B.N. Misra, J.
1. The two appellants, who were plaintiffs in the trial court, have filed this appeal against the affirming judgment of the learned Additional District Judge, Puri. Respondents 1, 2 and 3 were defendants 1, 2 and 3 in the trial court. The plaintiffs' case may be briefly stated The following genealogy given in the plaint describes the relation ship between the parties:--
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Hari Krishna Jaga
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| Haia Jaia
| (Piff.No.2) (Piff.No.1)
The plaintiffs have been in possession at the suit lands since the time of their forefathers. Hari, Krushna and Jagu were living jointly and were also possessing the suit lands jointly. Of the there brothers, Krushna's death came first, followed by Jagu and Hari was the last to die in the year 1953. Thereafter the plaintiffs have remained in joint possession of the suit lands. The suit lands comprise Ac. Order 35 dec. of lands appertaining to plot No. 9 (AC. 0.02 dec.), plot No. 10 (Ac. 0.18) and plot No. 219 (Ac. 0.15 dec.) of Khata No. 10 in Mouza Bagha. plot No. 9 consists of a house and the remaining two plots are Bari lands. The two plaintiffs were in joint possession of the house and also jointly used the Bari lands for growing vegetables. It is alleged that in 1968, defendant 1 (respondent 1) filed a false case against the plaintiffs on the allegation that the latter had cut and removed one Chakunda tree from plot No. 10 and on the basis of false evidence adduced by defendant 1, the plaintiffs were convicted in the theft case. Being emboldened by the judgment of the criminal court, defendant I threatened to disposses the plaintiffs from the suit lands. It is further alleged that Jagu, who was illiterate, was working as a servant under defendant 1. Jagu was also a drunkard and defendant 1 exercised undue influence over Jagu and induced him to exe-cute some fictitious documents in favour of defendant 1. Jagu never understood the contents of the documents, nor were the contents of the documents read over and explained to him and in any case the documents do not bind the plaintiffs. The plaintiffs have remained in possession of the suit lands for more than twenty years. In view of the threats of defendant 1, plaintiffs filed the present suit for declaration of their right, title and interest and confirmation of possession over the seat lands and for a declaration that plaintiff were not bound by the sale deed dt. 13-4-1942 purported to be executed by Jagu in favour of defendant 1.
2. In his written statement, defendant 1 has denied the allegations of the plaintiffs. His case is that both the plaintiffs are the sons of Jagu and that Jagu was the last coparcener to die after the deaths of Hari and Krushna. Being in need of money Jagu mortgaged the suit properties with defendant 1 and executed Ex. A, a registered deed of mortgage dt. 2-1-1936. On 25-6-1941 Jagu took a loan of RS. 25/- from defendant 1 and executed a promissory note, Ext. B. As Jagu could not repay the loan under the deed of mortgage and the promissory note and as he was in need of more money, he sold the suit lands to defendant 1 by executing Ext. C, a registered deed of sale dt. 13-4-1942 and delivered possession of the suit lands to defendant 1. Jagu also handed over the Parcha, Ext. D, in respect of the suit lands. Alter purchase, defendant 1 remained in possession of the suit lands and was paying rent thereof. In 1968 the plaintiffs un-authorisedly cut and removed one Chakunda tree from plot Net. 10 and therefore defendant 1 filed a criminal case against them. The plaintiffs were convicted in the said case and their conviction was upheld in appeal. According to defendant 1, during Khanapuri operations, the plaintiffs with a view to have their names recorded in respect of the suit properties entered the house standing on plot No. 9 with the help of some local people. After occupying the said house, the plaintiffs cut and removed a Chakunda tree from plot No. 10 as a result of which defendant l filed the criminal case referred to above against the plaintiffs and the latter were convicted in the said case. Again the plaintiffs committed theft of black-gram from plot No. 219 as a result of which another criminal case has been filed against them. It is alleged that in order to avoid criminal liability in the criminal case, the plaintiffs filed the present false case against defendant 1.
3. Defendants 2 and 3 did not contest the suit and were accordingly set ex parte. Defendant 3 has examined herself as a witness for the plaintiffs and has supported the case of the plaintiffs.
4. The learned Munsif decree the plaintiffs' suit in respect of the house standing on plot No. 9, but dismissed the suit in respect of the other two plots. Defendant 1 was permananently injuncted not to interfere with the possession of the plaintiffs over plot No. 9, The plaintiffs went up in appeal against judgment and decree of the learned trial court and defendant 1 also filed a cross objection in respect of plot No. 9. The learned Additional District Judge set aside the judgment of the learned trial court in respect of plot No. 9 and confirmed the judgment and decree of the learned trial court in respect of the other two plots. The plaintiffs have threreafter filed the present appeal in this court.
5. Both the courts below have found that Jata, plaintiff 1, and Hata, plaintiff 2, are the sons of Jagu and that of the three brothers, Hari and Krushna had predeceased Jagu. These two findings have not been challenged in this appeal.
6. Both the courts below have further found that Ext A the registered deed of mortgage dt. 2-1-1936, and Ext. C the registered deed of sale dt. 13-4-1942 were duly executed by Jagu favour of defendant 1. The next question which arises for consideration in this case is whether the plaintiffs are bound toy Ext. A, the mortgage deed dt. 2-1-1936, and Ext. C, the sale deed dt. 13-4-1942. A| sole surviving coparcener is entitled to dispose of the coparcenary property as it were his separate property. A son cannot object to alienations made by his father before he was born or begotten In case Jagu was the sale surviving coparcener on 2-1-1936 and 13-4-1942, the mortgage and the sale would obviously be binding on the plaintiffs. However if on the other hand, either plaintiff l or plaintiff 2 was in existence at the time of the alienations, he or they, as the case may foe, would foe bound only if the alienations were for legal necessity or for the benefit of the estate, or for the payment of an antecedent debt which was not incurred for immoral or illegal purposes. This important aspect of the case has received insufficient attention in the courts below. The learned trial court has observed in para 5 of his judgment that during deposition plaintiff 2 had given his age to be 30 years and from that the learned judge jumped to the conclusion that plaintiff 2 was born an 1945. I have gone through the deposition of plaintiff 2 who had examined himself as PW 5. In his evidence he has nowhere stated that he was 30 years' old on the date of his deposition. It is only in the heading of the deposition that plaintiff 2 has described his age to be 30 years. The description of age in the heading of the deposition cannot be considered to be an authentic statement of age and therefore should not have been relied upon as the proof of age of plaintiff 2. The learned trial court discussed the age of plaintiff 2, but failed to note the age of plaintiff 1 who has examined himself as PW 3. Nowhere in his evidence has he given his age, although in the heading of the deposition his age is described as 45 years. In the case of plaintiff 1 also, there is no clear and positive evidence regarding his date of birth. The learned lower appellate court has considered this matter in a perfunctory way. In the sub-para of para 5 of his judgment, the learned Additional District Judge has observed:--
'The contention of the learned Advocate for the appellants does not stand to reason. The deed of mortgage (Ext. A) was written in 1936, when there was no contemplation of this suit and also when plaintiff 1 must have been a minor and plaintiff 2 must not have been born. In these circumstances, it is difficult to reject Ext. A as a selfserving document. From Ext. A, it is quite clear that Hari and Krushna had already died and Jagu was the sole surviving coparcener and had power of disposal over the suit properties. Defendant 1 is a party to the deed of mortgage (Ext. A), the pronote (Ext. B) and also the sale deed (Ext. C) and he has stated in clear terms in his evidence that Hari and Krushna had already died by the time of the mortgage in his favour. Thus, the sum total of the evidence clearly proves that Jagu alias .Jagannath Swain was the sole surviving coparcener at the time of the mortgage in favour of defendant 1 in 1936 and Hari and Krushna had already died by then.'
It is surprising that while in the first part of the sub-paragraph extracted above the learned Additional District Judge finds that plaintiff 1 must have been a minor and plaintiff 2 must not have been born at the time of the deed of mortgage, Ext. A, was executed in 1936, in the concluding part of the said paragraph the learned Judge holds that Jagu was the sole surviving coparcener at the time of the mortgage in 1936. The two findings clearly contradict each other. If plaintiff 1 had been born by 1936, Jagu cannot be considered to be the sole surviving coparcener. The learned lower appellate court has not specifically considered whether the two plaintiffs were or either of them was in existence at the time of the execution of the sale deed Ext. C in 1942. Without discussing any evidence on the point, the learned Additional District Judge in para-6 of his judgment concludes that the plaintiffs are bound by the alienations made by their father Jagu for legal and family necessities. On going through the records, I find that there is little evidence on the question of legal necessity. In these circumstances, it is necessary for the ends of justice that the case must be remitted to the trial court for fresh disposal after recording its findings on the dates of birth of plaintiffs l and 2 and on the question whether the alienations were for legal necessity, or for the benefit of the estate or for payment of antecedent debt.
7. In the result, this appeal is allowed and the judgments and decrees of the courts below are set aside. The case is remitted to the learned trial court for fresh disposal according to law, subject to the directions hereinafter contained:--
(1) The learned trial court shall frame an additional issue on the question whether the plaintiffs are bound by the alienations of the late Jagu Swain under the registered deed of mortgage dt. 2-1-1936 and the registered deed of sale dt. 13-4-' 1942;
(2) The question whether the alienations were for legal necessity, or for the benefit of the estate, or for payment of antecedent debt would arise for consideration if the plaintiffs were or either of them was in existence at the time of the alienations made by Jagu;
(3) Parties would be entitled to adduce further evidence, but the said evidence shall be confined to the question whether the plaintiffs were or either of them was in existence at the time of execution of the registered deed of mortgage dt. 2-1-1936 and the registered deed of sale dt. 13-4-1942 and whether the mortgage and the sale were for legal necessity benefit of the estate or payment of antecedent debt; and
(4) Evidence already on record and the additional evidence after remand shall, subject to just exceptions, be treated as evidence in the suit for all purposes.
8. 9th September, 1983 is the date fixed for appearance of the parties before the learned trial court for the purpose of receiving directions of that court as to further proceedings in the suit. Costs should follow the event.