JUDGMENT

1. The appellant in this case is an unsuccessful plaintiff who brought a suit in the Court of the Subordinate Judge of Aligarh for the purpose of avoiding a certain sale in execution of a decree.

2. The decree under which this sale took place had been passed against a widow, Mt. Lachman Kuar, on the basis of two mortgages executed by her, and the case for the plaintiff, who claimed to be the reversioner, was that these two mortgages had been executed by Mt. Lachman Kuar without any legal necessity and that consequently neither they nor the decree which was obtained upon them bound the estate in his, the plaintiff's, hands. A number of defendants were impleaded, one of them being the auction-purchaser. The defendants second party are said to be persons who have taken transfers from the defendants first party.

3. The Subordinate Judge dismissed the plaintiff's suit, being of opinion that the mortgages just referred to had been executed for legal necessity and were binding upon the estate. This finding of the Subordinate Judge is challenged here in appeal and there has also been raised before us a question of law which, though not raised distinctly before the Subordinate Judge, has been allowed to be argued before us.

4. Before coming to the points which have to be determined it is necessary to set out a few facts regarding the history of the property in question and of the family to which it belonged. It is admitted that the property belonged at one time to a man named Tej Singh who died on the 28th January 1873. Tej Singh left surviving him two widows, Mt. Lachhman Kuar and Mt. Chhattar Kuar. Of these the former died on 24th November 1911 and the latter on 8th April 1922. Admittedly, after the death of the last surviving widow, the plaintiff-appellant is the nearest male heir of Tej Singh.

5. Taj Singh had a brother named Jawahir Singh, and the documentary evidence on the record shows that immediately after the death of Tej Singh the estate which had been in Tej Singh's possession was seized by Jawahir Singh. The case which Jawahir Singh put up was that he and Tej Singh were members of a joint Hindu family and that he, Jawahir Singh, was entitled to all the property by survivorship.

6. The two widows of Tej Singh, Lachman Kuar and Chhattar Kuar, thereupon brought a suit in the Court of the Subordinate Judge of Aligarh (O.S. No. 146 of 1873) for recovery of property belonging to Tej Singh. The case for the widows was that Tej Singh was separated in his estate from his brother Jawahir Singh and that they, as widows of Tej Singh, were entitled to possession. The suit was decreed by the Subordinate Judge, copy of whose judgment is on the record at pp. 36 to 44, An appeal was taken to the High Court and the judgment of the Subordinate Judge was affirmed. The High Court dismissed Jawahir Singh's appeal on 19th July 1875.

7. It will thus appear that after the death of Taj Singh these widows were involved in litigation which must have been expensive and it also appears from the record of the suit filed in 1873, that Tej Singh at the time of his death was indebted to a large extent. Jawahir Singh in that suit had raised a plea that Tej Singh had incurred debts.

8. There can be no doubt that after the widows thus obtained possession of the estate of their husband they came to an arrangement by which they partitioned the property for the purpose of convenient enjoyment, but it is necessary to state here that the only property that was left to these widows was a 10-biswas share in a village called Dhori. (The judgment then dealt with a sale-deed executed by both these widows on 2nd May 1898, giving in great detail the history of the family and of the property and proceeded.) To come now to the two mortgages with which we are particularly concerned in the present case. They are respectively of the dates 19th January 1895 and 12th January 1897. The first of these mortgages executed by Lachhmin Kuar was in favour of one Chhatar Mal who subse