1. Hayat mortgaged the land in dispute in favour of Inayat Ali etc. By Mutation No. 1993 dated 10-12- 1961 for a sum of Rs. 4,000.00. Fazal Hussain etc., claiming to be his collaterals, filed the customary suit for a declaration that the mortgage was not binding upon them and did not affect their reversionary rights.
2. The suit was contested and the following six issues were framed
(3) Whether parties are not governed by custom? O.D.
(4) Whether alienation in dispute is for consideration and legal necessity? O.D.
(5) Whether defendant No. 1 has been impleaded unnecessarily, if so, what is its effect ? O. D.
(6) Relief.
3. The suit which was filed on 12-2-1962 was decreed by the learned Civil Judge on 9-4-1963. The defendants-respondents felt aggrieved and filed an appeal against it, which was accepted by the learned Additional District Judge, Gujrat on 17-7-1964. Hence this second appeal.
4. Issues Nos. 1, 2, 3 and 5 % ere not contested before the learned Additional District Judge, where for, he held in paragraph 5 of his judgment that the learned lower Court had correctly decided them in favour of the plaintiffs. Learned counsel for the respondents tried to canvass the finding on this issue also but did not deny that it. Had been given on the basis of a concession made before the learned District Judge by the learned counsel appearing for the present respondents, who were the appellants before him. He was, therefore, told that he was not entitled under the law to have this finding reopened as it was based upon a concession.
5. The only issue that was debated before me was consequently issue No. 4, which centres round the question whether the alienation in dispute was for consideration and legal necessity. In fact it was not disputed before me that the sale was for consideration and I am, therefore, concerned only with the question of legal necessity in this appeal.
6. The written statement filed on 29-11-1962 before the Civil Judge, Gujrat contains only a bald statement in paragraph 2, to the effect that the property had been mortgaged for legal necessity and for a consideration of Rs. 4,000.00. No details had been given and one is left guessing as to what the legal necessity was for which the mortgage was effected.
7. It was for the first time in the evidence led before the learned Civil Judge that this necessity was particularised. Hayat the alienor appeared as D. W. 3 and stated that he bad mortgaged the property because he purchased A building material worth Rs. 1,600.00 for his house, in proof of which he produced Exh. D.
1. This exhibit shows that the purchase was made on 4-2-1962 while the mutation had been effected on 10-12-1961. In other words it was not for the payment of an antecedent debt and the transaction for which the money was partially required took place after the land had been mortgaged. He also stated that he purchased a buffalo for Rs. 600.00 and he presented a receipt for this transaction also, which is on. D. 2, which bears the date 6-4-1962. This transaction also, therefore, did not precede the mortgage.
8. In cross-examination D. W. 3 admitted that he already had a Kotha and that he constructed a Kothri and a. Veranda. Throughout his statement he has not said a word about the necessity for this addition to the house in which be was living. No factual basis having been laid down for the necessity the further question of its being legal can hardly be spelt out from the testimony of the main witness.
9. The learned lower Court has relied upon Lachi and others v. Surja and others (AIR 1926 Lab. 409). In this case the only ancestral house belonging to the alienor was sold in execution of a decree and his ejectment from that house was consequently imminent. It was found to be difficult to rent a house in that village, where for, the buying of a house by him was upheld as of legal necessity.
10. Nothing has been said about the necessity for purchasing a buffalo.
11. As for the redemption of the mortgage, the alienor has made an oblique reference to it in his statement, when he referred to redemption of land from Fazal Hussain. It is, therefore, impossible to find out as to when this mortgage, which was redeemed had taken place or whether it was for any necessity much less a legal necessity.
12. The other case on which reliance was placed by the learned lower Court is Muhammad Bashir and others v. Sawal Singh and others (AIR 1935 Lah. 927,). In this case the alienation had been necessitated for the paying of just debts, which were antecedent to the transaction of alienation.
13. There is no parity on facts between Muhammad Bashir's case and tile one to which it is sought to be applied. Under Customary Law ancestral property can be sold or mortgaged only for a necessary purpose and so it has been said in paragraph 62 of the Digest, Of customary law in Punjab by Rattigan The instances of necessary purpose are enumerated in paragraph 63. One of them runs as follows:- "(f) To purchase agricultural implements, cattle or other gear; to carry out necessary repairs to the property; to secure effectual cultivation of the land."
14. It has been held time and again that to support alienation necessity must exist at the time of alienation. Payment of just antecedent debts can also be justified as legal necessity but then such a debt should not have been incurred after the agreement relating to the alienation has been entered into.
15. Be that as it may just antecedent debts were not pleaded in the present case.
16. As for the buffalo, it has not been shown that he did not possess another: and in any case since the consideration for the same is only an infinitesimal part of the loan raised on the basis of the mortgage, it could be no justification for it.
17. In these circumstances I have no option but to hold that the alienor had miserably failed to make out a case of legal necessity and has not even pleaded Payment of just and antecedent debts. The appeal is consequently accept with costs, the judgment and decree of the learned Additional District Judge impugned before me, are set aside and the suit is decreed.