JUDGMENT Yorke, J. - This is a second appeal by the plaintiffs in a suit for recovery of possession of plots measuring 24.36 acres in mahal Rudrapal Singh of village Chandpur which was decreed by the trial Court, but dismissed by the Additional Civil Judge of Gonda on appeal. 2. The facts are not in dispute. One Ambika Baksh Singh the defendant No. 2, as manager of a Hindu joint family, mortgaged the plots in suit to the defendant Gajadhar for Rs. 3,500 on the 6th November, 1925. The plots mortgaged corresponded to a one anna two pies odd share out of the 16 annas mahal in which the share of the mortgagor himself as an individual member of the joint family at the time of the execution of the mortgage was 6 annas. The present suit was instituted by Bijleshare Baksh Singh, brother of Ambika Baksh Singh, and his son Rameshar Baksh Singh who claimed that the mortgagor had no right to execute any mortgage deed without legal necessity, and that even if the mortgage were binding on the plaintiffs; the mortgage money had been paid out of the usufruct of the property, and the plaintiffs were entitled to the share in suit which included the specific plots given in the list attached to the plaint. The defence put forward was that the mortgage was taken for legal necessity and the plaintiffs were bound by it and it was further contended that there had been a separation of the members of the joint family arising out of the fact that Ambika Baksh Singh had filed an application under the Encumbered Estates Act, and in order to do so had expressed his intention of separation. The learned Munsif of Tarabganj who tried the suit held that no portion of the mortgage consideration was taken for legal necessity or for payment of antecedent debt, and that the mortgage deed was therefore not; binding on the plaintiffs. The lower appellate Court has affirmed the finding of the trial Court that no portion of the mortgage consideration was taken for legal necessity. The lower appellate Court has affirmed the finding of the trial Court that no portion of the mortgage consideration was taken for legal necessity. The trial Court was of opinion that the filing of the application under the Encumbered Estates Act did not result in a separation, and it accordingly held that the plaintiffs and Ambika Baksh Singh were members of a joint Hindu family, and that it could not be said what was the actual share of Ambika Baksh Singh in the joint family property, and the suit for possession was therefore decreed. The lower appellate Court on this point held that the express declaration made by Ambika Baksh Singh in his application under paragraph 4 of the Encumbered Estates Act had the effect of effecting a disruption of the joint Hind a family, and hence the plaintiffs and Ambika Baksh Singh were no longer members of a joint Hindu family at the date of the institution of the suit on the 7th November, 1936. It took the view that Ambika Baksh Singh had become entitled to a six annas share but of the 16 annas, and the share mortgaged being only one anna odd or corresponding to only that share, the plaintiffs were not entitled to recover possession, and it accordingly dismissed the suit. It would appear that the learned Civil Judge was applying the principle of Section 43 of the Transfer 6f Property Act, and holding that even if the mortgagor Ambika Baksh Singh was not legally entitled to mortgage the property, which he did mortgage, at the date of the mortgage, he became entitled to this property at a later date, and therefore the mortgage became effective against this property, and the plaintiffs were not entitled to maintain a suit for its recovery. 3. A number of grounds were taken in this appeal but learned Counsel for the appellants has begun by conceding that the application under the Encumbered Estates Act effects a separation between Ambika Baksh Singh and the other members of the joint family, but he contends that the mortgage executed by Ambika Bakhsh Singh was void ab initio and could not be validated by the subsequent separation by the operation of Section 43 of the Transfer of Property Act. Learned Counsel has referred to Mulla's Hindu Law (9th Edition) Section 242, sub-Sections (3) and (4) where it is pointed out that- in Bengal and the United Provinces, where a co-parcener cannot alienate even his own interest in joint family property without the consent of all other co-parceners, the alienation of joint family property made by the manager without legal necessity would not bind the shares either of the alien or of the consenting members." Sub-Section (31). 4. It is further stated in Sub-section (4) that: an alienation by the manager of a joint family made without legal necessity is not void, but voidable at the option of the other co-parceners. 5. He has also referred to Section 261 at page 295 where it is stated as follows : According to the Mitakshara Law as it prevails in Bengal and the United Provinces no co-parcener can alienate even his own undivided interest in the co-parcenary property without the consent of the other co-parceners. If he does so, the alienation is void in its entirety; it is not valid even to the extent of his own interest in the property. 6. He concedes that there is a difference of opinion on the question whether such a transfer is void or merely voidable but he contends that for the province of Oudh it is settled law that such a-transfer is void ab initio. 7. Reliance has been placed on Lachhmatt Prasad v. Sarnam Singh in which it was held by their Lordship of the Privy Council that: a mortgage of the joint family property of a Mitakshara family by its " Karta" unless necessity or even an antecedent debt is proved is void ; the transaction itself gives to the mortgagee no rights against the 'Kana's interest in the joint family property. 8. In the present case it is no longer in issue that this transfer was not for antecedent 'debt or legal necessity. Following the decision in Lachhman Prasad v. Sarnam Singh (1917) 44 I.A. 163 : AIR 1917 P.C. 41 : 39 All. 8. In the present case it is no longer in issue that this transfer was not for antecedent 'debt or legal necessity. Following the decision in Lachhman Prasad v. Sarnam Singh (1917) 44 I.A. 163 : AIR 1917 P.C. 41 : 39 All. 500 it was held by the Court of the Judicial Commissioner in Gajodhar Baksh v. Gauri Shanker (1920) 8 O.L.J. 81 : AIR 1921 Oud 47 that such a mortgage of joint family property by the manager is absolutely void and ineffectual from its inception if not made for purposes laid down in the Hindu Law, and creates no charge against the joint family property and even against the interests of the actual mortgagor. 9. The same view was taken by the Full Bench of this Court in AIR 1930 284 (Oudh) in which in a suit by the mortgagee to obtain possession of the mortgaged property it was held that- a mortgage of joint ancestral property effected by a Hindu father not for legal necessity or for discharging an antecedent debt is void from its inception and so the mortgagee cannot be allowed to enforce it. Therefore, where a mortgagee of a Hindu father in respect of the ancestral property seeks to enforce the mortgage against the sons he must establish either that the mortgage was justified by legal necessity or it was supported by antecedent debt. 10. The same view was expressed more recently in Ganga Ram Sahu v. Bishnath 1935 O.W.N. 777, in which it was held that: in Oudh it is now settled law that the alienation of joint ancestral property by the father in a joint Hindu family is void ab initio, unless it is made for legal necessity or in lieu of an antecedent debt. 11. In the face of 'these decisions learned Counsel for the respondent has sought to rely upon the principle of Section 43 of the Transfer of Property Act on the contention that Ambika Baksh Singh the mortgagor represented himself to be the owner of the property in question and fully competent to transfer it. 11. In the face of 'these decisions learned Counsel for the respondent has sought to rely upon the principle of Section 43 of the Transfer of Property Act on the contention that Ambika Baksh Singh the mortgagor represented himself to be the owner of the property in question and fully competent to transfer it. Section 43 provides that: where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. 12. In order to apply this section it is clearly necessary first that there should be a fraudulent or erroneous representation and secondly that at the subsequent date the contract of transfer which is to be made operable on the interest subsequently acquired shall be a subsisting contract. Learned Counsel for the respondent referred to Ram Ratan v. Chaudhari Ganga Bakhsh Singh (1923) 26 O.C. 245 : AIR 1923 Oudh 265 in which it was held that although a mortgage of joint family property was void, yet the principle of Section 43 of the Transfer of Property Act would apply. In that case reliance was placed at page 255 on a Patna case in which it was stated that- various authorities were reviewed and the result summed up in two propositions: (1) that a mortgage of the whole or a share of the joint family property of a Mitakshara family is void and inoperative as against the property hypothecated and gives the mortgagee no rights even against the mortgagor's undivided share, and (2) that where the mortgagor's interest has been separated from that of the other members of the family it may become available as security for the mortgage debt. 13. It was remarked that the second proposition was obiter but appeared to the learned Judges of the Judicial Commissioner's Court to be sound. 14. Reference was also made to Babu Amar Dayal Singh v. Har Pershad Sahu (1920) 68 I.C. 72 : AIR 1920 Pat. 433 but this was the very Patna case on which reliance was placed in Ram Raton v. Chaudhari Ganga Baksh Singh (1923) 26 O.C. 245 : AIR 1923 Oudh 265. 15. 14. Reference was also made to Babu Amar Dayal Singh v. Har Pershad Sahu (1920) 68 I.C. 72 : AIR 1920 Pat. 433 but this was the very Patna case on which reliance was placed in Ram Raton v. Chaudhari Ganga Baksh Singh (1923) 26 O.C. 245 : AIR 1923 Oudh 265. 15. Another case referred to, Eshaq Lal v. Dulla AIR 1930 (A1) 115, turns out on examination not to be case of joint family property at all, but a clear case of an erroneous representation on the part of the mortgagor. The case for the respondent therefore rests upon the case reported in Ram Ratan v. Chaudhari Ganga Bakhsh Singh (1923) 26 O.C. 245 : AIR 1923 Oudh 265 only. 16. It appears to me that in the circumstances of the present case the principles embodied in Section 43 of the Transfer of Property Act are not applicable. In the first place no reliance was placed upon Section 43 in the pleadings and no evidence was led on the question of fraudulent or erroneous representation. So far from there being any question of such representation learned Counsel for the appellants has been able to point to a number of passages in the deed of mortgage executed by Ambika Baksh Singh which show clearly that there was no mis-representation or erroneous representation. On the contrary it was clearly indicated that :here was a possibility of the mortgage deed being liable to be assailed. The mortgagee is saddled with knowledge in the present case of the fact that the property was ancestral property in possession of two brothers who were not separate. It is therefore clear that so far from the mortgagee Gajadhar being able to say that there was a fraudulent or erroneous representation on the part of the mortgagor, he is a person who entered into the transaction with his eyes open. Jagernath Prasad Vs. Mt. Dhanpati and Others, AIR 1934 All 969 it was held by a single Judge of the Allahabad High Court that: the benefit of Section 45 of the Transfer of Property Act can only be claimed by a person who has acted on the erroneous representation of the party who subsequently acquires an interest in the property. Jagernath Prasad Vs. Mt. Dhanpati and Others, AIR 1934 All 969 it was held by a single Judge of the Allahabad High Court that: the benefit of Section 45 of the Transfer of Property Act can only be claimed by a person who has acted on the erroneous representation of the party who subsequently acquires an interest in the property. Where the plaintiff, a Hindu, lends money in a mortgage transaction to a Hindu widow, the Court must conclude that he is aware of the elementary principles of the Hindu law that a Hindu widow taking possession of property on the death of her husband holds it for her life with the limited interest of a Hindu widow. He cannot be allowed to say that he took the property under that mortgage on the assurance that she is the owner of the property. 17. Similarly in AIR 1927 177 (Oudh) it was held by a bench of this Court that: the presumption is that the parties know the law, so that if the 'Karta' of a joint Hindu family mortgages the joint family property without legal necessity, and not for the purpose of discharging an antecedent debt, the parties to the mortgage must be presumed to know that the mortgage is unenforceable and void. 18. There are numerous cases in which on this principle it has been held that Section 43 is not applicable to cases of transfers of property which by law was not transferable, for example it has been held that the transfer by a reversioners of property' to which he has only a 'spessuccessionis' cannot be held subject to the application of that section and the same has" been held in regard to the transfer of property by a ward who was under the superintendence of the Court of Wards. In the result it appears to me to be absolutely clear that the mortgagee in the present case took this property with his eyes open. This is not a case of fraudulent or erroneous representation, and in as much as the mortgage was void ab initio, it could not possibly be said that at the date of separation in the family of Ambika Bakhsh Singh the contract of transfer was a subsisting contract. 19. This is not a case of fraudulent or erroneous representation, and in as much as the mortgage was void ab initio, it could not possibly be said that at the date of separation in the family of Ambika Bakhsh Singh the contract of transfer was a subsisting contract. 19. In these circumstances the plaintiffs as members of joint family, and therefore joint owners of the property transferred by Ambika Baksh Singh in 1925, were entitled to a decree for the recovery of the plots in spit, they being co-sharers in those plots. The mortgagee was in effect a trespasser and it was competent for any of the co-sharers to maintain a suit for the recovery of possession by his ejectment. The plaintiffs' suit was rightly decreed by the trial Court. I allow this appeal with costs of this and the Court below, set aside the decree of the lower appellate Court and restore that of the trial Court.