- (1.)THE property in the suit, from which the present appeal arises, originally belonged to a joint family consisting of two brothers, Shripati and Shankar. Shankar died first leaving a widow Gajara, who was the plaintiff in the suit. On 11-5-1945, Shripati executed a sale deed of all the properties of the joint family in favour of defendant No. 1 for Rs. 700, and the properties are since then in the possession of defendant No. 1. Shripati died in September 1945. On 28-8-1947, the plaintiff gave a notice to defendant No. 1, and then she instituted the present suit for partition and separate possession of her half share in the lands, which were conveyed by Shripati to defendant No. 1. The defence was that Shripati was suffering from T. B. ; that he had already incurred debts, because he had to undergo heavy expenses for his treatment in the Wai hospital, and that he had also further necessity of moneys for his treatment. It was the case of defendant No. 1 besides that in any case he had made inquiries and had satisfied himself-as to the existence of the necessity, and the inquiries being bona fide, he was protected.
(2.)THE learned appellate Judge has found upon this contention that out of the consideration of Rs. 700, Rs. 500 were required by Shripati to pay off his earlier debts and also for the expenses of treatment to be undergone thereafter. He held that so far as Rs. 200 are concerned the matter was doubtful, and it may be that they were borrowed by Shripati in order to make an advance upon a mortgage to one Khashaba. He said, however, that the amount was not very big, and the sale was, therefore, justified by legal necessity. In the alternative, he said that defendant No. 1 had made inquiries and satisfied himself as to the existence of the necessity, and the alienation could not, therefore, be challenged in any case by the plaintiff.
(3.)NOW, in second appeal these findings of fact are binding upon us. It is true that so far as the amount of Rs. 200 advanced to Khashaba is concerned, the learned trial Judge was inclined to think that it may be that Shripati paid this amount out of the amount realised by the sale of the family properties to defendant No. 1 after the sale. But even so, there is a further finding that in any case defendant No. 1 had made bona fide inquiries with regard to the existence of the necessity and satisfied himself as to it.