JUDGMENT

1. Mt. Kalka Devi, wife of Babu Ishri Prasad, a local pleader, sued in the Court of the Subordinate Judge of Sitapur for sale on foot of a mortgage dated 4th March 1915. The deed was executed by the defendant Ganga Bakhsh Singh, defendant No. 1, whose sons are Dwarka Nath Singh, Ajodhya Nath Singh, Tribhuwan Nath Singh and Janki Nath Singh, defendants 2 to 5. Mt. Rani Bitiya, wife of Ganga Bikhsh Singh, was also impleaded as a defendant, because subsequent to the mortgage there had been a partition and Ganga Bakhsh Singh's wife had been allotted 1/6th share. The other parties to the suit were a daughter, two subsequent transferees and a receiver of the property of Ganga Bakhsh Singh, who had been declared an insolvent by the District Court. The lower Court passed a decree for sale against 1/6th share at present belonging to Ganga Bakhsh Singh subsequent to the partition. The suit was dismissed as against the sons, wife and daughter, and the plaintiff has appealed in consequence.

2. The grounds of appeal were:

(1) that the property at the time of the mortgage was the absolute property of Ganga Bakhsh Singh, in which his sons had no interest:

(2) that there was legal necessity for the debt:

(3) that the defendants Dwarka Nath Singh and Ajodhya Nath Singh had consented to the transfer:

(4) that the defence of the sons was barred by the principles of Section 41 of the Transfer of Property Act:

(5) that the share of the wife of Ganga Bikhsh Singh was in any case liable to be sold:

(6) that oven if the property in suit was not an estate under the Oudh Estates Act No. I of 1869, it was governed by the Punjab Code and not by the law of the Mitakshara, and that therefore Ganga Bakhsh Singh was absolute owner thereof:

(7) that the interest in the lower Court's decree was incorrectly calculated.

3. On 17 th March last the learned Counsel for the appellant put in a further ground that she was entitled to at least a money decree against all the defendants.

4. The period of payment under the mortgage was one year, so the cause of action for a money decree arose on 4th March 1916 and the suit was instituted within a period of 6 years on 28th February 1922.

5. In our opinion none of the grounds originally urged has force. The following is the pedigree of the defendants:

    TABLE

6. In another suit brought by another mortgagee of Ganga Bakhsh Singh the same plea was raised before a Bench of this Court that Ganga Bakhsh Singh was absolute owner of the property and therefore competent to make the mortgage. One of us was a party to the judgment delivered in that case. Seasons were given in great detail in that judgment in support; of the finding that Ganga Bakhsh Singh held the property as manager of a Hindu joint family under the Mitakshara and that his sons had a share in the property. The case is reported in Ram Ratan v. Chaudhri Ganga Bakhsh Singh A.I.R. 1923 Oudh 265. We need not Repeat the arguments here. Wa have beard nothing from the learned Counsel of the plaintiff-appellant to induce us to disagree with the opinion of the Bench in the former suit. We did not call upon the respondents' learned Counsel to answer this plea.

7. As regards legal necessity the debt was contracted by the managing members of the joint family for the purpose of prosecuting a litigation, and admittedly such a purpose is not one of legal necessity. In fact this point was not argued independently of consent by the sons to the transfer.

8. As to consent there is no evidence that the sons consented to this particular transaction; nor is there any such allegation. It was urged that Dwarka Nath Singh attested other deeds, of which the consideration was spent wholly or in part in prosecuting this particular litigation. Ganga Bakhsh Singh sued for the possession of property which was transferred by Mt. Ram Kali, widow of Bisheshar Bakhsh Singh to the Kayasthya Pathshala. A mortgage (Exh. 28, p. 73) in favour of a third person was attested by Dwarka Nath Singh. T