Ahmad, J.

1. This is an appeal by the, defendants first party against the judgment and decree dated 22-9-1951, passed by Mr. Satchitanand, Subordinate Judge, 1st Court, Monghyr, reversing those passed by Mr. B.N. Pathak, Additional Munsif, Begusarai.

2. The suit was for the declaration that the kebalas dated 17-5-1941 and 11-6-1941, both executed by Basudeo Choudhary, defendant 3rd party (defendant No. 15) who is the eldest brother of plaintiffs 2 and 3 and the son of plaintiff No. 1, were not binding on the plaintiffs and that the decree dated 14-4-1945, passed in Mortgage Suit No. 60 of 1942 was null and void.

3. The dispute between the parties relates to the southern half of plot No. 193 having an area of about 1 bigha 5 kathas and 161/2 dhurs. It appears that originally so long as Subans Choudhry, the husband of plaintiff No. 1, was alive, what belonged to his family in plot No. 193 was only its northern half. On 3-5-1924, Subans Choudhry executed a deed of mortgage in respect of that northern half of plot No. 193 in favour of defendants 4th party for a sum of Rs. 500/-. Subsequently on his death two documents of sale were executed on behalf of that joint family. The one was dated 17-5-1941.

Under the terms of that deed the southern half of plot No. 193 is shown to have been sold for a sum of Rs. 500.00 to the defendant first party Ram Kirpal Choudhary. The entire consideration, however, of that sale was left with the vendee to redeem the mortgage dated 3-5-1924 executed by Subans Choudhry in favour of the defendants 4th party in respect of the northern half of plot No. 193. The other document of sale was dated 11-6-1941. This was in respect of the northern half of plot No. 193 and was executed in favour of its mortgagees defendants 4th party, for a sum of Rs. 600/-; and out of that consideration Rs. 500/-was to be appropriated by the vendee towards their mortgage money and only the remaining sum of Rs. 100.00 was to be paid in cash to the executant of the document.

It is not denied that at the time when the aforesaid two sale deeds were executed the family of the executant had not yet acquired any interest in the southern half of plot No. 193 but were the owners only of its northern half. It is, therefore, obvious that the southern half of plot No. 193 could not then be sold by that family under the document dated 17-5-1941.

4. But in 1942 the defendants 1st party relying on the sale deed dated 17-5-1941, instituted a title suit bearing No. 60 of 1942 impleading therein the defendants 4th party, plaintiffs 2 and 3 and defendant No. 15 as defendants for the redemption of the mortgage deed dated 3-5-1924 as also for the declaration that what was in fact sold to the defendants 1st party under their sale deed D/- 17-5-1941 was the equity of redemption in the northern half of plot No. 193 and not its southern half. In the first two Courts that suit was dismissed. But by the time when that matter came to be heard in the High Court in second appeal, an important event took place. That was that on 27-5-1942 the family of the plaintiffs purchased the southern half of plot No. 193 from the defendants 2nd party under a sale deed executed in the name of plaintiff No. 2. The result of this acquisition was that at the time when the appeal in the redemption suit was taken up for hearing in the High Court, the defendants first party at once fell upon the provision of law laid down in Sec. 43 of the Transfer of Property Act and prayed that because of that purchase in the family they were now in any case entitled at least to a decree for the southern half of plot No. 193.

The High Court on hearing the parties accepted that contention and allowed the appeal in those terms on 30-9-1947. That decree was, however, subject to the condition that the defendants first party would be entitled to recover possession of the southern half only on cash payment of the consideration money, namely. Rs. 500.00 as stipulated in the sale deed dated th