RADHAKISHAN Vs. BISANSING

JUDGEMENT

(1.) ONE Gulabsing Rajput left at his death three sons by name Dipchand, Kisansing, defendant 3, and Bisan sing, plaintiff-respondent 1, and a widow by name Mt. Ani. Gulabsing's property devolved on his sons in equal rights. They formed a joint Hindu family of which defendant Dipchand was the manager. Dipchand and Mt. Ani, on behalf of the minor sons Kisansing and Bisansing, entered into several transactions whereby they mortgaged . Gulabsing's property from time to time. These mortgages are dated 18th May 1910, Ex. I D-3 for Rs. 400, 27th January 1912, Ex. I D-2 for Rs. 500, and 11th March 1914-Ex. I D-1 for Rs. 1,000. On 18th March 1918 Dipchand and Kisansing, who had" since attained majority, and Mt. Ani on behalf of the plaintiff Bisansing who was still a minor, executed in favour of the appellants-defendants 1 and 2 a sale-deed, Ex. I D-l 2, for Rs. 3,550, which is made up of Rs. 1,300 due to the purchasers on the mortgage Ex. I D-l, and Rs. 298-5-3 on a bond and khata debt, Rs. 755-11-6 payable to one Mirabai in full satisfaction of mortgage, Ex. I D -2, and Rs. 1,200-15-3 paid in cash before the Sub-Registrar for meeting the marriage expenses of plaintiff. Both the Courts below have held that the item of Rs. 293-5-3 was not for legal necessity. The first Court held that the rest of the consideration of Rs. 3,256-10-9 was justified by legal necessity and therefore upheld the sale to the defendants, but directed them to pay to plaintiff Rs. 97-12-3, which forms one-third of Rs. 293-5-3, for which no legal necessity existed.

(2.) PLAINTIFF therefore appealed to the Court of the Second Additional District Judge, Amraoti. The said Court differed from the first Court with regard to the existence of legal necessity in respect of two items of Rs. 1,300 and Rs. 755-11-6 and' confirmed the latter's decision as to the remaining item of Rs. 1,200-15-3. It decreed to the plaintiff joint possession to the extent of one-third share without any payment and further inserted a direction for inquiry into mesne profits accruing from the date of the suit till delivery of possession.

(3.) IT was contended before me that out of this item of Rs. 755-11-6 the principal sum was Rs. 500 which was made up of two items of Rs. 350 and Rs. 150. As to Rs. 350 the same was said to have been required for payment of a debt due to Yado Purushottam. The lower appellate Court held that though the existence of the debt due to Yado Purushottam was proved, legal necessity therefor was not proved, and that whatever evidence there was on record showed that it had become barred by time. This is a finding which cannot be disturbed in second appeal.