Sir Dinshah Mulla.—

The property in dispute is a serai situated outside the Katcheri Gate of the Peshawar city, which, with some lands and buildings adjoining it, belonged jointly as to one moiety to Sadhu Ram and his sons, who were members of a joint Hindu family, and as to the other to Lachmi, widow of Mul Chand. In the jamabandi for the year 1895-96 these properties were entered in the names of Sadhu Ram and Lachmi as owners.

On 24th January 1900, Sadhu Ram executed a mortgage with possession of his interest in the serai and a house in favour of appellant 1 and two others to secure payment of Rs. 7,500 advanced to him by the mortgagees.

Shortly afterwards Sadhu Ram contracted to sell his interest in the serai and the lands and buildings to Pir Moti Nath. The contract was not carried out and a suit was brought by Pir Moti Nath against Sadhu Ram, Rs. 1,292-8-0 being claimed as damages. The suit was compromised through the intervention of a jirgah, the final arrangement being that Sadhu Ram should make a gift of the serai and the lands and buildings to a Dargah, known as Dargah Pir Rattan Nath, and that the Dargah should compensate Pir Moti Nath by a payment of Rs. 1,200, and contribute Rs. 5,000 towards payment of the mortgage debt.

In accordance with the compromise Sadhu Ram executed a deed of gift on 27th August 1904, in favour of the Dargah. The deed was duly registered. In 1909 the Dargah applied for mutation as purchaser of the serai, and there is a note in the jamabandi for the year 1909-10 that the property was sold to the Dargah and that a revenue mutation had been entered up.

On 21st June 1911, Sadhu Ram purported to sell the equity of redemption in the serai and the house to the mortgagees for Rs. 9,484-5-3.

This sale was impeached by the sons of Sadhu Ram, while the latter was still alive, with the result that the mortgagees reconveyed the house to the sons, and the sons executed a release on 24th March 1912, of their interest in the serai in favour of the mortgagees.

Subsequently, on a partition amongst the mortgagees and the heirs of such of them as were dead, the serai came to the share of some of them, who sold it to appellant 4 in 1924.

On 13th January 1925, the Dargah instituted the present suit in the Court of the District Judge of Peshawar for redemption of the mortgage against appellants 1 and 4 and the legal representatives of the deceased mortgagees. The widow and sons of Sadhu Ram, who was then dead, were subsequently impleaded as defendants. The plaint alleged that the Dargah had paid Rs. 1,200 to Pir Moti Nath, that the transfer of the serai by Sadhu Ram to the Dargah, though in form a gift, was in reality a sale, and that the subsequent sale by Sadhu Ram to the mortgagees was a nullity, as Sadhu Ram had then no interest in the property. The plaintiffs offered to pay the full amount of the mortgage debt, though their liability under the agreement referred to above was limited to Rs. 5,000.

The defendants denied payment of the Rs. 1,200 by the Dargah to Pir Moti Nath. They contended that the serai, being joint family property, the gift of it by Sadhu Ram to the Dargah was void, and that the plaintiffs were precluded by their conduct from disputing the validity of the 1911 sale.

The District Judge found that the transfer of the serai by Sadhu Ram to the Dargah was for the discharge of an antecedent debt and was therefore valid, but he dismissed the suit on the ground that Sadhu Ram's name continued to appear in the revenue records as part owner, and that the mortgagees were entitled to the property under S. 41, T. P. Act, as bona fide purchasers for value from Sadhu Ram, who the Judge held was ostensible owner of the property with the consent of the Dargah within the meaning of that section.

Against this decree the Dargah preferred an appeal to the Judicial Commissioner, North-West Frontier Province. He found that the Rs. 1,200 was paid in fact, and he agreed with the District Judge in holding that the transfer to