JUDGMENT

Dalip Singh, J. - On 22nd April 1929, Sham Das, as manager of a joint, Hindu family, consisting of himself and his two minor brothers, executed a deed of mortgage for Rs. 825 in favour of the plaintiff. On 14th December 1929, Sham Das executed a deed of exchange in respect of the house under mortgage. The price of the house was fixed at Rs. 2,000 and the house to be given in exchange to Sham Das Rs. 1,500 was made up of Rs. 956-4-0 was priced at Rs. 500. The remaining principal and interest due on the previous mortgage, Rs. 14 due as rent, as the previous mortgage was with possession, Rs. 464 due on a bahi account to the plaintiff, and Rs. 65-12-0 to be paid before the sub-registrar. The defendant, Sham Das, refused to register the deed when presented for registration and the plaintiff was obliged to have the deed compulsorily registered, which he did sometime in April 1930. In the meantime on 23rd December 1929 Sham Das and his mother, Menghi Bai. sold the same house to defendant, Jassu Mal, and delivered possession to him in consideration of Rs. 2,500, Rs. 956 were left with the vendee for payment to the plaintiff on the prior mortgage, Rs. 500 were paid before the sub-registrar and it was alleged that about Rs. 900hadbeen paid at home. The present plaintiff, after having his deed compulsorily registered, brought the present suit for possession of the house which had been sold to him. He made the alienors and Jassu Ram, the second vendee, parties to the suit. Various defences were raised which need not now concern us, but the trial Court decreed the suit holding that Sham. Das was the karta of the joint Hindu family, that the deed in favour of the plaintiff had priority over the deed in favour of Jassu Ram and that there was sufficient necessity proved for the sale to the plaintiff.

2. The alienors did not appeal from this decree, but Jassu Ram, the second vendee, appealed to the learned District Judge, who accepted the appeal, holding that the transaction as between the alienors and the plaintiff was not a fair one though this plea had not been raised previously at all and also that the necessity for the alienation to the plaintiff had not been proved. The plaintiff has come in second appeal, and it is urged on his behalf, first, that Jassu Ram could not raise the question of necessity at all, which was ai matter wholly between plaintiff and the alienors, and secondly, that, even if he could do so, so far as the mortgage was concerned, Jassu Ram by withholding that amount had acknowledged the validity of the mortgage and therefore could not challenge its necessity. That if the said mort-.gage was admitted then obviously there was necessity for the sale and the small amount which the trial Court had held to be not proved for necessity was not sufficient to set aside the sale. In reply Jassu Ram contended that he could raise the question of necessity, as he stood in the shoes of the alienors, that he could also challenge the validity of the prior mortgage because qua the plaintiff it was an alienation to the plaintiff himself but qua Jassu Ram it was a debt due to a third party and that the proper way of judging the amount which was not held proved for necessity was to consider that only the equity of redemption had been sold and the proportion should be judged after leaving out the amount due on the mortgage. The last argument seems to me to involve a contradiction. The mortgage is either good or not good and it cannot, first of all, be held to be bad and then held to form a good part of the consideration for the sale. It seems to me very doubtful whether Jassu Ram could raise any question of necessity. An alienation by a karta of a joint Hindu family is not void but only voidable at the instance of the members of the family. If they accept the alienation no third party has any right to challenge it. However at any rate it seems to me clear that Jassu Ram by withholding the amount of the mortgage furnished the best of