P L D 1959 (W (PLP)

KAIKAUS, J.

‑This is an appeal by the plaintiffs in a usual declaratory suit under custom challenging two alienations of ancestral property on the ground that the alienations were without consideration and necessity. The alienor in this case is Soofi Ghulam Nabi, a Kamboh of Garhi Shahu, a suburb of Lahore. He effected on the 6th of January 1938 a mortgage of the suit property (which is 6 kanals and 4 marlas of land in Mauza Garhi Shahu, in favour of Partap Singh defendant for a sum of Rs. 5,

100. On the 30th of March 1943, he sold the same land to Mst. Rashida Khanum defendant‑respondent for a sum of Rs. 11,805, which included Rs. 6,500 due in respect of the mortgage. The present suit was filed on the 14th of October 1943, by the brothers' sons of Soofi Ghulam Nabi. The allegations in the plaint were the usual ones . . . . . the alienor was bound by agri cultural custom, the land alienated was ancestral and the aliena tions were not for consideration and necessity. Defendants to the suit were the vendee, the mortgagee and Soofi Ghulam Nabi. The contesting defendants, i.e., the mortgagee and the vendee, denied that the alienor was governed by custom or that the land was ancestral, and alleged also that the aliena tions were for consideration and necessity and were valid as acts of good management. ,They pleaded too that Muhammad Shafi, the father of the plaintiffs, had consented to the alienatious which fact debarred the plaintiffs from suing. There was at the same time a plea that the suit was collusive. The learned Sub‑Judge, who tried the suit, found the land to be ancestral and necessity established in the case of the mortgage to the extent of Rs. 2,805 and in respect of the sale to the extent of Rs. 4,

455. On the question of custom he decided against the plaintiffs, holding that the family of the alienor though originally bound by agricultural custom, had abrogated such custom. He found further that the father of the plaintiffs bad consented to the sale and that there being no evidence to prove that he had given that consent male fide, the plaintiffs were estopped, from suing. On the question of collusion, he decided against the defendants, holding that there was no material on record to justify a finding of collusion. In view of his findings as to custom and consent of the father of the plaintiffs, he dismissed the suit. In this appeal learned counsel for the plaintiffs has challenged the findings of the trial Court on the questions of custom and consent. On behalf of the respondents, all the pleas put forward in the trial Court, except that relating to the ancestral nature of the property, have been pressed. Partap Singh respondent is an evacuee. A decision with respect to his interest in the property could, therefore, be given only by the Custodian. The question as to his interest was referred to the Custodian, and his finding is that the evacuee has no interest in the property except to the extent of Rs. 330, this being the amount for which the mortgage in his favour is found to be for necessity. Needless to say the learned Deputy Custodian has considered the questions, of custom and consent and found in favour of the plaintiffs. So far as the rights of the evacuee are concerned, the decree to be passed in this appeal A has to be in accordance with the decision of the Custodian. We proceed to determine this appeal in so far as it relates to the vendee. We will take up first the question whether Soofi Ghulam Nabi, alienor, was governed by agricultural custom. On behalf of the appellants, reliance has been. placed on the following facts :‑ (1) Kambohs are, a predominent agricultural tribe in the Lahore district and, many other districts. (2) They were consulted at the time of the preparation of the Riwaj‑i‑Am of the Lahore district. (3) They are the founders of the village Garhi Shahu, where the land in dispute is situate. (4) They constituted, at least originally, a compact village community. (5) They furnish Lambardars (6) Their occupation, at least originally, was agriculture and even now they depend upon the same to a great extent, though some of them have also adopted other occupations. (7) The land in dispute is Nahri land which, was being culti vated even after the alienations. Reliance has, at the same time, been placed on a number of instances in which the Kambohs of Garhi Shahu were found to be governed by agricultural custom. The first instance is con tained in Exh. P. Y. This is a judgment by His Lordship the Chief Justice as Additional District Judge, Lahore, in a suit relating to the Kambohs of Garhi Shahu. The suit was for a declaration that an alienation by a widow was without con sideration and necessity. The defendant had objected that the alienor was not governed by custom. A number of documents were produced in this case and the judgment deals with this question at some length. It was held that the Kambohs of Garhi Shahu were governed by agricultural custom. The judgment is dated the 20th of August 1937. The second instance relied upon is that contained in Exh. P. X., a judgment in a suit impeaching a sale by this very alienor and his brother. The suit had been filed by the present plaintiffs and had been decreed ex parte. The next document relied upon is Exh. P. 6, a judgment of the Additional Munsif, 1st Class, Lahore, dated the 21st of March 1921, in a case relating to the Kambohs, not of Garhi Shahu, but of Ichhra which is another suburb of Lahore. The suit was one relating to an alienation by a male and it was held that the parties were governed by agricul tural custom. Reliance is next placed on Muhammad Yusuf v. Muhammad Abdullah and others (A I R 1944 Lah. 117), wherein a Division Bench of the Lahore High Court held after full discussion that Kambohs of Garhi Shahu follow agricultural custom. On behalf of the defendants a number of instances were produced. The first is Exh. D. 12, a case decided by the Sub‑Judge, 4th Class, Lahore, on the Ilth of January 1937 relating to the Kambohs of Garhi Shahu. In that case one Ahmad Ali had been declared insolvent and a certain house belonging to the insolvent was sold by the official receiver. Ahmad Ali's son filed a suit for a declaration that the sale would not affect his reversionary rights. No documentary evidence had been produced in this case as will appear from the following observation of the learned Sub‑Judge who decided the case. "There is no Riwaj‑i‑Am, no Wajib‑ul‑Arz, no mutation, no judicial decision, no concrete instances." Sardar Balwant Singh v. Mst. Sardarni Kesar Kaur and others (A I R 1934 Lah, 81), in which it has been held that custom applied to agricultural land only, was relied upon by the learned Sub‑Judge and it was held that sales of houses were not governed by agricultural custom. The learned Sub‑Judge also found that neither the plaintiff nor his father possessed any land. Next are relied upon two judgments Exh. D. 13 and D. 14, relating to Kambohs of Lahore City. There was a mortgage by one Haji Ali Muhammad and a consequent sale. Two suits were filed, one by the mother of the mortgagor and the other by his step‑maternal uncle, on the ground that the house belonged to his father and that the wives of his father had a share in it under Muslim law. The contesting party was the Punjab and Sind Bank which pleaded that the parties were governed by custom and, therefore, the mothers of the mortgagor had no share in the property. Parties were butchers by profession, they owned no land and did not depend upon agriculture. Exhibits D. 25 and D. 23 are judgments of the Sub‑Judge and the District Judge in a case relating to the Kambohs of Garhi Shahu. The suit was one for a declaration that the sale by the father of ancestral property would not affect the reversionary rights of the plaintiffs. The learned Sub‑Judge held that the land sold, though ancestral was urban and, therefore, its alienation was not subject to the restrictions imposed by customary law. It was also pointed out that the "village autonomy had been broken" and the plaintiffs had, there fore, no locus standi to file the suit. A number of judgments had been produced before the learned Sub‑Judge, but he refused to consider them as they related to agricultural land and, therefore, according to him, had no bearing on the case. On appeal the learned Additional District Judge, Mr. Rangi Lal, following Fazil v. Sadah and others (51 P R 1910) held that where the common village bond had been broken, the rule that ancestral land was inalienable except for necessity did not apply. Exhibits. D. 26 and D. 27 are two judgments in declaratory suits under custom filed by the same plaintiffs in respect of two alienations by two brothers, Abdur Rahman and Abdur Rahim, Kambohs of Garhi Shahu. They are by the same Sub‑Judge and are in almost identical terms. It was held in these cases that the family of the alienors had drifted away altogether from agriculture, having adopted the profession of tailor master. The family was said to have settled permanently in Ceylon. The grandfather or the great‑grandfather had become an army contractor as tailor master as long ago as 1868 and since then the family had been carrying on this profession. There was also an admission by one of the vendors that he followed Muhammadan law. The next case relied upon is a judgment of the Senior Sub‑Judge, Lahore, Exh. D. 29, relating to the same family. Asuit had been brought on the basis of a mortgage for the sale of the mortgaged property by Bulaqi Mal, a well‑known money‑lender of Lahore, against Abdur Rahman and Abdur Rahim. It bad been pleaded in this case that Abdur Rahman and Abdur Rahim were governed by agricultural custom, but no evidence had been led and the learned Sub‑Judge relied upon a letter addressed by the mortgagor, Abdur Rahim, admitting that his ancestors depended upon trade and not upon agriculture and that he had got full powers of aliena tion. The learned Senior Sub‑Judge also held that the restrictions on powers of alienation applied to agricultural land and not to house property. Exhibit D. 28 relate to a suit filed by the widow of Abdur Rahim against the official receiver, claiming a lien on account of her dower and also her share on the basis of Muhammadan law. The official receiver, pleaded custom, but no evidence was led at all and the parties were held to be governed by Muhammadan law. Exhibit D. 24 is a judgment of the Commercial Sub‑Judge in a suit filed by the Punjab Co‑operative Bank against the heirs of Abdur Rahim on the basis of a mortgage of a house effected by Abdur Rahim. It was held that the family had been following the profession of tailor master for a long time and was riot bound by custom. Exhibit D. 17 is a judgment of the High Court relating, to the non‑agriculturist Kambohs of Lahore City. It may be mentioned here that in Muzaffar Muhammad v. Imam Din and another (I L R 9 Lah, 120) it had been held that the non‑agriculturist Kambohs of the city of Lahore are governed by Muhammadan Law. Exhibit D. 17 relates to the same family. In view of the fact that admittedly Kambohs of Garhi Shahu are founders of Garhi Shahu, they originally formed a compact village community, they furnish Lambardars, their original occupation is agriculture and they were consulted at the prepara tion of the Riwaj‑i‑Am, it could not be denied that originally they were bound by custom. That in fact is the finding of the trial Court and this is conceded too by the learned counsel for the vendee respondent. The only question is whether they have altogether drifted away from agriculture and have adopted urban pursuits of life so as to have abrogated custom. On this point two positions were open to learned counsel for the res pondent. He could either say that the particular family with which we are dealing had abrogated custom or that the Kambohs of Garhi Shahu as a whole had done so. The position taken up by learned counsel for the respondent is that the Kambohs of Garhi Shahu can now be divided into two categories‑those who still retain a connection with agriculture and, therefore, are governed by custom, and those who have altogether drifted away from agriculture and are now bound by Muhammadan law. His contention is that the present family is one falling under the second category. We have asked him as to what is the time when this family may be said to have abrogated custom and he puts it at about the year 1924. At least, he says, this abrogation was complete in the year 1938 when a mortgage was created by Soofi Ghulam Nabi in respect of tine whole of the property that remained with him. Learned‑ counsel has been unable to contend that all the Kambohs of Garhi Shahu are now governed by Muhammadan law in view of the judgments referred to above relating to the Kambohs of Garhi Shahu and holding that they were still governed by custom. We want to distinguish those cases on the ground that the parties in those cases still retained a connection with agriculture which element is wanting in the present case. The materials on which learned counsel asks us to hold that there is a complete drift in the case of this family are :‑ (1) The alienor, who is an M. A. of Aligarh University, had taken to service, being a hotel manager for some time at Mussorie, then a private tutor and after that the Superintendent of an orphanage of the Anjuman Himayat‑i‑Islam. (2) Abdur Rahim whose property was the subject‑matter of a number of judgments mentioned above was a son or a step son of a sister of Maula Bakhsh, father of the alienor. (3) The brother of the alienor, Muhammad Shafi, is a broker by profession, while Niaz Muhammad plaintiff is a clerk. (4) The whole of the land that this family possessed has now been alienated and when the mortgage of the land in dispute was effected in favour of Partap Singh in the year 1938, no land remained in the possession of the alienor. Learned counsel wants these matters to be considered along with the fact that there is no longer a compact village community in existence in Garhi Shahu, Garhi Shahu is now inhabited by a large number of persons of other castes and tribes in favour of whom not only residential sites but even agricultural land has been alienated. Learned counsel points out also that, according to the statement of Muhammad Husain (D. W. 5), no declaratory suits had been filed challenging alienations by Kambohs. This witness, however, is himself a purchaser from Kombohs and is interested in a decision as to the inapplicability of custom. On the basis of the facts mentioned above, we are unable to come to the conclusion that this family had, on the 30th of March 1943, the date of the sale, altogether drifted away from agriculture so as to have abrogated custom and that it falls in the second of the two categories into which learned counsel for the respondent divides the Kambohs of Garhi Shahu. It may be observed that, according to the excerpt of the Muharrir Patwari, some land was under the personal cultivation of the alienor and his brother even in the year 1923‑

24. Even up to the year 1937‑38, the alienor had some land, although it is not alleged that it was under his personal cultivation. All that had happened up to March 1943 was that the alienor had been for some time, probably very short, a hotel manager at Mussorie and after that a ‑private tutor and a superintendent of an orphanage, that he mortgaged whatever land remained with him in 1938, and that his brother, Muhammad Shafi, had probably alienated the whole of his share of ancestral land and had adopted the profession' of a property broker. Even considered along with the fact that there is no compact village community now in existence, the carrying on of other occupations, which may be only a means of adding to the income from agriculture, does not by itself show that this family has completely adopted urban pursuits and given up agriculture. The ancestral holding was in this case small, consisting only of 42 kanals and naturally the alienor and his brother had to look for other sources of income. The fact that whatever land remained with alienor was mortgaged, also, cannot have the effect of abrogating custom. It is to be kept in mind that in a case where some members o the village community, and particularly where the majority o them, retain their occupation as well as their custom, it become all the more difficult to hold that their own relatives descended from the same common ancestor and having social connections with them have abrogated custom, unless there be exceptional circumstances, like those existing in respect of the family of Abdur Rahim. In the case of that family, as already stated, adoption of another pursuit began as long ago as the year 1868. The grand‑father of the alienor was a tailor master of 23 Batallions in India and Ceylon. The family had almost taken up permanent residence in Ceylon. They had made declarations that they had given up their occupation of agriculture and that they were following Muhammadan law. They had given shares in inheritance to their daughter along with sons. In the present case, this family remains an agricultural family up to the year 1924 and even after that it is not clear when they ceased keeping land under personal cultivation. The only persons, who belonged to this family and are shown to be carrying on other occupations, are the alienor and his brother. There is nothing to show that the father's brothers or father's first cousins are also following other pursuits. The interval between 1924 and 1943 is not long. Custom cannot be cast off in a day. It takes a family that originally followed custom a pretty long time to become so settled in urban pursuits as to sever all connections with agriculture and custom. Custom takes time to be abrogated just as it takes time to develop. Muhammad Yusuf v. Muhammad Abdullah and others, which relates to the Kambohs of Garhi Shahu, is a case very similar to the present and the present may perhaps be stronger. In that case the alienor had become an army contractor in the year 1880. It was pointed out, however, that he had not entirely cut himself away from agriculture. In the present case too the alienor possessed land till 1938 and owned it till 1943. When it was urged before the learned Judges in that case that the family of the alienor had adopted other pursuits, the learned Judges said :‑ "The mere fact that a person belonging to a tribe, which is a predominantly agricultural tribe and was consulted at the time of the preparation of the Riwaj‑i‑Am, migrates to a town or temporarily ceases to cultivate land, would not be enough to justify the conclusion that he has abrogated customary law altogether. Custom, unlike a cloak, cannot be cast off at one's mere volition. If this were so, any person residing in a rural area would be in a position to free himself from the shackles of custom by merely shifting his residence to an urban area and abandoning his ancestral pursuits for the time being. In my view this could not have been the intention of those who propounded the customary law and who did not choose to be governed by their personal law in matters relating to their private and public life. Custom was to be the ordinary rule of decision in their case unless it was established indisput ably and unequivocally that the party concerned had for ever abandoned its rural proclivities and drifted away from its hereditary occupation for all times to come. This is the gist of the authorities which have laid down in the cases covered by them that the parties concerned were governed by their personal law rather than customary law. But even if it is possible to argue that some of the observations made in those authorities are much wider in their application, they were made at a time when members of the rural community were conservative in their habits and had not advanced so far in their general outlook in life. In the present state of advanced civilisation and progressive development in the province, it cannot reasonably be urged that if a member of a rural community settles in a town or takes to urban pursuits, he at once abandons the old custom governing his ancestors and adopts the law which prevails in the locality in which lie takes up his abode. The intention to do so must be clear and must have been given a practical shape not only casually and in a stray instance but effectively and permanently on more than one occasion whenever it arose." In considering whether this family has abandoned custom, Exh. P. X. too is not irrelevant. That is a plaint in a suit brought by the present plaintiffs contesting an alienation by the alienor and his brother. The plaintiffs were minors and the suit had been brought by‑their mother. The suit had been filed in the year 1942 and it had been decreed ex parte. The suit does show that the family did not intend giving up custom and it should be taken into consideration if the abrogation of custom depends to any extent on the intention of the members of the family. Ata Muhammad v. Muhammad Shafi and others (A I R 1944 Lah. 121), which relates not to Kambohs but to Arains of Mozang, is a similar case, for Mozang too, though originally a' village, his now become a part of Lahore and the original compact village community of Arains of Mozang no longer exists. The alienor had in that case been running a fuel shop and his father had been living on rental income. They had given up their occupa tion of tilling the land. Still it was held that it was not proved that the family had altogether severed its connection with agriculture and was, therefore, bound by Muhammadan law. We hold that it is not established that the family of the alienor has altogether drifted away from agriculture and is no longer bound by custom. The sale by the alienor could,' therefore, have been made only for consideration and necessity. Although we have considered the question of abrogation of custom at length, we would point out, as we did at the hearing, that strictly speaking the question does not arise in view of the judgment of the Full Bench in Bashir Ahmad and five others v. Muhammad and eight others (P L D 1956 Lah. 934). It has been held by the Full Bench that the power of alienation of a person is to be judged by the law in force at the time when he inherited the estate. It is admitted in the present case that' the alienor had inherited an estate under custom. It is in fact admitted that custom was applicable till the year 1924. If the estate that the alienor inherited from his father was limited, it could not be improved by any subsequent abrogation of custom. The judgment of the Full Bench relates to the effect of the Muslim Personal Law (Shariat) Application Act of 1948, and the case before us relates to the effect of abrogation of custom but there is no difference in principle. If it be held that even by enacting a law that custom was not hence forward to be the rule of decision, the estates of those, who have inherited when custom was in force, are not improved, there exists no good reason for holding that when the termination of custom is brought about not by a statute but by a simple abrogation of customs, different results would follow. If the Muslim Personal Law cannot have retrospective effect so as to make the male holder of the ancestral land an owner with full powers of disposition, it cannot be said that the mere adoption of urban pursuits will cure the defect that exists in his ownership. It is true that in the judgments which deal with abrogation of custom this point has not been discussed, but that is probably because it did not strike anybody and also there is the fact that when those judgments were delivered the proposition that the power of alienation is to be judged by the law as it stood at the time the estate was acquired, had not yet been laid down. The principle is now settled by the Full Bench though one of us had written a dissenting judgment. Another point to be kept in mind is this. Learned counsel admits that even up to the year 1924, the powers of alienor were limited. Niaz Ahmad plaintiff was either in existence at that time or had come into existence shortly afterwards. It is not possible for learned counsel for the respondents to contend that he had not the right to impeach the alienations of the property in dispute at the time of his birth. If he had that right then, he could not lose that right by any subsequent act of the alienor showing an intention to abrogate custom. We will now consider whether the father of the plaintiffs had given his consent to the sale so as to debar the plaintiffs from suing. The acts on which the plea of consent is based are that Muhammad Shafi, the father of the plaintiffs, had signed the agreement of sale executed by the alienor in favour of the vendee, and he had acted as a broker in the transaction of sale realising Rs. 236 as brokerage. It is also pointed out that while signing the agreement for sale, he had described himself as the brother of the vendor which would show that he was signing the document as a reversioner. The acts attri buted to Muhammad Shafi are not denied by the plaintiffs. Muhammad Shafi himself has been produced as a witness by the plaintiffs and he has stated that he was instrumental in bringing about the sale and it was he who got the benefit of the sale for he had appropriated the cash portion of the sale price. While we do not accept that he in fact got the benefit of the cash consideration, there can be little doubt that Muhammad Shafi had consented to the sale. However, while we hold that he had given his assent, it is not possible for us, keeping in view the antecedents of Muhammad Shafi, to dismiss the suit on this ground. A number of witnesses for the plain tiffs say that he is a man of loose morals, and this is in fact conceded by Khan Bahadur Inayat Ullah, a witness for the defendants. That he had parted with the whole of the land which he received from his father, is not denied though the area, it may be said, was not large. He‑ says he ,has even now a mistress and this may well be, true. While we have not accepted that he in fact got a benefit out of the trans action of sale, we cannot rule out that he may have had an eye on a part of the sale consideration. He had also received Rs. 236 as brokerage. This amount is small and by itself the receipt of this brokerage is not a matter of any importance, but in view of the character of Muhammad Shafi, it is not wholly irrelevant. Considering all these matters, we are not, in any case, prepared to attach to the conduct of a person of this character such importance that his assent may altogether prevent a suit by his sons though his consent may have some evidentiary value. After all, the rule that an assent by the father, unless proved malafide, would stand in the way of a suit by the sons, is really a rule of evidence which allows a presumption of the validity of the alienation to be raised on account of conduct of the father of the plaintiffs on the ground that he would not assent to an alienation which would preju dice his sons, unless he considered the alienation to be for necessity. This rule of evidence has now been elevated to the status of a bar to suits, but, truly speaking, it cannot operate as a bar because every reversioner has an independent right of suit and remains unaffected by anything that another reversioner does even though he be his father and in its essence the rule remains a rule of evidence. The presumption that this rule allows should be attached only to acts of persons from whom we expect, at least, ordinary prudence. We are not prepared to hold that Muhammad Shafi answers this description. We now come to the question of consideration and necessity for the sale. The total consideration for the sale was Rs. 11,805, consisting of the following items :‑ (1) Rs. 6,500 left with the vendee for payment to the previous mortgagees. (2) Rs. 1,650 paid to Maula Bakhsh from whom this amount had been received by the vendor as earnest‑ money for an agreement of sale of this property. (3) Rs. 3,655 paid before the Registrar. In respect of all items, except the first, payment of considera tion has been proved. This fact is not contested. The previous mortgage has not yet been redeemed. As to what is the effect of this will be considered later. As regards necessity the vendee has not tried to establish before us that the previous mortgage had also been effected for necessity. His approach is that he is not concerned with necessity for the mortgage and that what is to be considered is whether, in view of the existence of the mortgage and other circumstances, the sale had not become a necessity. Evidence on this point led by the defendant consists only of the statement of Dr. Abdur Rashid, the brother of the vendee defendant, who deposes to the representation that was made by the vendor, but the facts which have a bearing on the question of necessity are patent on the record and, after giving the matter our full consideration we have reached the conclusion that the transaction should be upheld. The facts are that this alienor had inherited 21 kanals from his‑father, income from which was obviously insufficient for his maintenance. He had been employed for some time as a hotel manager and then as a private tutor and at the time when the sale was effected he was Superintendent of the Orphanage, Anjuman Hamayat‑i‑Islam, getting only Rs. 80 p.m. He has four children and two wives though it is not clear how many children he had at the time when the sale was effected. He had been contracting debts and effecting alienations out of the small area that he had inherited and at the time when he created the mortgage in favour of Partap Singh this was the only property lef with him. His financial condi tion at the time was such that he was unable even to dis charge a debt of Rs. 330 which represents the amount of, the mortgage of the Hindustan Bank as this very property. The debts which he had been contracting were incurred persumable to meet his expenses, for there is not the slightest suggestion on the record of any extravagance or any improper conduct on his part and in fact one of the plaintiffs' own witnesses, Muhammad Musa, gives him a good character. In order to discharge his debts and to redeem a previous mortgage, he effected the mortgage in favour of Partap Singh. This was originally for a sum of Rs. 5,100 and there was no interest on this sum, but there was shortly after the creation of the mortgage a dispute between the parties which was referred to the arbitration and there was an award and a decree passed on the basis of the award. According to that decree, the amount of mortgage money became Rs. 5,800 and interest was to run not only on this amount but even on the expenses which might be incurred by the mortgagee in raising the structures on the mortgaged land. At the time when the sale was entered into the amount of the mortgage money had increased to Rs. 6,

500. So the position at the time when the sale was effected was that the alienor was getting a salary which was insufficient for the maintenance of his family and the only piece of land of which he remained an owner was going to be eaten up by the mortgage he had been forced by the circumstances to create. Redemption of the mortgage was impossible for him. If he sold the land he may be able to provide for the maintenance of his family and may also be able to do some business. There are the facts and this was also the representation made to the vendee. In the sale deed it had been stated that the mortgage amount had increased from Rs. 5,100 to Rs. 6,500, and that the vendor also needed money for the maintenance of his children. Dr. Abdur Rashid deposes also to a representation by the vendor that he wanted to do some business in order to make a living and this statement we are inclined to accept. It is true that ultimately he did not start any business and the only use, to which the balance of money which remained in his hands seems to have been put is that he secured a sale of mortgage rights in a house in May 1943, but that may be due to his not having been able to start a business with the money that he had. The alienor is an M. A. of the Aligarh University. As we have already stated there is not the slightest imputation against his character, and there is no reason for not accepting that his representations were true, that he was acting throughout as a prudent man would and that the alienations of his property were really the outcome of circumstances not within his control. We may also point out, though we do not base our decision on it, that the assent of Muhammad Shafi to the sale, though it does not raise a presumption of validity, may be some evidence of it. We would explain here that the fact that a part of the debt for which mortgage was created in favour of Partap Singh was a joint debt of the two brothers, does not, in any way, affect our conclusion as to necessity for the sale. We have no reason to assume that the alienor would incur liabilities on account of his brother. Muhammad Shafi, who was produced by the plaintiffs and has made a lengthy statement has not said anything for the purpose of proving that he had taken any benefit out of the previous mortgage and there is no difficulty in presuming that as regards the joint debt there had been some adjustment between the brothers. It will be observed that one of the reasons justifying the sale is that the amount of the previous mortgage was increasing and the property would have been devoured by the mortgage had it not been sold. It may be asked : if the previous mortgage has been found to be not for necessity, except to a small extent, then is it possible to hold that a sale if effected in order to redeem a mortgage without necessity was itself for necessity ? There is nothing wrong in answering this question in the affirmative. A mortgage may not be for necessity and yet it may be good as a just antecedent debt to justify a sale. It is not an ingredient of the definition of a just antecedent debt that it should be for necessity ; only it should not be extravagant. Extravagance has not been attributed to the alienor at all, and there is no reason for holding that the mortgage amount is not of the nature of a just antecedent debt. If an alienation can be effected in order to pay off an unsecured debt; ex hypothesi it can be effected to pay off a secured debt, subject, of course, to the proviso, that if the mortgage is with possession and there is no interest, the mere existence of the mortgage is not a good ground for a sale. Here the mortgage carried interest and the mortgagee was entitled to raise structures of the value of Rs. 10,000 and this amount could be added to the mortgage amount and would carry similar interest. The mortgaged property was, under the decree of the Court, to be sold, if the mortgage was not redeemed within two years. We would say that the award does not appear to us to be reasonable but that does not affect our decision. It would only show that the alienor was in the clutches of a clever creditor. We should hold, therefore, that the sale was for necessity, though the mortgage has to be declared not for necessity, except to the extent of Rs. 330, in accordance with the decision of the Custodian. But here a further question arises as to what are the rights of the reversioners in a case whether a mortgage is not for necessity while the sale is justified and what is the decree that should be passed in such a case. Can it be urged that by the sale the ownership has validly passed and as the ownership has passed there are no rights left in the reversioners even though the mort gage had been declared to be invalid ? Such a contention would be without force. In a case where a sale, which is subsequent to a mortgage, is perfectly valid, the rights of the reversioner would not be non‑existent if the previous mortgage was such as would not bind his reversionary rights. We will give an example. Suppose a property, worth a lac of rupees is mortgaged, in the first instance, for a sum of Rs. 90,000 and this mortgage is admittedly not for necessity. The equity of redemption is then sold for a sum of Rs. 10,000 and this alienation is admittedly for necessity. What would be the rights of the reversioner ? Would he lose his rights altogether just because the sale, which is an alienation of rights of the value of Rs. 10,000 only out of property of the value of Rs. 1,00,000, was for necessity ? The answer is obviously in the negative. From the point of view of the reversioner we have to regard the land as alienated only to the extent to which there exists an alienation which is binding on his reversionary rights. The balance of the rights in ancestral property are to pass to the reversioner. In the present case, the only alienation that does bind the reversioners is a mortgage to the extent of Rs. 330 and a sale of the equity of redemption. The sale is to be regarded as only a sale of the equity of redemption for on the date of the sale the only right which the alienor had in the property was the equity of redemption. What then will be the rights of the reversioner in this property at the death of the alienor ? In order to avoid confusion we will first consider what would be the position if the mortgage was wholly invalid and to determine that effect we would revert to the example we have cited. What would be the rights of the reversioner if the mortgage for Rs. 90,000 was without necessity and the sale of equity of redemption for Rs. 10,000 was with necessity ? The answer is this. The only alienation that binds the reversioner is of the right to redeem the property on payment of Rs. 90,

000. Take this right out of the total right of ownership and what remains belongs to the reversioner. That is the principle applicable to such cases What remains if we take out of total ownership the right to redeem on payment of Rs. 90,000 ? The answer is mortgagee rights of the value of Rs 90,

000. So the reversioner will become a mortgagee of the land for this amount. The rights of the reversioner would, in such cases, be the same as would be rights of the owner himself if he at first created an invalid mortgage and then effected a valid sale. Suppose the alienor had first created a mortgage in fact for Rs. 90,000 but he was a minor at that time or for a similar reason the mortgage had been found to be altogether void. After the mortgage, on a mis taken impression that the mortgage was valid, he sold the equity of redemption for a sum of Rs. 10,

000. What would be the rights of the alienor in the land ? They would be those of a mortgagee for Rs. 90,000, for the only right validly alienated is the right to redeem on payment of Rs. 90,000 and the remaining rights in the land belong to the alienor. It may seem strange that the reversioner would become entitled to the mortgagee rights in the property which was owned by his predecessor‑in‑interest, but that is the true cumulative effect of a mortgage that does not bind him and a sale of equity of redemption that does bind. In the present case, what was validly sold by the transaction of sale was "the right to redeem the land on payment of Rs. 6,500". Had the sale been the only transaction that bound the reversioner, the reversioner would, on the death of the alienor, be a mortgagee to the extent of Rs. 6,

500. But here there is also a previous mortgage valid to the extent of Rs.

330. Adding these two alienations together, the balance of rights which remains unalienated out of total ownership is a mortgage for Rs. 6,500 which is itself subject to a previous mortgage for Rs.

330. So the result is that so far as the relief with respect to the mortgage is concerned, there shall be a decree in accordance with the finding of the Custodian for a declaration that the mortgage in favour of Partap Singh shall not affect the rights of the reversioners, except to the extent of Rs. 330, that is, before taking possession of whatever interest the reversioners had in the property, they shall be liable to pay Rs. 330 to Partap Singh or his successors in‑interest. As regards the sale, the decree shall be that it will pass ownership to the vendee‑defendant, Mst. Rashida Begum,l but she shall remain liable to the payment of Rs. 6,500 out of! which Partap Singh is entitled to Rs. 330 and the reversioner to the sum of Rs. 6,

170. Interest will not run on the sum of Rs. 6,170, except from the date of the death of the alienor, because the sale of the right to redeem the land on payment of Rs. 6,500 will take effect as against the reversioner at death. From death interest will run on the sum of Rs. 6,170 at Rs. 7 per cent. per annum. This appeal is partly accepted and the plaintiffs granted a decree in terms stated above. A. H. Appeal partly accepted.