Decided on March 30,1950

Mohan Singh S/O Sham Singh Appellant
Sewa Singh S/O Hazara Singh And Ors. Respondents


Passey, J. - (1.) THE facts leading to this second appeal are simple and not disputed by the parties. Sewa Singh had by different registered documents, mortgaged 56 bighas 15 biswas of land to Kartar Singh for the aggregate amount of Rs. 2590. These encumbrances were created between 1982 and 1985 Bk. On 25 -2 -1997 out of the mortgaged land he sold 49 bighas and 15 biswas for Rs. 3000 to liquidate the mortgage debt and to wipe off his other outstanding liabilities. Mihan Singh, who is his collateral in the fourth degree, brought the present suit urging that the land was ancestral and that the vendor had no pressing necessity to make the alienation. The findings of the Courts below regarding the character of the land are conflicting but on the question of legal necessity they are uniform. It would be unnecessary to decide whether the land is ancestral as I see no ground not to endorse the conclusion of the two Courts below regarding the necessity for the sale. Out of the sale price Rs. 2590 were due to the vendee on account of the previous mortgages in his favour, Rs. 350 were also due to him on a bond and Rs. 60 were required to meet expenses of registration. The existence of the previous mortgages and the amounts due under them are not contested but it is urged by Mr. Atma Bam that those mortgages were effected wantonly. It is not open to the Appellant to attack them in second appeal when their validity was not challenged in the plaint or earlier. The Plaintiff has only sought for a declaration that the sale in favour of Kartar Singh would not affect him. No Court -fee in respect of the mortgages was paid and no issue was asked to be framed. Since the validity of the mortgages has remained unquestioned, the amounts due on account of them must be considered to be just antecedent debts due to the vendee. Rupees 350 have been proved to be due to Kartar Singh on a bond that was executed by the vendor in his favour on 15 -2 -94 This document has been proved by Mal Singh and Santa Singh marginal witnesses. It is urged on behalf of the Appellant that in the sale deed Rs. 350 were described to have been received by the vendor at home but the evidence led by the vendee went to show that payment of the amount had liquidated the bond. There is no material difference between the two positions. The existence of the bond and the liability of the vendor thereunder having been proved the mare fact that instead of saying that the debt had been wiped off, it was mentioned that the amount had been taken at home to pay up the vendee, would make no difference. It is, therefore, evident that by this sale the vendor has not only discharged his liabilities completely but he has recovered 7 bighas of land free from encumbrance. In the circumstances mentioned above the alienation cannot be held to have been made unnecessarily. The appeal is dismissed with costs.;

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