JUDGMENT
1. The property in suit belonged originally to one Musammat Munirun-nissa. She died apparently in the early nineties, leaving, a son Habib Hasan and a daughter Musammat Roshni. The name of Habib Hasan alone was entered in the revenue papers on the death of Musammit Munir-un-nissa and Habib Hasan has remained in physical possession of the property ever since then. In 1896 he mortgaged this property to the father of Mulraj. That mortgage was paid off in due course. Habib Hasan made another mortgage in 1908 and a third mortgage in favour of Mulraj in 1911. Subsequently, Mulraj brought a suit on this mortgage and having got a decree for sale put the property up for sale and bought it himself. Thereupon, the suit out of which this appeal arises was brought by Musammu Roshni for a declaration that she was entitled as owner to one-third of the property in suit and asked for a declaration that the mortgage and the sale so far as her one-third share is concerned were inoperative. She pleaded that, as a matter of fact, she had been all along in possession through her brother but that if it be held that she was not in possession she ssked for possession of her share. Various defences were raised by Mulraj but it is only necessary to consider the defence raised by him under Section 41 of the Transfer of Property Act. The learned Munsif on the evidence of the parties came to the conclusion that Habib Hasan had been acting as ostensible owner of this property and that Mulraj was entitled to the benefit of Section 41 of the Transfer of Property Act. He accordingly on this short point dismissed the suit, Musammat Roshni having died her heir appealed to the Court below and the learned District Judge of Saharanpur came to the conclusion that Section 4: of the Transfer of Property Act did not apply. He held that, the parties to the mortgage were residents of the same place the town of Deo-band) and the property in suit was also situated there. The defendant Mulraj admits that he took the mortgage without making any enquiry simply because Habib Hasan's name was recorded in the khewat and he had on a previous occasion mortgaged it to his father. He did not know how Habib Hasan had got that property and made no enquiry about it." Under these circumstances, the Court held that Section 41 had no application. He, therefore, set aside the decree of the Court below and remanded the case for decision of the other points raised in the case. Mulraj appeals and urges that the question whether Section 41 does or does not apply to the facts as found is a question of law and that, on the facts as found; the learned Judge was wrong in holding that Section 41 did not apply. Mr. Haider very strenuously urges that a finding that Section 41 of the Transfer of Property Act does not apply is a finding of fact which cannot be interfered within second appeal and he lays stress on the case of Jamna Das v. Uma Shanker 25 Ind. Cas. 158 : 36 A. 308 : 12 A.L.J. 411 in that case the lower Appellate Court held that Section 41 did not apply. On second appeal to this Court a Single Judge of the Court held that Section 41 of the Transfer of Property Act did apply. On the case being taken up in Letters Patent Appeal a Bench of this Court set aside that decision holding that, 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 that case bona 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" and held that "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 that Sliding or not." If the learned Judges meant to hold that the question whether Section 41 of the Transfer of Property Act applies to a given set of facts is a question of fact we cannot agree with them, but we do not think really that that is what they meant. We think that case really means this that, on the facts as found by the lower Appellate Court, which facts could not be questioned in second appeal, it was not open to this Court to say that Section 41 applies. There are a number of cases to the contrary, for instance, the case relied upon by the Trial Court viz. Khwaja Muhammad Khan v. Muhammat Ibrahim 36 A. 490 : A.W.N. (1904) 99, Now, the facts in this case are not in dispute. Since the early nineties, Habib Hasan's name alone had been recorded as the owner of this property. He has been dealing with it as his own ever since. As long ago as 1896 Habib Hasan alone mortgaged this property to the father of the present mortgagee. That mortgage has been paid off. No one ever took any exception to that mortgage. Surely Mulraj was entitled to believe, under the circumstances, that that mortgage had been properly made by Habib Hasan. Twenty-one years afterwards Habib Hasan mortgages the same property to him. He satisfies himself that Habib Hasan's name is still in the khewat as the recognised owner of the property so far as Government is concerned. We fail to see what further enquiry Mulraj should have made. What was there to put him on to enquiry or to doubt the genuineness of the position Habib Hasan had ostensibly maintained for over 25 years. Under the circumstances, on the facts astound by the Courts below, we think as an inference of law that Section 41 of the Transfer of Property Act applied and that on that ground the suit was rightly dismissed.
2. We, therefore, set aside the decree the Court below and restore that the Trial Court with costs, including in this Court fees on the higher scale.