JUDGMENT

1. This is a plaintiffs appeal under the Letters Patent from a judgment of a learned Judge of this Court reversing the decree of the lower Appellate Court.

2. It appears that one Inayat Khan and his three brothers were entitled to 5-6th share in a village, the remaining l-6th belonged to a lady. Instead of mortgaging his l-4th out of the 5-6th, Inayat Khan made a mortgage of 1-4th share in the village to the present plaintiffs. This came to about 17 bighas odd and the remaining l-4th of l-6th came to about 2 bighas. Subsequently a sale-deed was taken from the lady in the names of the sons of Inayat Khan and their wives whose names were entered in the revenue papers. The defendants, in execution of a money decree against the sons and their wives, got 1-4th of l-6th share belonging to the lady attached and put up for sale, and they purchased it themselves. Now, the plaintiffs have brought this suit for sale on the basis of their mortgage-deed and wish to enforce the security against the extra share, namely 1-4th of 1-6th which had been included in the mortgage, but which at that time did not belong to Inayat Khan. In the plaint there was no reference to Section 43, Transfer of Property Act, and accordingly there was no issue on this point, but the point appears to have been pressed before the trial Court which went into the question. The point was again considered by the lower Appellate Court and the lower Appellate Court came to the conclusion that the plaintiffs were entitled to enforce their equitable right u/s 43 against the defendants auction--purchasers. On appeal a learned Judge of this Court felt that the question of Section 43 being a mixed question of law and fact ought to be investigated. He accordingly sent down two issues to the Court below for determination with liberty to the parties to produce fresh evidence. The findings returned by the lower Appellate Court were to the effect that Inayat Khan was the real owner and that his sons and their wives were mere benamidars and that the plaintiffs were entitled to enforce their rights against the defendants.

3. The learned Judge of this Court , on the basis of these findings, came to the conclusion that in spite of them the suit should fail as regards this extra share. The basis of this decision is that the word "transferee" in the proviso to Section 43 is wide enough to cover an auction-purchaser and that therefore the present defendants who purchased the property for consideration and in good faith and without notice of this equitable charge are protected. He further expressed the opinion that the defendants, having purchased the supposed interests of the benamidars who were the ostensible owners of the property with the implied consent of Inayat Khan, are entitled to protection on account of Inayat Khan's conduct. In appeal it is urged before us that neither Section 41 nor the proviso to Section 43 can apply to an auction--purchaser.

4. It is significant to point out that the preamble to the Transfer of Property Act, suggests that it was to define and amend certain parts of the law relating to transfer of property by act of parties that the Transfer of Property Act was passed. Section 2(d) also indicates that nothing in the Act is to affect any transfer by operation of law, or by, or in execution of, a decree or order of a Court of competent jurisdiction save as provided by Section 57 and Chap. IV of the Act. Both Sections 41 and 43 are based on the principle of estoppel where, on a representation made by one party and acted upon by another, the rights of the latter are prejudiced so as to enable him to the benefit of the principle of estoppel as against the other. It may therefore be very doubtful whether the word "transferees" in the proviso to Section 43 would expressly cover an auction--purchaser. But we think that in this particular case it is not necessary to express any final opinion on this point.

5. The defendants are auction-purchasers of the right, tit