Jitendra Vir Gupta, J. - (1.) SHIV Lal, Defendant No. 1, is the owner of the suit land. Vide mortgage deed dated 7th March, 1975 (Ex. Dl) he mortgaged the suit land for a sum of Rs. 30,000 with Paras Ram and others, Defendants. Out of this amount, a sum of Rs. 10,000 was paid by a separate receipt while Rs. 20,000 was paid before the Registrar at the time of registration of the mortgage deed. The Plaintiff Ram Singh claiming himself to be the adopted son of mortgagor Shiv Lal, filed a suit for declaration challenging the said alienation made by his adoptive father Shiv Lal. It was alleged that the suit property was ancestral qua him, that the mortgage was without consideration and legal necessity and that the parties were governed by custom in matters of alienation. Shiv Lal, mortgagor, filed his written statement. He denied that the Plaintiff Ram Singh was his adopted Son. He pleaded that the Plaintiff had got an adoption deed executed by fraud; that the mortgage created by him was for consideration and legal necessity; that there was a litigation going on between him and the Plaintiff Ram Singh who claimed himself to be his adopted son; and that since he had no other means of livelihood and no expenses for fighting the litigation against the Plaintiff he had no option than to mortgage the suit land for a sum of Rs. 30,000 which amount was duly received by him. The mortgagees/Defendants pleaded that the suit land was not ancestral quo the Plaintiff, that the mortgage was for consideration and legal necessity and that the Plaintiff Ram Singh was not the validly adopted son of Shiv Lal, mortgagor.
(2.) THE trial court found that Shiv Lal, mortgagor, took the Plaintiff in adoption and since then he was transplanted in his family and became his son for all intents and purposes, and as such had the locus standi to file the suit. The parties were held to be governed by customary law according to which alienation of ancestral land could not be made without legal necessity. The land was held to be ancestral qua the Plaintiff. Though the alienation was found for consideration it was held to be without legal necessity. In view of these findings, the suit was decreed, - -vide judgment dated 20th October, 1978. In appeal, the learned Senior Sub -Judge with enhanced appellate powers affirmed the findings of the trial court and, thus, maintained the judgment and decree of the trial court. It was categorically found by the learned lower appellate court that as regards the question of consideration, the mortgagees had succeeded in proving that the mortgage was for consideration. Although it was further held that they had not succeeded in proving the legal necessity but there was no discussion on that issue and the learned lower appellate court just maintained the finding of the trial court. The learned Counsel for the Appellants submitted that after both the courts below had come to the conclusion that the mortgage was for consideration, the legal necessity was amply proved on the record. He submitted that from the written statement filed by the Shiv Lal himself in the present suit, it was quite evident that some litigation was going on between the Plaintiff and Shiv Lal, Defendant and he had no other source of livelihood and for that purpose he had no option than to mortgage the land for Rs. 30,000 with the Defendant -Appellants. Thus, argued the learned Counsel, the notion of legal necessity changes with passage of time, and on the facts and circumstances of the case, the mortgage should be held for legal necessity as well. The other findings of the courts below were not challenged by him.
(3.) ON the other hand, learned Counsel for the Plaintiff -Respondents submitted that the Defendants did not lead any evidence to. prove the legal necessity, and on the evidence produced by them the courts below have found that the Defendants have failed to prove the issue of legal necessity, and that being a finding of fact should not be interfered with in Second Appeal.;