This appeal arises out of a suit brought by the appellants to redeem an usufructuary mortgage executed by their father in favour of one Madasami Pillai on 21st March, 1877. The respondents 1 to 5 and 7 are the heirs of Madasami Pillai and the 6th respondent is the purchaser of the property from them. Both the Courts below have dismissed the suit on the ground firstly that the mortgagor's title was extinguished by the adverse position of Madasami and his successors for over the statutory period, and secondly, that, in any case, the 6th respondent acquired a valid title by estoppel as against the appellants under S. 41 of the Transfer of Property Act as a bona fide purchaser for value. Mr. Sitharama Rao, the learned counsel for the appellants, contests the validity of both these conclusions in this appeal.
The facts so far as they are material for the purpose of the appeal may be briefly stated. The mortgage deed, marked as Ex. A in the case, provided that:—
“Before 30th Vaigasi of Bahudanya year (11th June 1878), I shall pay the amount and redeem the land. In case of failure to make payment on that due date, I shall present a petition for relinquishment and get the patta entered in your name, in respect of the aforesaid land.”
The mortgagor did not redeem by the due date and it appears from Ex. IX, a copy of a statement made by Madasami in 1897, that the mortgagor sold the property to him and filed a patta transfer petition for the issue of patta in Madasami's name in respect of the property. It has been found by both the lower Courts that pattas had stood in the names of Madasami and his heirs at least from 1897 and that these persons had been in possession and enjoyment throughout, dealing with the property as if it was their own by mortgaging or leasing out the same from time to time till they sold it to the 6th respondent under Ex. II on 27th May 1918.
On the question of the 6th respondent's title by estoppel under S. 41 of the Transfer of Property Act, Mr. Sitharama Rao argued that the mere existence of patta in the name of Madasami Pillai cannot be taken as showing that he had title to the property as patta is not evidence of title and that if the 6th respondent had taken reasonable care to ascertain whether his transferors had power to make the transfer, he would have found that they had only a mortgagee's interest and nothing more in the property, assuming, of course, for the purpose of this argument, that the mortgagor's title was not extinguished by adverse possession. Reliance was placed on Merwanji Muncherji Cama v. Secretary of State for India (1) where their Lordships of the Privy Council held that an entry as to the tenure of a certain land in a rent roll maintained by the Collector of Bombay in accordance with the provisions of the Bombay City Land Revenue Act did not create any estoppel against the Government, having regard to the object and purposes for which the statute required the rent rolls to be maintained. The learned Counsel also cited Karter Singh v. Mst. Mehrnishen (2), [entry in Kasra Paimash]; Balasidhantam v. Perumal Chetti (3) (entry in Collector's certificate for quit rent purposes) and Partap Chand v. Saiyida Bibi (4) (entry in zamin revenue papers) to show that the mere entry of the name of a person as owner of certain property in such accounts or records cannot be regarded as sufficient to induce others to believe that he was the ostensible owner for the purposes of S. 41 of the Transfer of Property Act. This contention, in my opinion, cannot be accepted. Having regard to the provisions of Chap. IV of the Madras Estates Land Act, a patta granted by a landholder in respect of a ryot's holding is strong prima facie evidence of title and thus stands on an essentially different footing from the entry of a person's name in such accounts or records as are mentioned in the cases referred to above.
As pointed out by their Lordships of the Privy Council in Raja Srinath v. Maharaja Pratap (5) a patta granted by a zamindar to his ryot is practically a title deed to the latter in respect of his holding See also Donganna v. Jammanna (6) where it is recognised that patta is evidence of title. The decisions cited by Mr. Sitharama Rao which are largely based on their own peculiar facts are not therefore applicable to this case. The question whether a person has taken reasonable care to ascertain that his transferor had power to make the transfer, so as to get the protection of S. 41 of the Transfer of Property Act, is one of fact and has to be decided with reference to the circumstances of each case, and the findings of the Courts below that in this case the 6th respondent took all reasonable care to satisfy himself that his vendors had title to convey before he purchased the property under Ex. II are amply supported by the circumstances and the evidence referred to in their judgments.
As this is sufficient to dispose of the appeal, it is unnecessary to consider the question whether the possession of Madasami and his successors subsequent to the oral sale and transfer of patta could be deemed to have become adverse to the mortgagor so as to extinguish the latter's title to the property after 12 years.
The appeal therefore fails and is dismissed with costs of respondents 6 and 8.
Leave refused.
Appeal dismissed.
N.R.R