M.C.Desai, J. - (1.) This is a defendants' appeal from a decree of a Civil Judge for possession over zamindari property in village Shemo and some houses, past mesne profits amounting to Rs. 3,400/- and pendente lite and future mesne profits at Rs. 1,100/- per annum. The decree was made conditional upon the plaintiff-respondents' de-positing Rs. 3,600./- within three months for payment to the appellants; in default their suit was to stand dismissed with costs.
(2.) The property in dispute was admittedly owned by Dr. Ranjit Singh as his self-acquired property. He was murdered on 20-1-1895 and was survived by his widow Janki Devi and at least one brother Sher Singh. He had one more brother Lekhraj Singh, but when he died is a matter of serious controversy in the appeal. Sher Singh died in 1904 leaving his son Ram Sarup Singh, plaintiff-respondent No. 3. Lekhraj Singh left a son Bharat Singh, who was plaintiff No. 1, but died during the pendency of the suit leaving his sons Richpal Singh and Jaipal Singh, plaintiffs-respondents Nos. 1 and 2. Janki Devi entered into possession of the property in dispute as a Hindu widow on the death of Ranjit Singh. On 25-1-1897 she sold it for the ostensible consideration of Rs. 20,000/- to Gopal Chand, father of defendants-appellant Nos. 1 and 2. Sher Singh as the nearest reversioner joined in the execution of the sale deed. Gopal Chand entered into possession of the property. He transferred some of it to the other defendants Who are pro forma respondents in the appeal Janki Devi, who will be referred to as the widow, died on 5-10-1932. At the time of her death Ram Sarup Singh and Bharat Singh were the nearest reversioners. On 21-1-1944 they instituted the suit, giving rise to this appeal, to recover possession of the pro-perty in dispute alleging, that the sale, not being for legal necessity, was not binding after the death of the widow and that they were entitled to possession of the property. They also challenged the consideration of the sale though they did not specify for how much actually the property was sold. They urged that the widow was purdahnashin, almost illiterate and unable to manager fairs' and that Sher Singh, though liter-ate, was addicted to drugs and unable to manage his affairs. They contended that Sher Singh's consent to the sale by the widow could not raise any presumption of legal necessity, be-cause he was too dependent upon her and was of weak intellect on account of the effect of drugs. They claimed not only possession of the property in dispute but also mesne profits for three years immediately preceding the in-station of the suit and pendents lite and future aaesne profits.
(3.) The suit was contested by the appellants, who filed their written statement on 24-4-1944. They did not admit the pedigree showing Lekhraj Singh as a brother of Ranjit Singh. They maintained that the sale was for Rs. 20,000/- Wit of which Rs. 17,450/- were paid in cash at the time of the registration and Rs. 2,550/- were paid earlier as earnest, that the sale was for legal necessity, that Sher Singh joined in the execution as the sole reversioner, by way of a family settlement and also in token of the existence of legal necessity, that ho and the widow both were intelligent and literate persons, who fully understood what they were doing, and that the recitals in the sale deed disproved the existence of any person named Lekhraj Singh. As regards the other defendants they alleged that they were not transferees but were mere licensees and were unnecessarily impleaded as defendants. On 25-7-1944 the appellants' counsel made a statement under Order X of the Code of Civil Procedure to the effect that the widow had to discharge debts amounting to Rs. 11,500/- due to Bholai Singh, Bishambhar Nath, Priya Lal, Chandi Prasad, Girwar and Chhunni Lal, that she required money to meet expenses of civil and criminal cases and that Ranjit Singh had (only) one brother Sher Singh. The learned Civil Judge framed the following issues. "1. What consideration, if any, actually passed for the sale and whether there was legal necessity for any portion of the same? Was the whole consideration paid or only a part was paid? Was the sale executed under undue influence and fraud as alleged in paras 3 and 6 of the plaint? Does the sale bind the reversioners? 2. Was Sher Singh the sole presumptive reversioner on the date of the sale or some more persons; if it be held that Sher Singh was the sole nearest reversioner on the date of sale what is the effect of his joining as co-executant. 3. Whether any or both of the plaintiffs were the reversioners of Janki Devi and entitled to succeed her to the estate of Ranjit Singh on her death? 4. the claim barred by limitation? When did Mst. Janki Devi die? 5. the claim barred by principles of estoppel? 6.ether Janki Devi and Sher Singh executed the sale after fully understanding the implications and whether did they possess sufficient intelligence to comprehend the transaction? 7. what relief, if any, are the plaintiffs or any of them entitled? 8.ether defendants Nos. 3, 6 and 5 are subsequent transferees from defendants Nos. 1 & 2 of the property in schedule B or are they in possession in their own rights? Is the suit bad for rejoinder of defendant No. 6? 9. the claim againat defendants Nos. 3 to 6 barred by Section 41, T. P. Act?";