A gift of property to an adopted son by his adoptive father, under a will, is considered to be ancestral property in the hands of the adopted son and remains joint Hindu family property.

P.C.Pandit, J.

1. This is a defendants appeal against the order of the learned Senior Subordinate Judge, Karnal, decreeing in part the plaintiffs suit and granting them a decree for a declaration that the sale in suit shall not bind them except to the extent of Rs. 4,5257- only, on payment of which they would be entitled to claim joint possession of the house in dispute.

2. On 8-12-1952 Chancier Parkash, defendant No. 1, sold the house in suit for Rs. 8,000/- by a registered deed to Ram Parkash, defendant No. 2. On the same day, he also executed a rent-note in favour of the vendee. Later on 2-8-1956 on the basis of this rent-note, Ram Parkash obtained an order from the Rent Controller for the ejectment of Chancier Parkash from the house in suit. In execution of this order, he applied for the delivery of possession. Thereupon, on 1-10-1956, Radhe Sham and others, plaintiffs 1 to 5, the sons, and shrimati Puma Devi, plaintiff No. 6, the wife of the vendor, brought the present suit for a declaration that the sale-deed dated 8-12-1952 executed by defendant No. 1 in favour of defendant No. 2 was null and void and ineffective as against them, as the house in dispute was the Joint Hindu family property and the sale had been made without consideration and family necessity. It was also prayed that the plaintiffs were not liable to be dispossessed from the house in question in execution of the order of the Rent Controller obtained by defendant No. 2 against defendant No. 1.

3. The suit was contested by defendant No. 2, wno. Inter alia, pleadad that the house in dispute was not the joint Hindu family property of the plaintiffs and defendant No. 1; and that the sale made by defendant No. in his favour was for consideration and necessity. It was also stated that the house in suit had previously been mortgaged with possession on the basis of which a money-decree for sale of the mortgaged property by auction, had been passed against defendant No. 1. The previous mortgagee was getting the house sold by auction in execution of this decree and defendant No. 1 had no other alternative except to sell the same.

4. On the pleadings of the parties, the following issues were framed : -

1. Whether the house in suit is the joint Hindu family properly of the plaintiffs and Chander parkash, defendant-1 ?

2. If issue No. 1 is proved whether the sale in suit made by Chander Parkash, defendant 1, in favour of Ram Parkash, defendant 2, is for consideration and binds the other co-parceners?

3. Whether the house in suit was under mortgage when the sale in suit was made? If so, what was the extent of that mortgage charge?

4. Whether Ram Parkash has redeemed the prior mortgage and to what effect?

5. Relief.

Additional issue, Whether on the date of this suit the defendants ot anyone of them was in possession of the suit property and this suit for declaration alone is not competent?

5 The trial Judge held that the house in suit was the joint Hindu family property of the plaintiffs and defendant No. 1; that the entire consideration for the sale in suit had been proved, but necessity to the extent of Rs. 4,525/- only, being the mortgage amount, was established; that the house in suit was already under mortgage, when the sale in dispute was made and defendant No. 2 had redeemed, the prior mortgage and he was, therefore, entitled to be paid this amount before possession of the house was taken from him by the plaintiffs and that the plaintiffs, who were already in joint possession of the property in dispute, could file the present suit for a declaration and the same was, therefore, competent. On these findings, the suit was partly decreed, as mentioned above. Against this, the present appeal has been filed by defendant No. 2.

6. Learned counsel for the appellant has raised two contentions before us-- (1) that the Court below was in error in holding that the house in suit was the joint Hindu family property of the plaintiffs and defendant No. 1, and (2] that nec