1. This appeal arises out of a suit for sale brought by one of the appellants Eshaq Lal, and one Ramji Lal who is now represented by the other appellants, for recovery of money on foot of a mortgage bond dated 6th March 1919, executed by the respondent Dulla. The suit has been dismissed on the ground that Dulla had no right to the property when he made the mortgage. Dulla did not appear in the case, but the respondent Harphul (who has since died and whose legal representatives have been brought on the record) alone contested the suit. The facts are briefly these:
One Bhure had two daughters Bhagwanti and Naoli. Bhagwanti's son is Dulla and Naoli's son is Harphul. Mt. Bhagwanti died sometime about 1907 and on her share of her father's property Dulla's name was recorded. Naoli died shortly before the institution of the suit and Harphul's name was recorded in her place. Dulla has made a gift of his half share in the property in favour of Harphul. It is also a fact that after the execution of the mortgage deed in suit, Mt. Naoli brought a suit against Dulla to recover the half share recorded in the name of Dulla in the khewat and got a decree.
2. The defence set up by Harphul was inter alia, that Dulla was not 'competent to mortgage the property in suit because Naoli was the owner of the property at the date of the mortgage. There can be no doubt that such was the case, but the plaintiffs rely on Section 43, T.P. Act. The learned Subordinate Judge was of opinion that as the plaintiffs knew the state of the family affairs, there could be no equity in favour of the plaintiffs and Harphul was not estopped from pleading want of title in Dulla.
3. It may be conceded that the mortgagees knew at the date of the mortgage, that Bhure had two daughters, that one of the daughters was dead and the name of her son Dulla was recorded in the khewat. They also knew that Mt. Naoli was alive. But from this knowledge, it does not necessarily follow that that the mortgagees knew and believed that Dulla was not the owner of the property which was recorded in Dulla's name. We have already said that Dulla's name was recorded in the khewat. One of the plaintiffs went into the witness-box and he swore that he consulted the patwari at the date of the mortgage.
4. If as we believe was the ease the plaintiffs honestly believed that Dulla was entitled to one-half share, in the right of his mother, the plaintiffs must have been acting honestly in the transaction. In the circumstances, they ought to be entitled to the benefit of Section 43, T.P. Act. The case of Mulraj v. Indar Singh : AIR1926All102 is clearly distinguishable from the facts of this case.
5. We hold that the plaintiffs acted on the erroneous represetation that Dulla was entitled to the property. Dulla having inherited the property on the death of Naoli, the plaintiffs are entitled to bring that share to sale.
6. In the result we allow the appeal, set aside the decree of the Court below and decree the plaintiffs, suit with costs throughout. A decree under Order 34, Rule 4, Civil P.C., will be prepared. Six months are allowed to pay Interest at the stipulated rate will be paid during six months and thereafter it will be paid at six per cent per annum till recovery.