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6. In this Court also, the plaintiffs-appellants have not made any grievance against the order of dismissal in respect of their claims made against defendants 6 to 10. So, the only question for determination in this appeal is whether the appellants are entitled to get any decree for contribution against the contesting defendants-respondents, and, if so, to what amount.

7. Section 82 of the Transfer of Property Act embodies the principle of contribution which comes into play when a property is sold subject to a mortgage encumbrance. This section reads thus:

''to deprive a purchaser for value without notice of a prior incumbrance of the protection of the legal estate it is not, in my opinion, essential that he should have been guilty of fraud; it is sufficient that he has been guilty of such gross negligence as would render it unjust to deprive the prior encumbrancer of his priority."

This case was followed by the Calcutta High Court in Lloyds Bank Ltd v. P.E. Guzdar and Co., ILR 56 Cal 868 : (AIR 1930 Cal 22).

10. The learned advocate for the respondents has, however, relied on a decision in Kausalai Ammal v. Sankaramuthiah Pillai, AIR 1941 Mad 707, wherein was held that the Omission 10 make inquiries is not sufficient to constitute constructive notice. Their Lordships of the Madras High. Court accepted the view of the Calcutta High Court in Joshua v. Alliance Bank of Simla, ILR 22 Cal 185, that "wilful abstention from an enquiry or search must be taken to mean such abstention from inquiry or search as it would show want of bona fides." A perusal of the report shows that the Calcutta High Court assigned this meaning to the expression "wilful abstention from an inquiry or search' following the observation of Lord Selborne in the case of Agra Bank, (1874) 7 HL 135. In the circumstances of the case before them, their Lordships of the Madras High Court held that the omission to make inquiries did not constitute constructive notice. In that case, in a suit for maintenance, a lady had obtained a decree by which the amount allowed to her as maintenance was made a charge on a certain immovable property. Thereafter the person liable to pay the decree had mortgaged the property to a third person and the suit to enforce the mortgage bond went up in appeal to the Madras High Court. The parties in that suit admitted that the mortgage was a genuine transaction and that the consideration passed. There was no suggestion that the mortgage was created in order to defeat the appellant and in fact it was assumed that the mortgage was created for the purpose which would be necessary from the point of view of the members of the joint Hindu family who were represented by the mortgagor. In such circumstances, the omission to make inquiry might not constitute constructive nonce. But in the present case the contesting respondents were decree-holders in the money execution case and it was their ordinary duty to make inquiries regarding prior encumbrances in Order to comply with the provisions of Order 21, Rule 66 of the Code of Civil Procedure, and they did not perform this ordinary duty.

13. No express contact to this effect was lifted on behalf of the contesting defendants. But with reference to the sale proclamation and some other documents of the money execution case, it was contended that by his conduct Madho Prasad Singh entered into a contract with these defendants that he would pay the entice mortgage dues and the purchase of the defendants at the money sale was free from encumbrance. As stated earlier, no encumbrance was mentioned in the sale proclamation. It appears that Madho Prasad Singh filed a petition under Order 21, Rule 90 of the Code of Civil Procedure in the money execution case at Gopalganj. This petition was registered as Miscellaneous Case No. 223 of 1938 and there was a compromise between the decree-holders, that is, the contesting defendants and the petitioner on the 15th April 1939. It" was agreed that the applicant judgment-debtor should pay Rs. 1318 to the auction-purchaser in certain instalments by the 15th October 1939 at the latest, and on payment of the same the auction sale would stand cancelled; but otherwise, the same would be confirmed, Madho Prasad Singh did not pay the amount and the sale, as stated earlier, was confirmed. But this fact by itself taken along with the omission to note any encumbrance in the sale proclamation cannot amount to an implied contract, between Madho Prasad Singh and the auction-purchasers by which the former agreed to pay the entire mortgage dues. The compromise cannot also amount/ to estoppel against Madho Prasad Singly because the auction-purchasers were not misled by this compromise to believe that the property purchased by them was free from any encumbrance, The learned advocate for the respondents cited three decisions in support of their contention, but none of them is applicable to the present case. In Kali Dayal v. Umesh Prasad, AIR 1922 Pat 63 it was held that the auction-purchaser is the representative of the judgment-debtor and that the general rule applicable to sales in execution of decrees in that no man can transfer to another a better title than he himself possesses. This apparently goes against the respondents. It was further observed that estoppel is a rule of evidence precluding a person from denying the truth of that thing which he had induced another person to believe it to be true. But in the present case there was nothing in the conduct of Madho Prasad Singh to induce these respondents to believe that the property purchased by them in court was free from any encumbrance.

14. On the plain language of Section 82 of the Transfer of Property Act, the plaintiff who are the heirs and legal representatives of Madho Prasad Singh, are entitled to a decree for contribution against the contesting respondents. In Ganeshi Lal v. Charan Singh, 57 Ind App 189 : (AIR 1930 PC 183), it was held by the Privy Council that where two properties mortgaged together to secureone debt afterwards became vested in different owners, who purchased subject to mortgage, if one of them discharges the mortgage he is entitled under Section 82 of the Transfer of Property Act 1882, to rateable contribution from the other, although under an earlier contract of purchase made with the mortgagor (the other not being a party) he retained part of the then agreed price for the express purpose of discharging the mortgage. This decision was followed in the case of Gopi Nath v. Raghubans Kumar, AIR 1949 Pat 522, and their Lordships observed :