Sir Lancelot Sanderson. -

This is an appeal by the legal representatives of Bishen Singh, who was the defendant 1 in the suit, against the judgment and decree of the High Court of Judicature at Lahore, dated the 22nd July 1923. The High Court's judgment reversed the judgment and decree of the learned Subordinate Judge, who tried the suit. The suit was brought in July 1917, by the plaintiff Ujagar Singh, against Bishen Singh and two other defendants, viz., Abdul Rahman Khan, sometimes called Balwant Singh, and Jaswant Singh, sons of Gurbaksh Singh, to recover possession of the land mentioned in the plaint, situate in the Gujaranwala district, which was alleged by the plaintiff to have been part of the ancestral property of Hira Singh, the grandfather of the plaintiff. The plaintiff alleged that the defendants 2 and 3 had a half-share in the said property, but that, by reason of a private partition, they had taken other lands in exchange for their share in the suit land, that consequently they had no further interest therein, and that they have recognized the claim of the plaintiff to the lands in suit, which had been held by Mt. Malan.

The defendant, Bishen Singh, was in actual possession of the lands in suit, and relied upon a mortgage executed on 6th May 1896, by Mt. Malan, who was one of the widows of Hira Singh. A pedigree of the family is included in the respondents' case in this appeal, and is as follows :

The plaintiff alleged that Mt. Malan had no power of alienation of the land in dispute and that he was in no way bound by the mortgage. The defendant, Bishen Singh, then put in a further pleading, alleging that Mt. Malan mortgaged the land for valid necessity, for payment of debts, and for expenses incurred in connexion with the marriages of her daughters. The defendant further stated that if the mortgage money interest and costs were paid he had no objection to release the land. The learned Subordinate Judge held that Mt. Malan had limited powers of alienation but that the mortgage was executed for valid necessity, and that it was binding on the plaintiff. He held further that the suit was barred by the Indian Limitation Act. In the ordinary course the plaintiff's suit would have been dismissed, but the learned Judge said that

Having regard to the fact that the case has been dragged on for pretty long time, and defendant 1 is not disinclined to redeem the lands provided he is paid his charges and the costs of improvements, I think the plaintiff may be allowed to redeem the lands in this case.

He accordingly made a decree in the plaintiff's favour for possession of the land in dispute, provided the plaintiff paid Rs. 8,734-4-0 in addition to the costs of buildings to be determined thereafter which had been built by the defendant, Bishen Singh ; and he directed that the parties should bear their own costs. Both the plaintiff and the defendant, Bishen Singh, appealed to the High Court ; the two appeals were heard together, and disposed of by one judgment on 22nd July 1923. The learned Judges of the High Court were of opinion that no necessity whatever had been proved for the mortgage, they therefore allowed the plaintiff's appeal, and gave the plaintiff a decree for possession of the land in suit without any payment.

The defendant's cross-appeal was dismissed, and it was directed that his representative should pay the plaintiff's costs in both appeals and in the trial Court. The High Court did not deal with the question of limitation ; but this, is now of no importance in view of the fact that the learned counsel who argued this appeal on behalf of the appellants stated that he did not rely on that point.

In the first place the question of necessity may be dealt with. The learned Judges of the High Court came to the conclusion that Mt. Malan had ample funds to meet the expenses of the marriages of her daughters, and that defendant 1 had failed to establish any necessity whatever for borrowing money. This opinion was largely bas