A subsequent purchaser is not protected by the provisions of Section 41 of the Transfer of Property Act when there is no proof of negligence on the part of the mortgagee.

( 1 ) THIS appeal is from the decision of Mr. Justice A. N. Ray dismissing the plaintiff's suit for enforcement of a mortgage by deposit of title deeds. The case of the plaintiff appellant is that the defendant No. 1 Nabadwip Chandra Poddar was the owner of a piece of land containing an area of 3 cottahs 3 chittacks and 30 square feet being the northern portion of Plot No. 44 of C. I. T. Scheme No. 44-B formed out of the old premises No. 1, Grey Street, Calcutta. On or about the 18th November, 1949 the plaintiff lent and advanced to the defendant No. 1 solely for the purpose of the latter's business a sum of Rs. 13. 000/- repayable on demand with interest at 6 per cent per annum and as security for the said loan the defendant No. 1 deposited with the plaintiff at Calcutta the title deeds relating to the said property with intent to create security thereon. On or about the 22nd July 1951, the defendant No. 1 acknowledged in writing his liability for repayment of the said loan as also the said equitable mortgage created in favour of the plaintiff. It appears further that defendant No. 1 purported to execute a conveyance on the 17th April, 1953 in favour of the defendant No. 2 Srimati Brojo Mohini Roy Chow-dhury in respect of the said mortgaged property, and consequently the defendant No. 2 has been impleaded as a party to the suit. The plaintiff claims a decree for a sum of Rs. 15,844-13-4 pies and also for a declaration of charge in respect of the property mortgaged and a decree in terms of Order 34, Rule 4 in form No. 5 or 5-A of the Code of Civil Procedure.

( 2 ) THE case of the defendant No. 1 Nabadwip Chandra Poddar is that this defendant and the plaintiff were known to each other for a long time and they jointly purchased the entire plot No. 44 of C. I. T. Scheme No. 44 (B), In the matter of the said purchase the defendant entrusted the plaintiff with looking after the interest of this defendant and to get the conveyance in respect of the said premises registered in favour of this defendant and to mutate the name of this defendant in the Calcutta Collectorate. It is alleged that pursuant to this arrangement the plaintiff on behalf of the defendant got the conveyance registered in favour of the defendant and got the name of this defendant substituted in the Calcutta Collectorate and further got hold of the said conveyance from the Registration Office but did not return the same to the defendant in spite of requests and represented that the same was lost The factum of the loan and the equitable mortgage is disputed in the Written Statement and it is also denied that on the 22nd July 1951 or on any other date the defendant had made any acknowledgment in writing for repayment of the said loan or had acknowledged the said equitable mortgage. It is also stated in the written statement that the letter dated the 22nd July 1951 does not bear the signature of this defendant.

( 3 ) THE defendant No. 2 has filed a separate written statement and her case is that she purchased the plot of laud which belonged to the. defendant No. 1 for a valuable consideration and prior to the completion of the sale she had made diligent enquiries as to the whereabouts of the title deeds and further she is bona fide purchaser for valuable consideration and without notice of the plaintiff's alleged mortgage.

( 4 ) THE issues that were raised before the learned trial judge were as follows:1. Did the plaintiff lend and advance to the defendant No. 1. Rs. 13,000/- or any oilier sum on the 18th November, 1949 as alleged in paragraph 2 of the plaint? 2. Did the defendant No. 1 deposit with the plaintiff at Calcutta within the jurisdiction aforesaid title deeds relating to the property mentioned therein with intent to create security, thereon as alleged in paragraph 2 of the plaint? 3. Did the defendant No. 1 acknowledge in writing any liability as alleged in paragraph 3 of the plaint? 4. Is the defendant No. 2 a bona fide purchaser for value with