JUDGMENT

Lindsay, J. - This litigation has its origin in a deed of sale executed on the 30th of September, 1914, by one Sita Ram and his mother Mt. Parbati in favour of Haji Muhammad Ghafoor Bakhsh, by which the executants purported to convey certain shares in kasba Ujhani and mauza Mahona for a sum of Rs. 13,110 in order to satisfy certain debts and to meet personal expenses. It was represented in the document that the houses in which the vendors were living had been advertised for sale and had to be saved. It was stated moreover in the deed that Sita Ram was the only heir of Mt. Parbati and that he and she were competent to sell the property. Sita Ram further stated that he had an only son, Deo Dat who had given his consent to the sale. This was a false statement for it appears that he had no less than eight sons.

2. In the deed of sale the details of consideration are set out. It appears that there were a number of debts owing which the vendee undertook to pay, and amongst these was a decretal debt for Rs. 1,750 owing to one Kanhaiya Lal.

3. Ghafoor Bakhsh had some trouble in obtaining mutation on the basis of this document. It appears that the other sons of Sita Ram intervened and made trouble and all this resulted in criminal proceedings taken both by Ghafoor Bakhsh and by the sons of Sita Ram. Eventually in the early part of March 1915 (about 15th. March), Ghafoor Bakhsh got possession and mutation.

4. On the 30th September 1915, one Shankar Prasad filed a suit to pre-empt this sale. One of the defendants to this suit was Ghafoor Bakhsh and another was his wife Mt. Rashida Khatun. The reason why this lady was impleaded was that after the sale of the 30th of September 1914, and before the suit for pre-emption was brought she had purchased in execution of a decree a share of the Mahona property which had already been sold to her husband. We have already mentioned that there was a decree in favour of one Kanhaiya Lal for Rs. 1,750. It seems that after the execution of the sale-deed in his favour Ghafoor Bakhsh failed to pay off this debt and Kanhaiya Lal took out execution and brought the property which had been mortgaged to him to sale. It was purchased on the 21st January 1915, by Rashida Khatun for Rs. 792 and the sale was confirmed on the 13-4-1915. The pre-emption suit brought by Shankar Prasad was decreed on a compromise on the 3rd of January 1916. Under this decree Shankar Prasad was directed to pay Rs. 3,074-7-0 to Ghafoor Bakhsh and his wife; this sum representing all the consideration which had actually passed from these purchasers and including the Rs. 792 which Rashida. Khatun had paid for the property in the execution sale.

5. We now come to the 31st October 1917, on which date there were five sons of Sita Ram for the purpose of recovering the property. This suit was Suit No. 185 of 1917. Shankar Prasad, the pre-emptor died just after this suit was filed and his sons and grandsons were made defendants in his place. One of these sons was Bansidhar and two of Bansidhar's sons were Brij Lal and Lallu who were both minors and for purposes of the suit Bansidhar was appointed their guardian ad litem.

6. The sons of Sita Ram who were the plaintiffs' heirs alleged that the property sold on the 30th September 1914, was joint ancestral family property; that Sita Ram had no right to sell and that there was no legal necessity for the sale. The sons and grandsons of Shankar Prasad contested the claim on a variety of grounds. The case was fought out to a finish in the Court of the Subordinate Judge of Budaun who held that legal necessity had been proved to some extent. The result was that he gave a decree by which the defendants were to be entitled to retain possession of the property if they paid Rs. 2,094 into Court for payment to the plaintiffs. If they failed to do so then the plaintiffs were to be entitled to recover possession from the defendants on payment into Court of a sum of Rs. 7,845-8-3.

7. The plaintiffs appealed agai