JUDGMENT

Lindsay, J. - One Bijai Indar Singh was the owner of a share in mauza Kheria Gurdeo and a share in mauza Mirpur in the Aligrah District. On the 8th of November, 1906 he mortgaged these shares to one Menagal San as security for the sum of Rs. 8,000. From 1906 onwards he appears to have been in difficulties, and on the 19th of March 1912 one Kishen Singh had obtained a decree against him on a mortgage which decree was under execution in 1914. On the 19th of May 1914 Bijai Indar Singh sold the property Kheria Gurdeo to Shar Singh, the father of the plaintiffs, for the sum of rupees 33,000. In the conveyance from Bijai Indar Singh to Sher Singh occurs the following passage:

The property sold is declared to be free from all kinds of claims, hypothecation liens and encumbrances, in that the entire amount due to Lala Mangal Sen and that due to Shrimati Ram Dei, wife of B. Sheo Prasad, vakil and Shrimati Ram Dei, wife of Bhola Nath, i.e., entire amount due under both the documents have bean left in deposit with the vendee for payment.

2. A sum of Rs. 17,300 was left with the vendee for payment of the mortgage of Mangal Sen of the 8th November 1906. Rs. 6,500 were left to satisfy the decrees of Kishen Singh and of Hazari Lal and Gulzari Lal in respect of which an order had been made that the property of Bijai Indar Singh should be sold on the 20th of May 1914, that is, the day succeeding the date of the sale-deed.

3. It is said that there was another decree obtained by Hazari Lal alone for which no provision was made in this document. But be that as it may, the sale did in fact take place en the 21st of May 1914 and one Bhola Nath bought the share in Kheria Gurdeo for Rs. 1,450. On the 19th of June Sher Singh deposited a sufficient sum of money to have the sale set aside. That deposit was objected to and Sher Singh subsequently withdrew the money deposited by him for reasons which seemed good to him. On the 14th of November 1914 the sale to Bhola Nath was confirmed. On the 16th of April 1915 Bhola Nath conveyed mauza Kheria Gurdeo to Sher Singh for the sum of Rs. 2,500.

4. We now turn to mauza Mirpur. It will be remembered that this also was subject to the mortgage of Mangal Sen, and the share in this mauza was also sold in execution of the decree of Kishen Singh. On the 18th of June 1913 Kishen Singh, the decree-holder, had filed an affidavit in which he stated that the property was subject to certain encumbrances and the second encumbrance set out by him was the mortgage executed by Bijai Indar Singh in favour of Mangal Sen for Rs. 8,000 registered on the 10th of November 1906. It is therefore evident that any bidder at the auction sale would be well aware that he was bidding for property which was at all events possibly encumbered by that mortgage.

5. On the 20th of July 1914, mauza Mirpur was sold to Ganeshi Lal. He gave for it the sum of Rs. 2,900. The alleged value of the property, free of encumbrances, has been stated to be Rs. 70,000 and there is evidence to show that the net annual profits were at least Rs. 1,800. And later when, on the 20th of August 1921, this very property was put up to auction in execution of the decree of Jaideo and others, heirs of Mangal Sen, Roshan Singh purchased it for Rupees 45,000, subject to an encumbrance of Rs. 16,000, and deposited the whole of the purchase money, Subsequently an application was made by Ganeshi Lal, the defendant in this case, that the sale should be set aside, and it was in fact so set aside; but on the question of value it would appear that Roshan Singh was willing to pay a price in excess of Rs. 60,000 for this share in mauza Mirpur. Notwithstanding the engagement which Sher Singh had entered into by the document of the 19th of May 1914, he did not pay the Rupees 17,300 to Mangal Sen and Mangal Sen instituted a suit for sale which was decreed on the 14th of September 1918. Ganeshi Lal was impleaded in this suit as Defendant No. 4 and raised the defence that Sher Singh, wh