J.N.Hore, J. - (1.) This is an appeal against the judgment and decree, dated 5.6.75 passed by the learned Additional District Judge, 6th Court, Alipore in Title Appeal No. 192 of 1974 reversing those of the learned Munsif, 2nd Court, Baruipur in Title Suit No. 276 of 1959 dated 22.1.74.
(2.) The facts of the case are briefly as follows : The suit property-two danga plots and a homestead land in one block originally belonged to one Ramanath Naskar, who died leaving his wife Bhubaneswari Dasi, one son Bankubehari and two daughters Haramoni (mother of the plaintiff) and Menoka Bala, defendant-respondent No. 1. Ramanath had also left a little more than six bighas of paddy land subject to a mortgage. All the lands were inherited by the son who died unmarried leaving the mother as sole heiress. Bhubaneswari thus inherited the suit lands as a limited owner, she had during the lifetime of the son sold away the paddy lands to the eldest daughter subject to the mortgage as guardian of the minor son. Subsequently on 17.9.47, she executed a kobala for the suit lands in favour of the younger daughter Menoka (defendant No. 1) with recitals of legal necessity. Menoka had been living in the homestead with the mother along with her children. Bhubaneswari died in the homestead on 25.5.59. The Hindu Succession Act had come into operation on 17.6.56. The elder daughter (plaintiff's mother) had in the meantime sold away the paddy land to other persons. On 17.9.59, the elder daughter's sons filed the instant suit claiming 2/5th share in the suit lands as reversioners of their maternal uncle Bankubehari and for recovery of possession after partition on the averments that the alienation of the suit lands in favour of defendant No. 1 Menoka by the mother was not justified by legal necessity and was not binding on the plaintiffs. When this suit was filed, the elder daughter Haramoni was alive. She died on 13.12.64. The ,younger daughter and her sons (defendants in the instant suit) filed a suit against the plaintiff's mother and the transferees from her for recovery of their shares in the ,paddy lands which had been alienated by the mother. But that suit ultimately failed. During the lifetime of the mother, the elder daughter filed a suit against the younger daughter for declaration that the alienation of the suit lands in favour of the younger daughter was not justified by legal necessity and was not binding on her. She withdrew the suit after the death of the mother and then her sons filed the instant suit.
(3.) The defence of defendant Nos. 1 and 2 was that the alienation of the suit lands in favour of the defendant No. 1 by the mother was justified by legal necessity but it was not an out and out sale. It was intended to be a loan transaction. Possession of the suit lands all' along remained with the mother Bhubaneswari who acquired absolute interest on the enforcement of the Hindu Succession Act and having failed to repay the loan she sold away suit lands absolutely to defendant No. 1 by a kobala dated 2.3.59 and so the plaintiffs had no right to challenge the alienation dated 17.9.47 which was not an out and out sale.;