1. The plaintiffs brought the usual case for possession of property transferred by their father on the allegation that the transfer was made without legal necessity. The two subordinate Courts held that out of the consideration of Rs. 300, there was legal necessity for Rs. 100 which was paid towards an antecedent debt, that Rs. 50 was not paid and that no legal necessity was proved for the sum of Rs. 150. The argument here was that as to Rs. 150, the lower appellate Court had accepted the position of the defendant appellant that sum was borrowed for the purchase of bullocks and that the Court held this sum to be paid without legal necessity, simply because there was no recital in the sale-deed. Such, however, is not the position. The lower appellate Court said that the bullocks were purchased prior to the sale and there was no proof that the money was borrowed for the purchase of those bullocks. The finding, therefore, of the lower appellate Court is not vitiated by wrong reasoning.
2. The second argument referred naturally to the Privy Council decisions, disagreeing with the view of this Court that where legal necessity was not proved for the entire sum borrowed, the property should be returned to the son on payment of the sum for which legal necessity was proved. The question according to the decision of the Privy Council would be whether the sale was necessary for legal necessity.
3. The argument of the respondents was that here, there was not one block of property which could not be sold separately, but there were three plots out of which one or two plots of one-third of the area could have been sold for Rs. 100. This argument appears to be sound. The question, is, therefore, whether the father was put to the necessity of selling any of the properties in suit. There are three plots, one No. 669 double the size of the two together Nos. 721 and 729, and as the plots are separate, there is no reason to believe that the father could not have sold No. 721 and portion of 729 to satisfy the need of Rs. 100. Under the circumstances the appeal cannot succeed for plot 669.
4. The final argument was that the sons had ratified the sale by something which they said in their written statement in a previous suit. I am not prepared to consider this argument when no certified copy of that written statement is produced. I do not know exactly what position they took up whether to resist possession in a suit under Section 9 of the Specific Relief Act, they had stated that they could hold possession as exproprietary tenants or whether they had stated that from the time of the sale they were ex-proprietary tenants and should not be ejected. Much would depend on the exact terms of the written statement, and that paper not being before me, I refuse to consider the point of ratification.
5. In the result I dismiss the appeal as regards plot 669, but decree the appeal plot 721 and of part 729. The decree of the Subordinate Court shall be modified accordingly. No sum shall be paid to the defendant-appellant. The plaintiffs shall receive possession of plot 669 without making any payment. The plaintiffs'shall receive two-thirds of their costs, while the defendant shall receive one-third throughout.
V.B/R.K
6. Order accordingly.
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