Pigot and Rampini, JJ.
1. The rule followed in this Court not to interfere, save on some very special ground, with a finding of facts by the Lower Appellate Court on second appeal, is one which we follow with very jealous care; but in this case we cannot say that such a finding of facts, as in a case of this peculiar kind appears to us to be necessary, has been satisfactorily arrived at by the Lower Appellate Court.
2. We have these facts: The defendant's father, a servant of the plaintiffs' father, purchases from the plaintiffs' mother, when she becomes a widow, the property in question. He purchases it shortly after the plaintiffs' father's death. The consideration money is Rs. 157. Of that consideration money, Rs. 65 admittedly remained in his hands, either with the intention or under colour of meeting liabilities in respect of this property, incumbent on the family of the plaintiffs. The liabilities which then existed in respect of the property consisted of the rent for 1284, which was Rs. 12, and the amount payable at foot of a decree for rent for some previous years was in Bysack 1285, the date of the sale, about Rs. 31. That was payable by instalments falling due in Magh. The instalment due in the previous Magh, that is Magh 1284,. had been paid by the plaintiffs' father. There was therefore in Bysack 12S5 no instalment due, and no urgent need of money pressing on the family in respect of this piece of land, beyond the sum of Rs. 12 for payment of the 1284 rent. We do not understand that the rest of the Rs. 65 is accounted for. As to the residue of the purchase money, two things were disputed, one, that there was any necessity for that money such as to justify the widow in selling the property;. and, another, that the consideration passed.
3. The learned Judge has not made such findings as satisfactorily show that the plaintiffs' case must fail. He has not stated in his judgment in respect of what necessity he considers the sale to be justified. He has not adverted to the circumstance of the retention of money in the defendant's hands, which was not needed for the purpose of the family; and he has not adverted to this, that, when a servant of the plaintiffs' father purchased from the widow, his relation to the family makes it reasonable that from him or his representative should be exacted very complete proof of the necessity and of the passing of the consideration. The first Court has noticed that the writer of the deed himself, called on behalf of the defendant, has stated that no money, save Rs. 15 of the consideration money, was paid to the widow, the residue of such money as was paid having been paid to the widow's brother. We think that that was a circumstance that ought to have been dealt with in the judgment.
4. There are many cases in which a simple compendious finding of fact is quite enough to satisfy all requirements; but in a case of this sort, while it is our duty not to set aside clear findings of fact, save on grounds which rarely exist, we are bound to see that a proper view of the law in the case has been taken and applied by the Subordinate Court; and we do not feel satisfied that that has been done here. The case before us is, in its circumstances, one requiring very close scrutiny; and we are of opinion that the learned Judge has not made a satisfactory finding in respect of the question of necessity, in respect of the receipt of the consideration money by the mother of the plaintiffs, and in respect of the reality of the transaction as a sale for necessity, the purchaser purchasing on the faith of that necessity, and whether or not with full knowledge of the circumstances of the family.
5. We must remand the case to the Lower Appellate Court for a finding upon the matters we have indicated. The costs will abide the result of the learned Judge's determination of the case on this remand.