The consent of the real owner is not required for the transfer by the ostensible owner to be binding on the real owner under Section 41 of the Transfer of Property Act.

Raj Kishore Prasad, J.

1. This appeal involves the interpretation of Sec. 41 of the Transfer of Property Act, hereinafter referred to as "the Act."

2. Before I give my view of the true meaning and interpretation of Sec. 41 of the Act, it is necessary to state a few facts and the contentions raised :by the parties before this Court.

3. The plaintiffs brought the suit out of which the present appeal arises, for declaration of their title to and possession over the disputed lands. Budhan and Mahabir, sons of Ajab Lall, were the admitted pwners of the disputed lands. Their descendants, by two registered sale deeds on 21-5-1929 and 12-1-1930. transferred the disputed lands to Most. Rajbahsi, who is defendant No. 6 in the present litigation. Rajbansi defendant No. 6, subsequently transferred her purchased lands to the plaintiffs under three registered sale deeds. On the basis of these sale deeds, the plaintiffs in their suit sought a declaration that Rajbansi, defendant No. 6, was the real owner of the disputed, lands, and, therefore, she had every right to transfer the same to the plaintiffs, and, accordingly, they had acquired title to the same by virtue of their purchase from her.

4. The suit was contested by defendant No. 1. His main defence was that Most. Rajbansi was only a farzidar of his family, and not the real owner of the disputed property, and, as such, she had no right to execute the sale deeds in favour of the plaintiffs, and, accordingly, they had acquired no title to the disputed lands.

5. The trial Judge found that Most. Rajbansi Kuer, defendant No. 6, was the real owner of the disputed lands before she sold the same to the plaintiffs. He further held that the suit was not barred oy limitation. On these findings, therefore, he decreed the plaintiffs suit.

6. On appeal by the defendants to the court of appeal below, the learned Second Additional Subordinate Judge, Arrah, reversed the findings of the first court and held that Most. Rajbansi Kuer, defendant No. 6, was really a benamidar of the family of the defendants, of which Khedaru Singh was the Karta, and, therefore, the disputed property was the joint family property of Khedaru Singh, and, as such, Most. Rajbansi Kuer had no right to execute the sale deeds in favour of the plaintiffs.

The learned Subordinate Judge further held that it was not open to the plaintiffs to seek protection of Sec. 41 of the Act, because there was no evidence to show that the persons interested in the property gave their consent to the transfer to the plaintiffs. On these findings, the learned Judge of the court of appeal below reversed the decision of the first Court, and dismissed the plaintiffs suit.

7. On second appeal to this Court by the plaintiffs, it was contended on their behalf by Mr. Lal Narain Sinha, Government Advocate, that in this appeal two questions arise :

(1) Is it established that Most. Rajbansi Kuer was a benamidar of defendant No. 1 and his family?; and,

(2) On the facts, are the defendants entitled to set up a secret title under Sec. 41 of the Transfer of Property Act?

He, however, frankly, and very rightly, conceded that the real question was the second question on which hinged the decision of the appeal.

8. The learned Government Advocate was followed by Mr. Murtaza Fazl Ali, and, he, However, laid stress on the fact that the finding that Most. Rajbansi Kuer was a benamidar of defendant No. 1 and his family is not a legal finding, which is binding on this Court. I have react the judgment of the court of appeal below, and; am not inclined to accept the contention of Mr. Murtaza Fazl Ali The question of benami is a question of fact, and, the court of appeal below has not committed any error of law in coming to that finding of fact. I would, therefore, affirm the finding of the court of appeal below that Most. Rajbansi, Kuer was a benamidar of defendant No. 1 and his family.

9. The matter, however, does not end there. The question then arises if Most. Rajba