JUDGMENT - A.P. SHAH, J.:---Original defendant Nos. 3 to 6 and 2-A to 2-D have taken exception to a decree for possession of a house property by way of this letters patent appeal. Briefly stated, the facts are that the plaintiff sued the defendants to recover possession of the suit property on the basis of his title. According to the plaintiff, on May 19, 1970, he purchased the suit property for a consideration of Rs. 12,000/- from the 1st defendant. The 2nd defendant, deceased Laxman Sakharam Salvi, was the brother of the 1st defendant, but given in adoption in Salvi family. The defendants 3 to 6 and 2-A to 2-D are the legal representatives of the 2nd defendant. According to the plaintiff, the suit property was purchased by the 1st defendant benami in the name of the 2nd defendant on July 31, 1930 from Chhatrapati Maharaja of Kolhapur. In the alternative the plaintiff alleged that if the 2nd defendant was the real owner then the 1st defendant was the ostensible owner of the suit property and that he purchased the same from the 1st respondent bona fide for valuable consideration without notice of the rights of the 2nd defendant. In the alternative the plaintiff also alleged that in case it is held that the suit property was of the joint ownership of the 1st and 2nd defendant, the portion purchased by him from the 1st defendant be allotted to the share of the 1st defendant. On these allegations the plaintiff claimed possession of the property and past and future mesne profits.

2. The 1st defendant by his written statement (Exh. 69) supported the suit claim of the plaintiff and contended that he alone was the owner of the property sold to the plaintiff. The legal representatives of the 2nd defendant by their written statements (Exhs. 26 and 40) contended that the suit property is self-acquired property of their father and that the 1st defendant has nothing to do with the ownership of the property and therefore the sale deed executed by the 1st defendant in favour of the plaintiff is not binding on them.

3. The trial Court, upon consideration of the material produced by the parties, held inter alia that there is no evidence to show that the 1st defendant was the real purchaser of the suit property and with his money purchased the same in the name of the 2nd defendant benami. The trial Court, however, held that the 1st defendant was the ostensible owner of the suit property with the consent of the 2nd defendant and that the plaintiff is bona fide purchaser of the property for value without notice and thus entitled to the protection afforded by section 41 of the Transfer of Property Act, 1882 ("Act" for short). In that view of the matter, the trial Court passed a decree for possession giving liberty to the plaintiff to apply for future mesne profit from the date of the suit till delivery of possession under Order 20, Rule 12(1)(c) of Code of Civil Procedure.

4. In appeal preferred by the defendants 3 to 6 and 2-A to 2-D, who are the present appellants, the learned Single Judge was pleased to confirm the findings of the trial Court holding that all the ingredients of section 41 of the said Act, namely, an ostensible ownership with the consent of the real owner, the transfer for consideration and good faith as well as reasonable care to ascertain that the transferor has a power to transfer the property are satisfied.

5. Mr. Abhyankar on behalf of the appellants urged at the bar that the plaintiff has given a go by to his original case of a benami purchase of the property in the name of the 2nd defendant and has based the case entirely on the provisions of section 41 of the said Act. Mr. Abhyankar, however, urged that section 41 of the said Act being an exception to the general rule, that a person cannot confer a better title than he has, if the purchaser had knowledge that the title of his transferor was in dispute and that he had taken a risk in purchasing the same, it is not possible to hold that he had purchased the property in go

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