JUDGMENT : BANERJI, J. 1. This appeal arises out of a suit brought by the plaintiff-respondent for sale upon a mortgage executed by one Rudra Narain Singh on the 21st of January, 1895. The property which the plaintiffs seek to sell for realisation of the amount of the mortgage is a share in the village Saondih. The plaintiffs’ allegation is that this village belonged to Babu Chet Singh and was sold by him to his wife Dulhin Rup Kunwari in the year 1847; that Dulhin Rup Kunvvari was the owner of the property and continued to be so till her death in 1887, and that upon her death it was inherited by Rudra Narain Singh as the next heir to her husband, he being the nephew of Chet Singh, One Bishun Shukul obtained a money decree against Dulhin Rup Kunwari and in execution of it caused the property in question to be attached and advertised for sale. Before the sale could take place, however, Dulhin Rup Kunwari died, and after her death Rudra Narain Singh first executed a usufructuary mortgage on the 14th of March, 1893, and subsequently, in lieu of the amount secured by that mortgage, the mortgage of the 21st of January, 1895, on which the present suit is based. It is said that with the money raised by Rudra Narain Singh he discharged Rup Kunwari's debt to Bishun Shukul, repaid other debts and defrayed the expenses of her Gaya Shradh. The defendant, Raja Pateshri Partab Narain Singh, is the Raja of Basti. He brought a suit against Rudra Narain Singh for possession of several villages, one of which was the village Saondih. The defendants to that suit were Rudra Narain Singh and various transferees of the property including the present plaintiff. He claimed a declaration that he was entitled to the property and he prayed for possession of it. His claim was dismissed by the court of first instance but this Court decreed it, and the decree of this Court has been affirmed by their Lordships of the Privy Council. In that suit it was held that by virtue of a saprudnama, dated the 21st of March, 1848, executed by Chet Singh and a will of Musammat Rup Kunwari made by her in 1858, the Raja of Basti became entitled to the property held by Rup Kunwari, and that Rudra Narain Singh had no right to it. In that suit it was held that by virtue of a saprudnama, dated the 21st of March, 1848, executed by Chet Singh and a will of Musammat Rup Kunwari made by her in 1858, the Raja of Basti became entitled to the property held by Rup Kunwari, and that Rudra Narain Singh had no right to it. In the present suit the plaintiff seeks to go behind the decision in that suit. As has been stated above, he was placed in the array of defendants. In the 29th paragraph of his written statement he contended that the then plaintiff, that is, the present appellant, the Raja of Basti, had no right whatever to question the validity of the transfers made in his favour. He referred in specific terms to the transfers made by Dulhin Rup Kunwari and the hypothecation of the disputed villages by the defendant first party, namely, Rudra Narain Singh. An issue was framed to the effect whether the court fee was insufficient, the suit being for possession by avoidance of the transfers made by Rup Kunwari and Rudra Narain Singh. This issue proceeded on the assumption that the suit was also a suit to avoid the transfers made in favour of the present plaintiff. The issue was decided by the court of first instance against the defendants to that suit and no exception was taken to that decision in the appellate court. The result of the final decision in that suit was, that the present appellant, the plaintiff to that suit, was declared entitled to the property claimed by him, and it was farther declared that he had a right to recover possession of it from Rudra Narain Singh who was then in possession. The question of the title of the plaintiff to that suit was one of the material questions in the case and it was determined in favour of the plaintiff against the present plaintiff who was a party to the suit. It is true that no specific mention of the mortgage now in question was made in the judgment in that suit, but we think the present plaintiff, as defendant, did raise the question of the validity of the mortgage in his favour and was entitled to do so with a view to resist the plaintiff's claim for establishment of his title. He could assert, as he does now, that by reason of the operation of the rule of estoppel, the then plaintiff, the Raja of Basti, was precluded from setting up his right to the property mortgaged to him; but he did not do so. We think that it is too late for him now to assert that the decision in the former suit to which he was a party and which has become conclusive as between all persons who were parties to it, should be ignored in the present suit and the question of title of the appellant, Raja Pateshri Partab Narain Singh, should be considered and determined independently of that judgment. It having been held between the parties to the present suit that Raja Pateshri Partab Narain Singh and not Rudra Narain Singh is entitled to the property in question, it was not, in our opinion, open to the court in this case to hold otherwise. 2. On the merits also we are of opinion that the plaintiffs have no case against the appellant, Raja Pateshri Partab Narain Singh. As we have said above, and as was found in the previous suit, the Raja of Basti acquired an absolute interest in the property held by Dulhin Rup Kunwari by virtue of the supradnama of 1848, and the will of Rup Kunwari of 1858. It may be that the supradnama is not binding on Rup Kunwari as she was not a party to it and as a sale-deed had been executed in her favour before the date of the supradnama; but the will was made by her, and by virtue of it Raja Sitla Bakhsh Singh, the father of the appellant, Raja Pateshri Partab Narain Singh, became the owner of the property upon her death. 3. She died in 1887, and therefore on the date on which the mortgage now in question was executed, the owner of the property was Raja Sitla Baksh Singh or the appellant, Raja Pateshri Partab Narain Singh and not Rudra Narain Singh, who made the mortgage. 4. The court below was of opinion that the mortgage is binding on the appellant inasmuch as Rudra Narain Singh's name was entered in the Revenue papers after the death of Rup Kunwari, and he was the ostensible owner of the property. 4. The court below was of opinion that the mortgage is binding on the appellant inasmuch as Rudra Narain Singh's name was entered in the Revenue papers after the death of Rup Kunwari, and he was the ostensible owner of the property. The learned Subordinate Judge apparently relies on the provisions of section 41 of the Transfer of Property Act, but he overlooks the proviso to that section, which is to the effect that a transferee from an ostensible owner can defeat the real owner only if after taking reasonable care to ascertain that the transferor had power to make the transfer, he acted in good faith. There is nothing in this case to show that the plaintiff made any enquiry whatever to ascertain the title of his mortgagor, Rudra Narain Singh. It is true, the name of Rudra Narain Singh was entered in the Revenue papers, but if enquiry had been made, it would have appeared that at the time when mutation of names was applied for, objections were preferred on behalf of the Raja of Basti and that the name of Rudra Narain Singh was entered simply because he was in possession. Further enquiry as to Rudra Narain's title would have led to the discovery of the fact that there was a will, by virtue of which the Raja of Basti was the owner of the property after the death of Rup Kunwari. It cannot be said that the name of Rudra Narain Singh was entered as ostensible owner with the consent of the real owner, the Raja of Basti. On the contrary, his name was entered in spite of opposition put forward by the Raja. The present plaintiff is a person who has been lending money to the family for a long time. He resides in the same locality and was apparently acquainted with all the circumstances of the families concerned. He cannot, therefore, claim to be a bona fide transferee without notice so as to be in a position to defeat the title of the real owner. 5. The only other ground on which the learned Subordinate Judge has decreed the plaintiff's claim is, that the money which the plaintiff advanced to Rudra Narain Singh was applied to the discharge of debts due by Rup Kunwari. That circumstance, however, would not make a mortgage made by Rudra Narain Singh binding on the appellant. 6. 5. The only other ground on which the learned Subordinate Judge has decreed the plaintiff's claim is, that the money which the plaintiff advanced to Rudra Narain Singh was applied to the discharge of debts due by Rup Kunwari. That circumstance, however, would not make a mortgage made by Rudra Narain Singh binding on the appellant. 6. For the above reasons we are of opinion that the plaintiffs are not entitled to a decree against the appellants for sale of the village Saondih. We accordingly allow the appeal, and so far vary the decree of the court below that we dismiss the suit for sale of the village Saondih as against the appellants. The appellants will have their costs in both courts.