George Knox and Piggott JJ.
1. This was a suit for a declaration that the plaintiffs appellants be declared proprietors of a certain share in mauza Taprana or in the alternative be awarded possession of the same. It appears that one Nasib Khan died some-'where about the year 1890, possessed of a share in the village in question. He left surviving a widow, Musammat Bundi, and two sons, who are the plaintiffs appellants now before us. According to the Muhammadan law, Musammat Bundi would inherit a one-eighth share in the landed property left by Nasib Khan, and the sons would take the remainder in equal shares. The appellants were minors at the time of their father's death, and during their minority Musammat Bundi not only got herself recorded as proprietor of a one-third share but proceeded in 1892 to mortgage the same to one Nihal. The latter sold his rights to one Rura Mal, who is a respondent in this case. He brought a suit on the mortgage and having obtained a decree, brought this one-third share to sale and' purchased it himself. He subsequently sold to Mohib-ullah Khan, who is the second respondent now before us. Mohib-ullah Khan, on the 1st of September, 1908, brought a suit for profits on account of this one-third shave.' This suit was not resisted by the present appellants and resulted in an ex parte decree in favour of Mohib-ullah Khan. By the present suit the plaintiffs seek to establish their right in respect of a five twenty-fourths share of the property left by Nasib Khan, being the difference between the one-eighth share which passed to Musammat Bundi by right of inheritance and the one-third share, which she mortgaged in 1892. The courts below have dismissed the suit on two grounds only. First, they have held that the decision in the suit for profits operates as res judicata so as to bar this suit under the provisions of Section 11 of the Code of Civil Procedure; secondly, they have held that the' respondent, Mohib-ullah. Khan, is protected by the provisions of Section 41 of the Transfer of Property Act. In our opinion the suit ought not to have been dismissed on either of these grounds. The plaintiffs were minors at the time of their father's death, and at the time of the mortgage in favour of Nihal which constitutes the original transfer lying at the root of the respondent's title. Under these circumstances it cannot be said that Musammat Bundi was the ostensible owner 'of this one-third share with the consent, express or implied, of the present plaintiffs. Authority for this proposition may be found in Dalibai v. Gopi Bai (1902) I.L.R. 26 Bom. 433 (436) and in Dambar Singh v. Jawitri Kunwar (1907) I.L.R. 29 All. 292 (294) With regard to the question of res judicata we do not find it necessary to determine the question of the effect of the Revenue Court's decree on the ground of the same having been passed ex parte. It is sufficient for us to say that the plaintiffs in our opinion are clearly protected by the proviso to Clause (3) of Section 201 of the Agra Tenancy Act, II of 1901. At the time when he filed his suit for profits, Mohib-ullah Khan was not a recorded co-sharer, but he had applied for mutation some months before and mutation of names was effected in his favour while the suit for profits was pending and before it had been decided. On the principle laid down by the Full Bench of this Court which recently considered this question, it is clear that, even if that suit for profits had been defended by the present appellants, Mohib-ullah could have obtained a decree in that court on the basis of the record in his name in the revenue papers on his proving that his name had been so recorded at any time before the decision of the suit. The ex parte decree passed against the present plaintiffs 'cannot put them in a worse position than they would have occupied if they had resisted the suit and the suit had been determined against them on proof that Mohib-ullah Khan, during the pendency of the suit, became a recorded co-sharer. It follows that the present suit is protected by the proviso at the end of Clause (3) of Section 201 of the Tenancy Act. We, therefore, accept this appeal, and setting aside the decrees of both the courts below, deeree the plaintiff's claim for a declaration to the extent already stated, with costs throughout.