IQBAL HUSSAIN, J.

( 1 ) THIS is an appeal against the judgment and decree of the Additional District Judge, Koppal, rai-chur District passed in Appeal No. 4/4 of 1358 Fasli confirming the judgment and decree passed by the Munsiff, Koppal, in O. S. No. 122/1 of 1856f. Even though this is an appeal against the concurrent findings of both the Courts below, points of law have been raised in this appeal which require consideration. According to the Civil Procedure Code of Hyderabad, greater latitude is given to the appellants in second appeal under Section 100 of the Code of Civil Procedure (Section 602 of the hyderabad Civil Procedure Code) than it is under the Civil Procedure Code as applicable throughout India. As this suit was filed long prior to the coming into force of the latter, opportunity is given to the parties to argue both on facts as well as on law.

( 2 ) THE facts of the case arc briefly as follows:

( 3 ) PLAINTIFF Gavisiddanna Gowda who is the respondent in the first appellate Court as well as before [his Court, filed a suit before the Munsiff's Court, Koppal, Raichur District for specific performance of a sale entered into by defendants 1 to 5 (appellants 1 to 5) in favour of the plaintiff. As the property was mortgaged with possession to the sixth defendant Venkavva, plaintiff prayed for possession of the suit property and for redemption of the mortgage in favour of the said Venkawa, the sixth defendant. The land in question is survey No. 740 -- 8 acres 4 guntas in extent called Shemi hola situated in the village Tadkal, Velburga Taluk. This land was mortgaged by defendants 1 to 5 in favour of the 6th defendant as far back as 26th Mehr 1347f for a sum of Rs. 425/ -. Defendants 1 to 5 resisted the claim of the plaintiff; but the sixth defendant joined hands with the plaintiff. Defendant 5 Kotre Cowda was a minor at the time of the filing of the suit and hence he was represented by a Court guardian and the Court guardian has filed a separate defence contesting the claim of the plaintiff to the suit property. His contention is to the effect that 5th defendant's father Basavana Gowda did not owe any debts and hence the alleged sale is not binding on him. He further advanced the plea that his mother who has been a party to the sale had no right whatsoever to sell the property.

( 4 ) ON these pleadings several issues were raised in the case of which the important ones are issues 4 and 5 which run as follows : "issue No. 4: Whether defendants 1 to 5 made an absolute sale of the suit land for a sum of rupees 1000/- (I. C.) on an oral contract at the end of Azur 1350 F and whether plaintiff has paid a sum of Rs. 575/- out of the sale amount to the transferors" "issue No. 5: Whether defendant 6 agreed to release the suit land from the mortgage in favour of the plaintiff on payment of Rs. 425/- by him?" Additional issues were framed of which the second additional is as follows: "whether mother of defendant 5 as his guardian sold the suit land to the plaintiff for legal necessity and whether she was competent to sell the property. " on these issues evidence was tendered by the plaintiff as well as the defendants and after considering the pleadings and the evidence, both the Courts have decided the issues in favour of the plaintiff and decreed his suit.

( 5 ) IT has been urged by Mr. Zakaulla, the learned Advocate arguing the case for the appellant's counsel that the transaction connotes an out and out sale and not a contract to sell. In Other words, it is not an executory contract but a contract that had already been executed. He further contends that there was no legal necessity for the sale of this property and hence the sale is not binding on the 5th defendant. Though mother is the natural guardian of the 5th defendant, it is argued by Mr. Zakaulla, that she is incompetent to sell the properly under the circumstances of this case. Lastly it is argued by him that so far as the patta of the suit land is concerned, it is a

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