JUDGMENT

Broadway, J. - One Naman a Chela of mauza Chela in the district of Jhang on 11th March 1921, mortgaged 114 kanals 7 marlas of land to Khan Bahadur Nawab Maula Dad Khan, Honorary Magistrate, and one Hidayat. The mortgage was not to be redeemed for 30 years and the charge on the property was to the extent of Rs. 1,000.

2. On 30th March 1921, Naman executed a sale-deed by which he sold the same land, that had been mortgaged, to Lohla, Walli, Pathana and Ghulam Hussain for Rs. 3,500. The vendees undertook to redeem the mortgage when it became redeemable, that is, after 30 years. On 2nd May 1922, one Fatta, a first cousin of Naman, instituted a suit against the mortgagees and vendees challenging both the mortgage and the sale on the ground that the property mortgaged and sold was ancestral, that both the sale and mortgage had been without consideration and for no necessity and praying for a declaration to the effect that the sale and mortgage would not affect his reversionary rights on the death of Nawan. The alienees joined in contesting the suit. They denied that the property was ancestral, pleaded full consideration and valid necessity and also urged that inasmuch as the tribal bond in this village had been broken Naman had an unrestricted right to alienate his property.

3. The trial Court held that the property was ancestral, that the tribal bond had indeed been broken, nevertheless, on the evidence Naman was governed by custom and that he being a sonless proprietor his right to alienate was restricted. On the question of consideration it was found that only Rs. 600 of the mortgage consideration appeared to have passed and there was no necessity for that or any other amount. The plaintiff was accordingly granted a decree.

4. Against this decree the mortgagees and vendees have preferred this joint appeal and Mr. Muhammad Munir has taken us through the relevant portions of the record with meticulous care. It has been urged that the evidence on the record did not warrant the conclusion that the property was ancestral; further that inasmuch as it had been found that the tribal bond had been broken, the unrestricted right to alienate should have been recognized. Finally, it was urged that at least Rs. 600 out of the Rs. 1,000 which formed the consideration for the mortgage should have been allowed as being for necessity on the ground that it, at any rate, was a previous debt.

5. Now the evidence with regard to the ancestral nature of the property appears to me to be conclusive. The history of the village shows that it was founded by one Chela and that the village was called after his name. It is true that the case was not very well handled in the Court below by the various counsel concerned with the result that it became necessary to examine the kanungo more than once. Taking his evidence as a whole, as Mr. Muhammad Munir says we ought to do, the impression left on my mind is that according to the revenue-papers Chela is undoubtedly the ancestor of the plaintiff Fatta and the alienor Naman and as Chela owned the entire village. I see no reason to differ from the conclusion arrived at by the Senior Subordinate Judge that the property in suit is ancestral qua the plaintiff.

6. Next it was urged that as the tribal bond had been broken the presumption of a restricted right to alienate had been rebutted. That appears to have been fully recognized by the learned Senior Subordinate Judge who has clearly come to his conclusion in this part of the case on the evidence led by the plaintiff. A large number of sales and mortgages nearly 300 in all appear to have been effected within the last 35 years and it is these sales and mortgages which account to a large extent for the heterogeneous state of the village. The learned Senior Subordinate Judge points out in his judgment that none of these sales and mortgages were shown to have been effected by sonless proprietors in the presence of any collaterals. I have asked Mr. Muhammad Munir to selec