- (1.)JUDGEMENT This is a Second Appeal by Kuber Singh and another, minor sons of Bhagwan Din alias Bachcha, against the decree and judgement of the Civil and Sessions Judge of Banda, dismissing their appeal, on the ground that the entire mortgage debt of Rs. 1,500/- was due when their father sold 9 Bigha 1 Biswa land to the defendants-mortgagees on May 28, 1941, and as the sale was for payment of genuine antecedent debts, it could not be set aside at the instance of the sons.
(2.)THE material facts of the case are that the plaintiffs father and uncle had usufructuarily mortgaged 17 Bigha 2 Biswas of the their zamindari property in favour of Pearey Singh, father of Beni Madho Singh, on 29-8-1919 for a sum Rs. 835/-. In 1924, the plaintiffs father executed another usufructuary mortgage of 3 Bigha 5 Biswas land in favour of the same mortgagee for a sum of Rs. 685/-. On 28-5-1941 the plaintiffs father sold 9 Bigha 1 Biswa land for Rs. 1,500/- to the mortgagee as a result of which the earlier mortgages of 1919 and 1924 were fully paid out of the sale consideration. This sale was successfully preempted by Arjun Singh, defendant No. 1, whereafter he entered into possession of the property sold.
The plaintiffs instituted the present suit in 1945 for possession of 9 Bigha 1 Biswa land sold to defendant No. 2, and then in possession of defendant no. 1, with the allegation that the property was joint and ancestral property and had been sold without any legal necessity and with out consideration. It is said that the two mortgage debts were satisfied out of the usufruct and on the date the sale-deed was executed no amount was due under the two mortgages. Consequently, the sale was without consideration.

(3.)DEFENDANT No. 1 contested the suit on the ground that the sale-deed had been executed for payment of antecedent debts and hence was binding on the sons and that the mortgage debts had not been paid up and the sale-deed was for valid consideration.