Rowland, J.The subject-matter of the suit giving rise to this appeal was one room in a house in Ranchi town bearing Plot No. 439 and holding No. 223. The plaintiff-respondents bought this house in 1931 from Musammat Bhuini. Bhuini had been the wife of Damri Dusadh who died in 1926. They had a daughter Jasoda who is defendant No. 2 and is married to Kuar Ram Dusadh, defendant No. 1. The house was purchased in 1908 for Rs. 60, the deed being taken in the name of Bhuini, and there has been controversy whether she or Damri was the real purchaser. The Munsif held that the real purchaser was Damri and the Judicial Commissioner thought that this was doubtful. After Damris death there was in 1929 a Municipal Survey and Record of Rights was prepared. The house was entered in the name of Bhuini. The sale deed by Bhuini to the plaintiffs was, as I have said, in 1931 and in 1932 the brothers of Damri brought a suit to set aside the transfer alleging the house to have been Damris and not Bhuinis and alleging themselves to be the reversioners of Damri. In deciding the suk, the Court came to a finding that the house had been Damris but that his brothers were not the next reversioners, the daughter being a nearer heir and, therefore, they could get no relief.

2. The present suit was instituted by the purchasers from Bhuini on November 26, 1932, alleging that they had bought the house from Bnuini and had got possession except for one room which the defendants were occupying. They allowed the defendants to remain as tenants in one room at Re. 1-4-0 rent per mon h. They are now suing to eject the defendants after notice to quit. Tne plaintiffs claimed the house, alleging first, that Bhuini was the purchaser in 1908 and the absolute owner of it and that by purchase from her they had acquired an indefeasible title. In the alternative they alleged that as Damris widow she was his next heir and had those powers which a Hindu widow has to alienate property for purposes of necessity and that the transfer was for necessity. The Muasif dismissed the suit being of opinion that the house was purchased by Damri from his own money ; that un his death Bhuini was not legally entitled to inherit the property having become unchaste and left his protection ; and, thirdly, that legal necessity for selling the house to the plaintiffs was not established. The learned-Judicial Commissioner expressed himself ab doubtful of the correctness of the finding of the Munsif on the first issue but has not recorded any finding. On the second point, he has come to no finding whether Musammat Bhuini was entitled to inherit Damris property after his death and on the third question he has not examined the evidence of legal necessity at all. He regards the case &B concluded by the provisions of Section 41, Transfer of Property Act, being of opinion that the defendants of this suit held out Musammat Bhuini to be the ostensible owner of the property and, therefore, are estopped from impeaching a transfer by her. It is unfortunate that the learned Judicial Commissioner has so misconceived the functions of a first Court of Appeal. The primary duty of the first Appellate Court is to determine all the questions of fact which are necessary for the decision of the case, and it is desirable to determine all the issues of fact on which a decision has been given by the Court of first instance. By doing so, the High Court in second appeal is enabled to apply the law to a set of ascertained facts; and if this is not done, there is every likelihood of the case having to be remanded for finding on the issues which have been left open. A distinguished Judge once said; "Take care of the facts and the law will take care of itself" and though this may be an overstatement, it is sound advice in nine cases out of ten. In second appeal it is contended that no case u/s 41, Transfer of Property Act, was set up in the plaint, and that if it had been, the learned Judicial Commissioner has failed to appreciate the considerations which ought to have been borne in mind in coming to a finding whether Section 41 was applicable to the facts of the case before him. The learned Judicial Commissioner has quoted from Section 41, Transfer of Property Act, but in applying the proviso regarding bona fide action of the transferee, he has not observed the importance of the words "after taking reasonable care to ascertain that the transferor had power to make thetransfer". In Nageshar Prasad v. Pateshri Partab Narain Singh 20 CWN 265 : 34 Ind. Cas. 673 : AIR 1915 PC 103 : 3 LW 454 : (1916) 1 MWN 142 the Privy Council approved a decision of the High Court in which it had been observed that:

The learned Subordinate Judge apparently relies on the provisions of Section 41, 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 inquiry whatever to ascertain the title of his mortgagor, Kudra Naraia Singh.

3. Similarly in Sheogobind Ram Barai and Another Vs. Anwar Ali and Another, , after observing that the elements necessary to constitute equitable estoppel u/s 41, Transfer of Property-Act, should be clearly pleaded in the written statement. Jwala Prasad, J., observed that:

Proof of Inquiry is an essential element and a preliminary condition enjoined by Section 41 in order to protect a bona fide purchaser for value from an ostensible owner.... The mere keeping of ones name over a property either in Government records or in private papers does not relieve the purchaser from the ostensible owner from the duty and responsibility of making an inquiry into the title of that owner.

4. As between members of a joint Hindu family the fact that the name of one member rather than that of another or of all the members is used in acquisition of property, has repeatedly been held not to amount to the holding out of that member as the ostensible owner, and a person dealing with one member of a Hindu family can hardly say that be was misled unless he proves that he has made full inquiries and could not ascertain his title. Of course, as pointed out by the Judicial Committee in Ram Coomar Koondoo v. John & Maria McQueen IA Sup. Vol. 40 : 11 BLE 46 : 18 WR 166 : 3 Sar. 160 it is not enough to assert generally that inquiries should be made, or that a prudent man should have made further inquiries, but some specific circumstances should be pointed out as the starting point of an inquiry which might be expected to lead to some result. Now so far as the title to this properly in Damns lifetime was concerned, there were the following fads known or capable of being known to the plaintiffs; first that Damri had been in possession; secondly, that Bhuini had left Damri and been out of possession since 1916 or so while Damri remained in possession: thirdly, that a creditor of Bhuini in 1916 had attached the house for her debt, but Damri brought a claim case and obtained a decision that the house was his; fourthly, there was the fact that the house had been mortgaged to one Chhedi Hajam and not by Bhuini only but by Bhuini and Damri both, which is exactly what one would expect if the former had been benamidar and the latter the real owner.

5. Then there is the fact that apparently Bhuini was unable to make over the original sale deed to the plaintiffs and the judgments of the Courts below do not show that any explanation was offered for its non-production. Indeed it seems clear that so far as the dealings with the property in Damris lifetime were concerned, there was nothing which could amount to a representation or a holding out that Bhuini was the ostensible owner. The lower Appellate Court ought to have corse to a definite finding as to who was the real owner, but indeed as between Damri and Bhuini the matter was conclusively decided by the claim case in 1916. The decision which was in favour of Damris title became final on the failure of Bhuini to institute a suit within one year to set it aside. The position after Damris death is different. The question propounded by the Munsif was whether on Damris death she was entitled to succeed to his property; but it would have been more appropriate to inquire whether she did in fact succeed to his property, that is to say, not only whether she had become liable to forfeit her right of inheritance but whether it was in fact forfeited. For the fact of the house having been the property of Damri till his death is by no means inconsistent with Bhuini having succeeded to it thereafter as in the ordinary way a Hindu widow does succeed to the possession of the property of her husband. If she was allowed so to succeed and enter into his property, it would hardly avail the defendants to impeach a transaction entered into by her on the ground that she was by reason of previous unchastity not lawfully entitled to succeed, and if this was so, Section 41 might be of assistance to the plaintiffs to this extent, that the daughter by her conduct led plaintiffs to believe that Bhuini as widow of Damri was the person entitled1 to present possession of the property during her lifetime. It is unfortunate that neither of the Courts have come to a finding as to whether Bhuini did in fact succeed to Damris property including the house. The learned Judicial Commissioner thinks that there was a representation as to title because defendant No. 2, Jasoda, the daughter of Bhuini, is said to have given her thumb-impression on the sale deed of the plaintiffs, and the learned Judicial Commissioner regards this as in, some way establishing her knowledge of and consent to the transaction. This view, though popularly held in some backward tracts of the country, is contrary to a long line of decisions both of the High Courts and of the Judicial Committee of the Privy Council. In Pandurang Krishnaji v. Markandeya Tukaram 49 C 334 : 65 Ind. Cas. 954 : AIR 1922 PC 20 : 49 IA 16 : 26 CWN 201 : 3 UPLR (PC) 85 : 20 ALJ 305 : 42 MLJ 436 : 10 LW 486 : 30 MLT 249 : 35 CLJ 409 : 24 Bom. LR 557 : 18 NLR 1 the Judicial Committee have observed that:

They think it is desirable to emphasize once more that attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys neither directly nor by implication any knowldege of the contents of the document, and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects.

6. And their Lordships quoted, only to condemn, the observations of the learned Judicial Commissioners Court. The learned Judges had said:

We think that attestation by a person who has or claims any interest in the property covered by the document must be treated in the absence of any evidence to show that he was tricked into making the signature prima facie as a representation by him that the title recited in the document is true and will not be disputed by him as against the obligee under the document.

7. The Judicial Committee commented

Their Lordships are bound to point out that that, is an entire misapprehension of the law of estoppel, and if that misapprehension be not corrected, much mischief may be done in the administration of justice in India.

8. And they said

If in fact there be a practice, as is suggested from the evidence, that when the consent of parties to transactions is required, it can be obtained by inducing them by one means or another, to attest a signature of the executing parties, the sooner that practice is discontinued the better it will be for the straightforward dealing essential in all business matters.

9. Of course, there may be cases in which attestation is made in circumstances when coupled with other evidence of consent and acquiescence in the execution of a document; it is relevant to the question whether the attesting witness had knowledge of the contents and agreed to them.

10. For instance, in Bhagwan Singh v. Ujagar Singh 32 CWN 538 : 107 Ind. Cas. 20 : AIR 1928 PC 20 : 30 Bom. LR 267 : 47 CLJ 189 : 54 MLJ 254 : 29 PLR 182 : 32 CWN 538 : ILT 40 Lah. 49 : 27 LW 672 : 26 ALJ 553 their Lordships found that besides the fact of his attestation of the deed there was abundant evidence to prove aliunde that Bhagwan Singh had consented to and acquiesced in the execution of it. There was evidence to show that he not only consented to the transaction but took an active part in the consultations which resulted in the mortgage.

11. In the present case there was evidence of other matters bearing on the question whether Jasoda had knowingly acquiesced in Bhuini acting us ostensible owner and transferring the property: but the learned Judicial Commissioner has unfortunately abstained from telling us what he thinks of this evidence. I repeat that it is above all things desirable that the Court of first appeal should determine all the necessary questions of fact. The learned Judicial Commissioner has referred to the evidence that in 1929 an enty in the Municipal Survey register was made in the name of. Bhuini. Her name had also been mutated in the sharista of the landlords and she paid Municipal tax and rent. On the other hand, none of these matters is conclusive when it is found as both sides are agreed in evidence that immediately before the transaction of sale both the plaintiffs and. defendants Nos. 1 and 2 were residing in the house, Bhuini was also there. It is extremely unlikely, that any of these residents were in ignorance as to who was the person in the possession of the house as ostensible owner. The plaintiffs were in fact there as tenants and they must have known to whom they were paying rent. If they paid rent to defendant No. 2, nothing in the entries in the Municial register or the landlords Sharista could deceive them and whatever else is clear regarding Section 115, Evidence Act, or Section 41, Transfer of Property Act, one thing is certain; that there can be no estoppel in favour of a person who is not deceived. Neither of the Courts below have come to a finding as to whether it was Bhuini or defendant No. 2 who was in receipt of the rent from the plaintiffs.

12. I am of opinion therefore that the appeal must go back to the learned Judicial Commissioner for findings whether Musammat Bhuini had inherited the property or had forfeited her rights by reason of her having left Damri; whether with her daughters consent she was held out as the ostensible owner and plaintiffs were led to believe her to be the real owner; and whether the purchaser had taken reasonable care and.6on.a fide believed in her title. The remand will be under Order XLI, Rule 25, Civil Procedure Code, and the record should be returned to this Court as soon as possible with the findings. It will be for the Court below to decide whether to take further evidence or not regard being had to the provisions of Order XLI, Rule 27.