1. This appeal has been filed by Puran Singh, defendant 1, against the judgment and decree of the Additional District Judge, Ropar, dated 31st Aug., 1970.
2. Briefly, the case of the plaintiffs is that Thakar son of Ram Ditta was the owner of the land and after his death, it was inherited by his widow Smt. Karmi defendant as a life tenant. She sold the property to Puran defendant, vide registered sale deed dated 12th June, 1944, for a sum of Rs. 4,000/- . It is alleged that the sale was without consideration and legal necessity. It is further alleged that after the sale of the property, she contracted Karewa with one Prita and, therefore, lost her right in the property. Consequently, a suit for possession was filed by the plaintiffs who are members of the proprietary body of the village under O. I, R. 8, C. P. C.
3. Puran Singh defendant contested the suit and inter alia pleaded that the property was not inherited by Smt. Karmi from her husband, that the sale was for consideration and legal necessity and that she had not contracted Karewa. Some other plea were also raised but they do not survive in the appeal.
4. The learned trial Court held that the property was inherited by Smt. Karmi from her husband, that the sale was for legal necessity to the extent of Rs. 550/- , and that Smt. Karmi had contracted Karewa. It further held that the plaintiffs being the members of the proprietary body of the village, had no right to file the suit. In view of the finding that the plaintiffs had no right to file the suit, it dismissed the same. They went up in appear and the lower appellate Court affirmed the judgment of the trial Court and dismissed the same. The plaintiffs came up in second appeal to this Court.
5. This Court vide judgment dated 30th of Sept., 1954 held that the plaintiffs had a right to file the suit. Consequently, it remanded the case to the lower appellate Court for deciding the matter afresh. The learned lower appellate Court after remain held that the property was inherited by Smt. Karmi from her husband and that the vendee had been able to prove legal necessity to the extent of Rs. 550/- . In view of the aforesaid findings, it decreed the suit of the plaintiffs and ordered that they would be entitled to take possession of the property on payment of Rs. 550/- . Puran Singh defendant has come up in second appeal to this Court.
6. It is contended by the learned counsel for the appellant that the plaintiff-respondents have not produced the mutation of inheritance in favour of Smt. Karmi and, therefore, the Courts below have erred in holding that she inherited the property from her husband. I regret my inability to accept the contention. The learned lower appellate Court, after taking into consideration the jamabandis and the pedigree-table, held that Smt. Karmi inherited the property from her husband. I have got no reason to hold that the finding of the learned lower appellate Court is not warranted. It is specifically stated in the pedigree-table that the Smt. Karmi was an heir of her husband and she sold whole of the property to Puran Singh appellant. It is further stated that, after that sale, she ceased to be the owner of the property in the village. After taking into consideration the jamabandis and pedigree-table I am of the opinion that the finding arrived at by the first appellate Court is correct and there is no scope for interference with the same.
7. The second submission of the learned counsel for the appellant is that the first appellate Court converted the sale in favour of the appellant into a mortgage. According to him, by virtue of Section 14(1), Hindu Succession Act, she became full owner of the property. I am not convinced with this argument as well. The Court below have found that Rs. 550/- was for legal necessity and that the plaintiffs were entitled to take possession of the property on payment of that amount. In suits challenging the alienation by the reversioners, the Court has no right to convert a sale into a mortgage in case a part of the consideration is found for legal necessity. In the said view, I am fortified by the observations in Bharpur Singh v. Mallan Singh, AIR 1952 Pepsu 54, wherein it was held :--
'Where the plaintiff challenges an alienation (sale) made by a person governed by customary law on the ground that it is without consideration and necessity and the Court finds that only a portion of the consideration passed for a necessary purpose, that Court does not, and cannot, convert the sale into a mortgage. There is no law under which a Court having, so far as concerns the plaintiff's rights, cancelled a sale, can create a mortgage for the sum of money found to be for necessity. What it does is to find the sale invalid as against the plaintiff and then to rule that, inasmuch as he who seeks equity must do equity, plaintiff who has benefited by the liquidation of debts that would have been binding on the estate in his hands, must before taking possession after the alienor's death, repay the benefit so received. The Courts are, therefore, wrong in their phraseology when they write of a reversioner in such a case redeeming the land after the death of the alienor.'
In view of the aforesaid circumstance, an alienor does not become a mortgagor and the alienee not a mortgagee. Therefore, the question of applicability of Section 14(1), Hindu Succession Act does not arise.
8. The learned counsel for the appellant lastly urged that the balance amount is also proved for legal necessity and the lower appellate Court has erroneously held it not to be so. I do not find any substance in this contention too. The finding is a finding of fact and this Court cannot interfere with the finding of fact arrived at by the lower appellate Court. It has not been shown that the said finding is vitiated. I, therefore, reject this submission of the learned counsel also.
9. For the aforesaid reasons, I do not find any merit in this appeal and dismiss the same with no order as to costs.
10. Appeal dismissed.