- (1.)The finding of the lower Court on the issue remitted is that Musammat Jaini died on the 31st October 1897.
(2.)The present suit for redemption of the mortgage was brought on 17th November 1909, i.e., more than 12 years after the death of Musammat Jaini. It is, however, pointed out that the Civil Courts were closed on 31st October 1900 for the annual vacation and only reopened on 17th November 1909.
(3.)As we have pointed out, the suit as framed at present is bound to fail. The plaintiffs claim to treat the sale of 29th July 1879 by the widow as a nullity and to have the right to redeem the original mortgage. But, as found by the lower Court, that sale was for legal necessity at least to the extent of Rs. 3,977-11 out of Rs. 5,500. It is clear, therefore, that the plaintiffs cannot treat that sale as a nullity. The widow had full power to pay off the debts of her husband and to sell property for that purpose. The plaintiffs, therefore, ought to have sued not for redemption of the mortgage, but for avoidance of the sale on payment of so much as was received by the widow for legal necessity. As they did not do this, the Court of first instance dismissed the suit for redemption.