( 1 ) THIS is a letters patent appeal by defendant 2 and the legal representatives of defendant 1, mukhtar Singh. The plaintiff respondent Hardan Singh claimed that he was a son of Har Lal singh who died in the year 1920, that he and his elder brother Mukhtar Singh were members of a joint Hindu family, that on Har Lal Singhs death in 1920 Mukhtar Singh was the head of the family and that on 20-12-1927, he had executed a mortgage in favour of Zabar Singh, defendant 3, which mortgage being without legal necessity was not binding on him (plaintiff ). The plaintiff claimed that defendant 2, Tej Singh, had a simple money decree against Har Lal Singh, that in execution of that decree some property had been sold which was purchased by Tej Singh, defendant 2, and that as the plaintiff was not a party to the execution proceedings he was not bound by the same. On these allegations the plaintiff claimed possession of a half share in the property in suit.

( 2 ) THE suit was contested by all the three defendants and it was alleged that Hardan Singh was not a son of Har Lal Singh. The defendants case was that Har Lal Singhs wife Bhup Kuer had become unchaste and that Har Lal Singh had turned her out about the year 1895. Bhup Kuer thereafter filed an application for maintenance under Section 488, Criminal P. C. which was dismissed by the Magistrate on the grounds that she was living in adultery with one Umrao singh and that Hardan Singh had been born of this adulterous intercourse on l-3-1903. It was alleged in the alternative that the mortgage and the auction sale were binding on the plaintiff as they were for legal necessity to pay off antecedent debts.

( 3 ) THE trial Court held that Hardan Singh was a legitimate son of Harlal Singh. It decided the other issues also against the defendants and decreed the plaintiffs suit.

( 4 ) THE lower appellate Court disagreed with the finding on the first issue and held that Hardan singh was not a son of Harlal Singh and dismissed the plaintiffs suit. It did not go into the other issues.

( 5 ) ON second appeal a learned single Judge of this Court remitted the following two issues :

1. Was Bhup Kuer turned out by Harlal Singh and did she live with Umrao Singh? 2. Did Harlal Singh have no access to his wife during the period when Hardan Singh could have been begotten? the learned Judge directed the lower Court to decide the other issues that it had left undecided

( 6 ) THE lower Court answered the first issue in the affirmative and on the second issue its finding was that there was no evidence on the record that Harlal Singh had no access to his wife during the period when Hardan Singh could have been begotten. As regards the other issue that it had left undecided it held that the auction sale in favour of defendant 2 was binding on the family as the property had been sold be pay off the debts of the father Harlal Singh as that the mortgage in favour of defendant 3 was not proved to be for legal necessity.

( 7 ) THE learned Judge on return of the finding held that in view of Section 112, Evidence Act, headas Singh must be presumed to be a son of Harlal Singh and that, as it was not established that Hardan Singhs claim was barred by limitation the suit must be decreed as against defendant but dismissed as against defendant 2. The learned Judge gave leave to appeal under the letters patent, and the defendants, other than defendant 2, have filed this appeal.

( 8 ) MUKHTAR Singh, defendant 1, died during, the pendency of the appeal, and Kundan Singh his son, and Sm. Lado, his wife, have been brought on the record as his legal representatives. The appellants before us are Kundan Singh and Sm. Lado, legal representatives of Mukhtar Singh and Zabar Singh, defendant 3.

( 9 ) LEARNED counsel for the appellants has urged that the facts clearly established non-access between Sm. Bhup Kuar and Harlal Singh as it was clear that Sm. Bhup Kuar had been turned out by Harlal Singh about the year 1895 and that sh