SRIVASTAVA, J.:

The pLalntiffs - Harkesh Singh and Mukhtar Singh are the two sons of Risal Singh. Risal Singh had a sister, and Mangal Singh, the present defendant-appellant, is the son of that sister. On the 10th of September 1930, Risal Singh executed a deed of gift in respect of the properties in dispute in favour of his sisters son, defendant-appellant Mangal Singh. The pLalntiffs sued to avoid this deed of gift on the ground that they formed a joint Hindu family with their father, Risal Singh, and alleged that as the gifted property was their joint family property, Risal Singh had no right to give it away to the defendant.

They, therefore, cLalmed a declaration that the deed of gift was null and void and cLalmed possession over the properties. Along with the donee Mangal Singh, Risal Singh was also joined in the suit as proforma defendant. Only Mangal Singh contested the suit. He did not dispute the fact that Risal Singh and the pLalntiffs formed a joint Hindu family but tried to support the gift mainly on the ground that the gifted properties were self-acquired properties of Risal Singh and not the joint family properties of his family.

The pLalntiffs, he contended were, therefore, not entitled to challenge the gift or to recover the properties. He pleaded in the alternative that the ostensible gift in his favour was really a sale deed. The transfer had been made in the garb of a gift only to avoid pre-emption. He said that the sale being justified by legal necessity was binding on the pLalntiffs even if the properties sold were held to be joint family properties.

2. The trial Court held that the properties were joint family properties and that the transfer in favour of the defendants was really a gift and not a sale. It therefore decreed the suit in respect of seven out of eight items of properties. It dismissed the suit in respect of the remaining one item on the ground that that Item was no longer held by the defendant, it paving been sold to satisfy a prior encumbrance.

3. The defendant, Mangal Singh, went up in appeal and the learned Civil Judge reversed the finding of the trial Court that the proper-lies in dispute were the joint family properties of the pLalntiffs and their father. He took the new that the properties which Risal Singh had gifted were really his self-acquired properties and the pLalntiffs could not on that account object to the gift. Apparently, the plea that the transfer in favour of Mangal Singh was really a sale and not a gift was not reiterated before the learned Civil Judge. So he did not go into that question. He allowed the appeal and dismissed the suit.

4. The pLalntiffs then came up in second appeal which was heard by Malik, J., (as he then was). He disagreed with the Civil Judge and was of the opinion that on the facts admitted or proved it must be held that the property was the joint family property and Risal Singh had no right to make a gift for the same in favour of Mangal Singh. He, therefore, allowed the appeal and restored the decree of the trial Court. He however granted permission for a Letters Patent Appeal and the present appeal is the result.

5. The main question which arises for decision is whether the properties which Risal Singh gifted to Mangal Singh on the 10th of September 1930 were the joint family properties of his family or were his self-acquired properties.

6. Risal Singh and his sons admittedly formed a joint Hindu family. It is further admitted that family possessed two pieces of ancestral properties, 3 bighas 4 biswas poknta (equal to 10 bighas kham) of zamindari property in village Khurrampur, and 7 bighas 2 biswas of occupancy holding. Two other areas of land, one of 27 bighas and another of 91 bighas 16 biswas appear to have been entered in the papers in the name of Risal Singh. No evidence was however led by the parties as to how and when these two areas were acquired by Risal Singh. It is however common ground that she entire source of income of Risal Singh o