, we think that the learned Subordinate Judge rightly held that Fazal Husain, defendant 6, is not entitled to the protection of Section 41, T.P. Act. His appeal must therefore fail.
16. The result is that appeal No. 72 of 1929 is dismissed with costs. Appeal No. 97 of 1930 is partly allowed, and the decree of the lower Court is so far modified that the plaintiff's suit in respect of the groves mentioned in list A annexed to the written statement of Amir Hasan is dismissed. In other respects the appeal is dismissed. Parties shall receive and pay costs in proportion to success and failure. The plaintiff's cross-objection is also dismissed with costs.