The transferee must prove reasonable care and good faith, and the possession of the plaintiff's brothers must be adverse to her knowledge for the claim to be barred by limitation.

Kinkhede, A J C—One Sirdarkhan, who owned Survey No. 23 of mouza Shirajgaon, died several years ago leaving behind two sons Samdarkhan and Maste-khan and one daughter named Chandbi who is plaintiff-respondent in this case. The two brothers sold the field to one Baliram on 19th February 1922 and Baliram sold it to defendant-appellant on 10th February 1923. Plaintiff claims 1/5th share in that field. The defendant urged in the first Court that the plaintiff's claim was barred by limitation and also to protection under Section 41 of the Transfer of Property Act. The defence prevailed in the first Court and the suit was dismissed and the plaintiff therefore went up in appeal to the Additional District Judge, Amraoti. The Additional District Judge allowed the plaintiff's appeal and decreed the claim. It is against this decree that the defendant has come up in second appeal.

2. The Additional District Judge formulated the following points for consideration as being necessary to be established in a case coming under Section 41 of the Transfer of Property Act. The transferee has to prove : (1) that the real owner allowed another person to hold himself out as the owner of the field; (2) that the transferee purchased it for value from the apparent owner in the belief that he was the real owner, and that the real owner has to prove (3) either direct or constructive notice of the real title, or (4) circumstances which would put the transferee on inquiry which if prosecuted with due care and attention, would lead to the discovery of the real title.

3. It will thus be seen that it is of the essence of Section 41 that the conduct of the real owner must induce a belief in the transferee that his transferor had power to make the transfer. The Additional District Judge was right in the view which he took that mutation of names by itself created no proprietary title : see Chokhey Singh v. Jote Singh, 1909 31 ILR(All) 73. Mutation is merely'a statement of the facts which existed as to the possession of the property. Consequently it follows that neither the mutation entry nor the entry in the Record of Rights can supply the place of a title-deed, and a purchaser who acts upon such an entry as evidence of title does so at his risk; and it enhances the burden of proof which law lays on him to prove that he acted in good faith. If the title of the transferrers was based upon mere prior transfers and they had the custody of the title-deeds showing them as the apparent purchasers of the property, the matter would have been different, but here the title was by inheritance from a father and it was incumbent on the transferees to have used reasonable care in ascertaining whether the transferrers were the only persons on whom inheritance devolved or there were some other co-heirs including females. The fact that the transferrers were Mahomedans ought to have put the present defendant and his predecessors in interest on enquiry as to whether there was a female heir in addition to the two transferrers. The lower appellate Court has given very good reasons for holding that the original purchaser wholly avoided the knowledge of the vendor's title. This was nothing short of wilful abstention from enquiry upon a crucial point which affected the degree of reasonable care and good faith, which is necessary to be established by a person claiming the protection of Section 41, Transfer of Property Act. The finding as to absence of reasonable care and good faith on the part of the appellant and his predecessor is a finding of fact and I cannot go behind it in second appeal.

4. There is yet another reason why I should be disinclined to interfere in second appeal, and it is that the present appellant has, on the facts found, failed to prove that the possession of the plaintiff's two brothers was in any way adverse to her knowledge for over 12 years prior to the suit. On the contrary the lower appellate Court's finding is that until Baliram purchased the field in 19