SADHU SINGH HARRA SINGH Vs. GANDA SINGH

JUDGEMENT

(1.) This is a second appeal from the decree of the learned Senior Sub-Judge of Amritsar, reversing on appeal the decision of a Subordinate Judge of Tarn Taran and granting the plaintiffs a declaration that the sale of 10 kanala and 5 marlas of land comprised in khasra No. 735, situate in village Tharu, Tahsil Tarn Taran, shall not affect the plaintiffs reversionary rights after, the death of the vendor.

(2.) On 28 September 1929, Jhanda Singh defendant 1, mortgaged 19 kanals and 10 marlas of land comprised in khasra Nos. 735 and 377 situate in village Tharu in Tarn Taran Tahsil to Sadhu Singh, defendant 2, for a sum of Rs. 1700. It was stipulated in the mortgage deed that the mortgagee would enjoy the usufruct of the land in lieu of interest on Rs. 1200 out of the mortgage consideration and that the balance of Rs. 500 would carry interest at the rate of Re. 1-4-0 per cent, per mensem. On 24 May 1939, defendant l, sold the above land to defendant 2 for a sum of Rs. 1900. Rupees 1700 out of the sale consideration were appropriated towards the mortgage debt due under the mortgage deed dated 28th September 1929 and Rs. 500 were received in cash for certain purposes specified in the sale deed. The amount due on account of interest under the terms of the mortgage deed was remitted. On 21 December 1943, the plaintiffs, collateral of the vendor in the the third degree, brought a suit for a declaration that the mortgage and the sale should not affect their reversionary rights after the death of defendant 1, alleging that the land covered by the two alienations was ancestral qua them and that both the alienations had been effected without consideration and legal necessity. The suit was resisted by defendant 2. The learned trial Judge held that out of the land forming the subject-matter of the suit only 10 kanals and 6 marlas of land comprised in khasra No. 735 had been proved to be ancestral qua the plaintiffs.

(3.) The plaintiffs suit to contest the validity of the mortgage was held to be barred by limitation and consideration and legal necessity were held proved for both the alienations. On these findings, the plaintiffs suit was dismissed. The plaintiffs went up in appeal to the learned Senior Sub-Judge who agreed with the decision of trial Court on the question of the character of the suit land and also on the question of limitation qua the suit in respect of the mortgage and consideration, and legal necessity for the mortgage. He, however, held necessity not to have been proved for the sale. He also held the possible existence of the alienor's real brother and his son in Malaya to be no bar to the maintainability of the suit. On these findings he accepted the appeal and decreed the plaintiffs claim in respect of the sale of the land that had been found to be ancestral Defendant 1, the vendee, feeling aggrieved from the decree of the learned Judge has come up in second appeal in this Court.