P L D 1959 (W (PLP)

Rs. (a) Due to the vendees under a previous martgage 100 0 0 (b) Due to the vendees under a bond dated19‑2‑1948 150 0 0 (c) Paid by the vendees to Abdul Ghani under a bond dated 18‑3‑1949 1,000 0 0 (d) Received in cash for food etc. 250 0 0 Total 1,500 0 0 The learned Additional District Judge has reproduced the reasons which prevailed with the learned Senior Civil Judge in holding that these items stand proved. On the first item the trial Judge had found that some land of Ali Bahadur was under a previous mortgage with Khushal Khan and the appellants before me had purchased those mortgagee rights which is evidenced by mutation No. 1341 (Exh. D. 5). He found that this debt was incurred by Ali Bahadur and had not been proved to have been contracted by the widows, and on that finding fie held the aforesaid debt to be for valid necessity. With respect to item (b), the learned Senior Civil Judge found that the bond dated the 19th of February 1948 (Exh. D. 4) shows that the widows borrowed a sum of Rs. 300 from the appellants for meeting the expenses of a civil suit brought by the plaintiff‑respondent against them. Judgments Exhs. D. 1 and D. 2 in the previous litigation have been placed on the record which show that from the end of 1945 to May 1949 this protracted litigation had gone on. He found, and the learned Additional District Judge has concurred in that finding, that this item was for necessity. With respect to item (c), the learned trial Judge had found that the bond (Exh. D. 6) dated the 18th of March 1949 executed by the widows in favour of Abdul Ghani was for the purposes of celebrating the marriage of the daughters of Ali Bahadur which had taken place during those days. Abdul Ghani, the creditor, had ‑gone into the witness‑box to depose that the money was advanced by him and was paid when the impugned sale was effected, and he made an endorsement on the back of Exh. D. 6 to the effect that the liability has been discharg ed. With respect to item (d) the statement before the learned trial Judge was that the plaintiff‑respondent's father had forcibly taken possession of the entire land in the possession of the widows and he was even convicted for trespass and this sum of money was borrowed by the widows in order to maintain themselves as they had no other source of income. In these circumstances, the learned Senior Civil Judge came to the conclusion that the neces sity for this debt also had been sufficiently proved. After stating these facts, the learned Additional District Judge ought to have focused his attention on each item and the evidence on which the conclusions bad been recorded and the reasons assigned by the trial Court. He has, however, done nothing of the kind, and by a judgment in which all facts are mixed up and no attempt appears to have been made to sift the evidence, he is content to make an observation with respect to item (c) that "There is no cogent evidence worth acting upon to prove that the marriages were at all celebrated or that anything was needed to be spent on any marriage or was actually spent. Thus the necessity to the extent of this sum of Rs. 1,000 is all a bogus affair" and then he goes on to say : "No marriage of any daughter of the widows was going to be actually celebrated. The widows had no powers to anticipate the future needs and to sell away the properties of which they were only limited owners till death or re‑marriage." With this criticism he disposed of the aforesaid item and declared that the alienation to the extent of Rs. 1,000 was without necessity. It is to be regretted that the evidence of Fazal khan, plaintiff's own witness, has been completely ignored by the learned Additional District Judge. He had made a statement that the daughters of Ali Bahadur were wedded some four years ago and their marriages were celebrated by the widows. In the face of this evidence, the learned Additional District Judge had to make a little effort to discover the cogent evidence and such a mistake was not possible if any sifting of the evidence had been done by him. No sanctity attaches to a finding which is in utter disregard of the evidence B in the case and it is difficult to hold in the face of that evidence that no marriage was at all celebrated and that for a marriage of daughters no expenses are needed or because they happen to be widows they ought not to celebrate the marriage of their daughters. I am constrained, therefore, to upset this finding which otherwise, as a Court of second appeal, I would have been precluded to interfere.

5. With respect to the item of Rs. 250 above, the learned Additional District Judge was content with the observation that the widows could not have anticipated future needs and they could not sell the properties of which they were not owners. The learn ed trial Judge upheld it on the ground that the. plaintiff‑respon dent's father had put the widows out of the entire property of which they were in possession and was tried for trespass and even convicted. When widows with four daughters are faced with starvation they have to anticipate nothing. The grim need has its own logic and its own way of working. This again indicates no attempt to get to grips with the issues involved, and I am cons trained even there, in disagreement with the learned Additional District Judge and in agreement with the learned trial Judge, to uphold the latter's finding that the necessity for this amount also has been established. The learned Additional District Judge refers to the previous litigation in which the plaintiff‑respondent and his father tried to usurp the entire property and becomes critical of this fact for recording a finding that the present alienees also are playing the game which previously the plaintiff's father had set himself on. I have not discovered the result which apparently a critical examination by the learned Additional District Judge had produced. This is purely a surmise, and a surmise is a slender foundation for recording a conclusion. In disagreement with the learned Additional District Judge and in agreement with the trial Judge, I hold that the appellants had established that the sale in their favour was with consideration anti for necessity.

6. For the reasons given above, I accept the appeal, set aside the decree of the learned Additional District Judge and restore that of the trial Judge declaring that the aforesaid alienation was valid for legal necessity. The suit of the plaintiff‑respondent with respect to this item of the property stands dismissed with costs throughout.

7. Mr. Ziaullah, Advocate, appears to be the counsel for the respondents on the record. I waited for him for the whole of the day and sent for him several times, but he did not turn up. The proceedings are, therefore, ex parte against the respondents. K. B. A./A. H. Appeal accepted.