1. This appeal arises out of a suit for sale on mortgage. The mortgage was executed in 1909 by Dalpat Rai arm his younger son Shadi Lal. The suit was contested by Dalpat Rai's elder son, the appellant Bhagwan Das, on the ground that it was executed without legal necessity.
2. It has now been found that the property was joint family property. The plaintiff produced evidence which the learned 'Munsif accepted as proving the existence of legal necessity. The learned District Judge was unable to rely on this evidence?' because in his opinion it proved nothing more than a representation by the mortgagors of the existence of the necessity. This does not appear to be strictly accurate. The evidence of one of the witnesses as quoted by the learned Munsif shows the existence of actual necessity at the time. This witness who was an Honorary Magistrate gave evidence that the mortgagors at the time of execution of the deed were in straitened circumstances and in need of money for their subsistence and in order to carry on their cultivation.
3. The learned District Judge goes on to hold, accepting the finding of the learned Munsif on this point, that the appellant was working away from home and that his father and brother were left at home and were in charge of the family affairs and property. It appears that the appellant was employed on the Railway and had been away at Allahabad for a long period leaving the family property in charge of his father and younger brother. The learned Judge considered that this state of affairs was sufficient to shift the burden of proof on to the appellant. In my opinion, this view is not inconsistent with the law on the subject. It has been held by the Privy Council that no invariable rule can be laid down but that the onuses liable to shift on proof of particular circumstances. Looking at the matter from a common-sense point of view, it is highly unlikely that the father and the younger brother who were in charge of the property would combine, in the absence of the plaintiff, to alienate it without any necessity in order to defraud him. The concurrence of all the adult members of a family in a transaction has been more than once held sufficient, e.g., Balwant Santaram v. Babaji (1884) 8 Bom. 602, to raise a presumption of legal necessity and in the particular circumstances of this case the Court below was, in my opinion, justified in holding that the concurrence in the transaction of Shadi Lal, who was of age and was the only son present at home at the time of the transaction, has the same effect.
4. I accordingly dismiss the appeal with costs including in this Court fees on the higher scale.