Sharma, J. - (1.) THIS is an appeal against the appellate judgment and decree of the learned District Judge Sawai Jaipur and Gangapur and arises out of a suit for a declaration that the two transfers, one in favour of the appellant Mst. Kamla and the other in favour of respondent Ghasi Khan made on different dates, are void and ineffectual against the plaintiff. The plaintiff founded his claim on the ground that the house in suit belonged to Mohri Lal husband of Mst. Naraini and after his death, it devolved upon Mst. Naraini as a Hindu widow. The plaintiff being the adopted son of Bhuramal, real brother of Mohri Lal, was the next reversioner and therefore, entitled to challenge the alienation. It was alleged that the transaction was without legal necessity and one of the transfers was in favour of Mst. Kamla who was a prostitute and the other in favour of Ghasi Khan who was of a creed different from that of the transferor. Stand was taken upon sec. 52a and sec. 52b (2) of Jaipur Transfer of Property Act which respectively forbid transfer in favour of a prostitute and in favour of a person professing a creed different from that of the person who occupies the remaining portion of a house or a dwelling place. ! As both the transfers are of two different portions of a house, it was asserted that they were void and illegal.
(2.) MST. Kamla was arrayed as defendant No. 2 and Ghasi Khan as defendant No. 3 while MST. Naraini was arrayed as defendant No. 1 All the defendants contend the suit on the ground that the plaintiff was not the adopted son of Bhuramal and had, consequently, no right to challenge the transfers. It was also pleaded that the transfers were for legal necessity and further it was pleaded that law relied upon by the plaintiff was not applicable to the property outside the Jaipur City. The learned Civil Judge who tried the case held that the plaintiff was the adopted son of Bhuramal and was consequently the next reversioner. He also held that Mst. Kamla was a prostitute and Ghasi Khan professed a creed different from the residents of Gowari in which the houses in dispute were situated. Both the transfers were, therefore, invalid. He gave a decree to the plaintiff for a declaration that the said two transfers were null and void and ineffectual against him. All the three defendants filed a joint appeal before the District and Sessions Judge but at the time of hearing, Mst. Naraini the vendor withdrew from the appeal and made an application admitting that the plaintiff was the adopted son of Bhuramal. The learned District Judge thereupon dismissed the appeal also so far as Mst. Kamla and Ghasikhan were concerned. Against this appellate judgment and decree of the learned District Judge, the defendant Mst. Kamla has come in appeal to this Court. It was argued by the learned counsel for the appellant that the learned District Judge has not at all applied his mind to the evidence on the record to find whether the plaintiff has a right to sue or not. He has simply acted upon the application of Mst. Naraini who withdrew from the appeal and it was not legal for him to hold that the plaintiff was entitled to sue merely on that account. He ought to have applied his mind to the evidence on the record and then found whether the plaintiff was the next reversioner or not and had a right to sue or not. This has not been done. Similarly it was argued that the District Judge has not applied his mind to the evidence on the record on the question of legal necessity as well. On both the points he has simply dittoed the finding of the Civil Judge without independently examining the evidence on the record. As regards the transfer in favour of Ghasikhan it was also argued that the transfer could be impeached only by the residents of the remaining portion of the house or dwelling place and not by any other person. The suit so far as Ghasikhan was concerned, was bad also on this ground. Mr. Sanghi on behalf of the plaintiff had himself to admit that the judgment of the lower appellate court was not what it ought to have been. He simply argued that the learned District Judge has found in agreement with the lower court that its findings were correct and it should be assumed that he considered the evidence on the record. On considering the arguments of both the learned counsels and going through the judgment of the lower appellate court, I have no hesitation in saying that the judgment of the lower appellate court is most perfunctory. A first appellate court does not exist simply for the dittoing of the judgment of the first court when it wants to uphold the decree of that court. Its duty is to go through the evidence on the record itself and consider it judicially and the judgment itself ought to show that the evidence has been so considered. Even according to the Jaipur Civil Procedure Code if the two lower courts have concurrently given a finding of fact, it is binding on the court of second appeal. It is, therefore, the duty of the first appellate court to properly examine the evidence on the record and discuss it in the judgment in order to convince the court of second appeal that the evidence has been so considered. Looking from this angle I find that the judgment of the first appellate court can neither be upheld on the point of the plaintiff's right to sue nor on the point of legal necessity. There is no doubt that in Jaipur there existed a Transfer of Property Act according to sec. 52 A of which a transfer made in favour of a prostitute without the previous sanction of the Government was not valid. It has been held by both the lower courts that the appellant Mst. Kamla was a prostitute and this finding has not been challenged before me by the learned counsel for the appellant. But even then the question for the lower appellate court was to see whether in such a case a suit can be brought for the avoidance of the transfer by the person who has no present right and is only the next reversioner. So far as Ghasikhan is concerned, Sec. 52-B (2) says that no transfer by sale, gift or mortgage with possession of any portion of a house or dwelling place shall be valid if the remaining portion thereof belongs to or is occupied by a person or persons belonging to a class or professing a creed different from that of the transferee. It was for the lower courts to see whether in such a case transfer could be avoided by any body who is not the owner or the occupier of the remaining portion of the house, a portion of which has been transferred. Mr. Sanghi says that the plaintiff is living in a portion of the house which has been sold and, therefore, he had a right to impeach the transfer in favour of Ghasikhan. From the judgment of the lower courts, however, I do not find that they have examined this question. If the plaintiff was occupying the remaining portion of the house, it was for the lower courts to give a finding whether it was so. The judgment under appeal cannot be maintained. The appeal is allowed, the decree of the lower appellate court is set aside and the case is sent back to it for decision in accordance with law and in the light of the observations made above. The costs of this appeal shall abide the result in the lower appellate court after this remand. . ;