Judgment

DWIVEDI, J.:- There was one Laxman Govind Mungi. He had a mistress, Bhagirathibai. From her he had two sons, Sridhar and Sadashiv. The name of his wife was Jankibai. From Jankibai he had two sons, Krisnaji and Dattatraya. Vimlabai is the wife of Krishnaji. Kumudini is the wife of Dattatraya. Vidyadhar is the son of Krishnaji. Udaykumar and Shri Praksh are the sons of Dattatraya. Laxman Govind Mungi, Jankibai, Bhagirathibai, Sridhar and Sadashiv died before the commencement of the suit out of which this appeal has arisen. Laxman Govind Mungi died on March 26, 1940 and Jankibai on June 15, 1953.

2. The suit property is a plot of land situate in Nasik. It bears No. 954. In 1909 it belonged to one Satyabhamabai. She sold it on December 6, 1909 for Rs. 1,250/-. The sale is evidenced by a registered sale deed executed by her in favour of Jankibai. After the sale the name of Jankibai was mutated in the Record of Rights. One her death, the names of Krishnaji and Dattatraya were mutated in her place. The plot was allenated by them to Usman Gani Ahmed Saheb Konkani some time in 1963. Their sons and their wives have instituted the suit out of which this appeal has arisen. They asked for setting aside the alienation and for partition of their shares in the plot. It was alleged that the plot belonged to Laxman Goving Mungi and constituted ancestral property in the hands of Krishnaji and Dattatraya. The alienation was made without any legal necessity and without any benefit to the estate. It was ineffective against their interest. Usman Gani Ahmed Saheb Konkani was the first defendant in the suit. Krishnaji and Dattatraya were defendants 2 and 3.

3. Usman Gani Ahmed Sahib Konkani contested their claim. He filed a written statement. His allegations were that the suit property belonged to Jankibai and was not ancestral property in the hands of Krishnaji and Dattatraya. They had full right to alienate the property and the plaintiffs had no right in the property. He also pleaded that the alienation was binding on the plaintiffs as they have "received full benefit of the amount of consideration of the said transaction." He also raised several other pleas in his written statement.

4. Krishnaji and Dattatraya filed a joint written statement. As usually happens in such cases, they admitted the claim of the plaintiffs. They admitted that the suit plot belonged to Laxman Govind Mungi and was ancestral property in their hands. They also admitted that the plaintiffs had an interest in the land. They also admitted that the sale was without legal necessity and without benefit to the estate.

5. The trial Court framed as many as 17 issues. Issue 1-A and 2 are relevant for this appeal. They are:

"1-A. Whether plaintiffs prove that their grand-father one Laxman Govind Mungi purchased suit land benami in the name of Jankibai on 6-12-1909 as alleged?

2. Do plaintiffs prove that the suit property ..... is the ancestral property of the joint family consisting of plaintiffs and defendants 2 and 3?"

6. The contesting parties produced their oral and documentary evidence. After examining the evidence, the trial court held that Laxman Goving Mungi had purchased the suit land benami in the name of his wife Jankibai and it was ancestral property of the joint family consisting of the plaintiffs 1 to 3 and defendants 2 and 3. The findings on the issue about legal necessity and benefit of the estate and other issues were against the first defendant. In the result, the trial court decreed the suit of the plaintiffs for 17/24 shares in the suit land. Feeling aggrieved with the judgment and decree of the trial court, the first defendant filed an appeal in the Bombay High Court. The High Court has reversed the judgment and decree of the trial court and has dismissed the suit of the plaintiffs. The High Court has held that Laxman Govind Mungi did not purchase the suit land and that Jankibai was the real owner of it. The High Court did not accept the plaintiffs plea of the sal