A sale-deed executed by a father is not binding upon his sons if it is not executed for legal necessity or for the payment of antecedent debts.

JUDGMENT :- This second appeal arises out of a suit filed by three plaintiffs to obtain a declaration that a sale-deed dated 26-5-1936 executed by defendant 3, who is the father of plaintiffs 1 and 2 and the husband of plaintiff 3, was not binding upon their interest in the suit property which is a house situated at Ahmednagar. The circumstances giving rise to the suit are shortly these.

2. The house in suit originally belonged to a family of three brothers, of whom defendant 3 was one. There was a partition in the year 1932 between the three brothers and at this partition the family house fell to the share of defendant 3. The evidence shows that at the partition defendant 3 obtained property worth about Rs.40,000. It appears that defendant 3 was then a minor and the property which fell to his share was managed by trustees who made over possession to defendant 3 in or about the year 1934. The fact of handing over possession is evidenced by a receipt which is produced in the case. It also appears from the evidence that during the time the trustees were in management a business called a "cloth business" was being carried on on behalf of defendant 3.

3. On 2-12-1935, that is to say, after defendant 3 attained the age of majority, he executed in favour of defendants 1 and 2 a mortgage for the consideration of Rs.5,000 and by this mortgage he gave as security the house in suit. On 21-1-1936, he effected a second mortgage in relation to the same property in favour of defendants 1 and 2 for the consideration of Rs.2,000. On 3-3-1936, he effected a third mortgage in relation to the same house in favour of defendants 1 and 2 for the consideration of Rs.3,000. It is obvious that the total consideration of these three documents was a sum of Rs.10,000.

4. Plaintiff 1 was born on 23-5-1936, and plaintiff 2 was born in the year 1939. On 4-4-1940, the two plaintiffs and their mother, plaintiff 3, filed this suit to obtain the aforesaid declaration. The basis of the plaintiffs claim was that the sale-deed executed in favour of defendants 1 and 2 did not affect their right, title and interest in the suit house, notwithstanding the sale-deed executed in favour of defendants 1 and 2 on 26-5-1936.

5. Defendants 1 and 2 resisted the plaintiffs suit and raised various contentions. One of the principal contentions was that the sale-deed dated 26-5-1936, was binding upon the plaintiffs because that sale-deed was executed either for legal necessity or for the payment of antecedent debts.

6. The trial Court raised a number of issues and held that plaintiff 1 was entitled to a declaration that he had a half share in the suit house and that his share was not affected in any way by the sale-deed dated 26-5-1936, It is to be observed that the trial Court also came to the conclusion that no connection was proved between the various alienations and the alleged immorality of defendant 3, and also the conclusion that the sale-deed was not justified either by legal necessity or for the payment of antecedent debts. From the decree made in the suit defendants 1 and 2 preferred an appeal in this Court and this Court, by its order, dated 28-7-1946, held that the appeal was not competent and directed the same to be presented to the proper Court. The appeal was then presented in the District Court, Ahmednagar. While the appeal was pending in this Court, plaintiff 1 died and plaintiffs 2 and 3 and defendant 3 were substituted as his heirs and legal representatives. When the appeal was presented in the District Court those plaintiffs and also defendant 3 were shown upon the record of the appeal as heirs and legal representatives of deceased plaintiff 1. At the hearing of the appeal before the Civil Judge, S.D., with appellate powers, it was contended that inasmuch as plaintiff 1 died pending the appeal, the cause of action did not survive to the surviving plaintiffs and defendant 3 because the right of plaintiff 1 to question the alienation of the father was a pers