ORDER

Collister and Bajpai, JJ. - This is a plaintiff's appeal, the plaintiff being the Bharatpur State through its administrator. On 15th January 1934 Bohra Dip Chand deceased, "who was the father of defendants second set took a lease of the village of Pani Gaon for a period of nine years from the plaintiff at an annual rental of Rs. 2,700. On 24th April 1924 he executed a security bond for Rs. 8,000 for due payment of the lease money and by means of that security bond he mortgaged a certain property in the village of Kanchrouli. Bohra Dip Chand defaulted in payment of the lease money in 1332 and 1333 Fasli; and then he gave up the lease, and soon afterwards he died. Thereafter the plaintiff State sued the sons of Bohra Dip Chand, i.e. defendants second set for recovery of the arrears of rent in respect of 1332 and 1333 Fasli and the suit was decreed by a Revenue Court in the District of Muttra on 25th May 1928. That decree was subsequently transferred for execution to Aligarh, in which district the property in suit is situated; and in execution of the said decree the property in suit was attached and 21st October 1929 was fixed for sale.

2. Meanwhile, however, defendants first set having obtained in 1927 a simple money decree against Bohra Dip Chand and his son Sardar Singh, defendant 6, put the property in suit to sale and purchased it themselves on 21st August 1929. They accordingly filed an objection under Order 21, Rule 58, Civil P.C. in the execution proceedings of the plaintiff,, and on 19th December 1929 the executing Court passed an order to the effect that the property in suit could not be sold in execution of the decree for arrears of rent of the Bharatpur State, but at the same time the Court recorded a finding that there was a charge of Rs. 8,000 of the State on the property in suit for recovery of which the State was competent to sue. The plaintiff State has accordingly instituted the present suit for recovery of the said amount with interest and costs by sale of the property in suit. The suit was contested by defendants first set and the main ground of contest was that the property in suit was the joint ancestral property of Bohra Dip Chand and his sons and that the mortgage was without legal necessity and was therefore invalid. A written statement to this same effect was put in by Lakshmi Chand, defendant 9, while Karan Singh defendant 7 filed a written statement in which he alleged that according to the plaintiff's own case he had separated from his family before the execution of the deed of lease and he had therefore been unnecessarily impleaded and was, entitled to his costs.

3. The Subordinate Judge of Aligarh who tried the suit has found against the plaintiff on the main issue; that is to say, he has found that Bohra Dip Chand was not competent to charge the property under the hypothecation bond of 24th April 1924 which he executed by way of Security. The suit has accordingly been dismissed with costs and the plaintiff State has come to this Court in appeal. The appeal is contested by defendants first set. Defendant 7 is also represented by counsel and he claims his costs on the ground that he has been unnecessarily impleaded in the appeal. Various pleas have been taken before us by learned Counsel for the plaintiff appellant; but some of them can be briefly disposed of. The first plea which we will deal with is a plea whereby learned Counsel for the plaintiff appellant attacks the finding of the Court below that the property in suit was ancestral. It appears to have been accepted at the trial that Bohra Dip Chand and three of his sons (other than Karan Singh) were joint; there does not seem to have been any allegation to the contrary. The property was apparently purchased by Bohra Dip Chand from the heirs of his brother after partition, but the evidence of plaintiff's own witness Ram Sarup discloses that there was a large nucleus of ancestral property from the funds of which the purchase might have been mad