The success or failure of a plea under Sec. 41 of the Transfer of Property Act depends on findings of facts which must be alleged in the pleadings.

Ramratna Singh, J.

1. The plaintiffs have preferred this appeal against the judgment and the decree of the Additional District Judge of Motihari confirming the judgment and the decree of an Additional Subordinate Judge in a suit for a declaration that a sale deed dated the 2nd January, 1939 executed by Rajbansi (defendant No. 4) in favour of defendants 1 and 2 in respect of land measuring 18 bighas 15 kathas and odd was void and not binding on the plaintiffs. The facts admitted or established are these. One Tapeshwar Singh had two wives. The plaintiffs were born through the second wife; and Rajbansi Singh (defendant No. 4), who died during the pendency of the present appeal was born through the first wife. Tapeshwar Singh died in 1916, but the family remained joint till 1921. The subject-matter of the suit was acquired in 1914 in the name of Rajbansi Singh. On the 10th August, 1918, this land was given in usufructuary mortgage for Rs. 2,000 to defendant No. 3 under a registered bond executed by Rajbansi, and, after the sale deed dated the 2nd January, 1939, defendants 1 and 2 redeemed this mortgage and came into possession of the property in suit.

2. The plaintiffs claimed that it was a joint family property though acquired in the name of Rajbansi Singh and, therefore, they had two-thirds share therein; but, without their knowledge, Rajbansi conveyed the same to defendants 1 and 2. They further said that the sale deed was illegal on account of the fact that a fraud on registration had been committed by including a small piece of land said to be situated within the jurisdiction of the Sub-Registry office where it was registered. Hence, they prayed to be put in joint possession of the property along with defendants 1 and 2, or, in the alternative, for a decree for a sum of Rs 1333/5/4, being their two-thirds share of the price.

3. Defendants 1 and 2 only appeared and contested the suit. They asserted that the disputed property was the self-acquired property of defendant No. 4; and the sale deed in their favour was a valid document for consideration which was paid to defendant No. 4.

4. The learned Additional Subordinate Judge rejected the plaintiffs case of fraud on registration; but he found that the disputed property was the self-acquired property of defendant No. 4 and dismissed the suit. On appeal the learned Additional District Judge agreed with the Additional Subordinate Judge in respect of the plea of fraud on registration; but he rejected the plea of self-acquisition and found that the disputed property belonged to the joint family consisting of Tapeshwar Singh and his three sons. He, however, dismissed the appeal on the ground that the interest of the contesting defendants in the suit property was protected by the provisions of Sec. 41 of the Transfer of Property Act.

5. The only ground urged on behalf of the appellants is that the lower appellate court was absolutely unjustified in applying the provisions of Sec. 41 of the Transfer of Property Act; and this ground must be upheld. It is well settled that the success or failure of a plea under Sec. 41 depends on findings of facts which must be alleged in the pleadings. The reason is obvious. Unless a party pleads facts to make out a case under this section, the other party is taken by surprise, inasmuch as he is unable to adduce any evidence to demolish such a plea. It is enough to refer to the decisions in Lal Mohan Prasad V/s. Govind Sahu, AIR 1940 Pat 620 and Sm. Parbati Devi V/s. Kashmirilal Sarma, AIR 1959 Cal 69 in support of this principle.

In the present case, the respondents in whose favour the lower appellate court has applied Sec. 41 did not even mention Sec. 41 of the Transfer of Property Act in the written statement. Nor did they plead waiver, estoppel or acquiescence. Consequently no issue was raised on this point. Even during the hearing of the suit the parties adduced evidence only on the question whether the suit property was the self-acquisition