JUDGMENT

Mukerji, Ag. C.J.

1. This appeal has been referred to a Full Bench because the learned Judges before whom the appeal came thought that the case of Anantoo Kalwar and Another Vs. Ram Prasad Tivari and Others, AIR 1924 All 465 had been wrongly decided. The suit arose in the following circumstances: A pedigree at p. 15 of the printed paper book will show the relationship that existed among the parties to the suit, except defendant 1, who is a transferee. Ram Prasad, Ram Singh and Mt. Mahtab Kunwar, mother of the plaintiff Chiranji Lal, executed a usufructuary mortgage for Rs. 12,441, on 15th July 1924. Chiranji Lal brought the suit out of which this appeal has arisen to obtain a declaration that the mortgage-deed was not binding on him, and he also sued for recovery of possession to the extent of his third share. The first Court went into the question of legal necessity and came to the conclusion that there was none except to the extent of Rs. 500-4-0, being a third share of the total amount binding on the whole family. It accordingly directed that the plaintiff should be put in possession of a third share of the property on payment of Rs. 500-4-0.

2. The plaintiff filed an app