JUDGMENT

Dalal, A J C - This is an appeal from a remand order of the lower Appellate Court. Unfortunately the remand order was rendered necessary by the terms of the judgment of the first Court. Hindu sons sued to set aside a sale by the father on the ground of want of legal necessity or of the payment of an antecedent debt. This was quite a correct position to take up. It was not the duty of the Hindu sons to allege that the debt was contracted by the father for the purposes of immorality or was illegal or was of an illusory character. The learned Judge of the trial Court has mixed up the consideration of a private sale with those of a public sale under which property passes out of the family on a suit for sale.

2. The appellant's learned Counsel argued that the trial Court has considered how the consideration of the sale-deed is made up and held that the items of consideration went to pay antecedent debt. I do not agree. There is no such finding of the trial Court. The trial Court did consider the items of consideration but left the matter hanging half way. There is no specific finding that the consideration was made up of items which went to pay antecedent debts. The lower Appellate Court was correct in confining its attention to the one finding of the trial Court to the following effect:

I hold that plaintiffs after admitting that the sale-deed in suit was not contracted for illegal or immoral purposes, and the consideration of the sale was not of an illusory character cannot maintain this suit as the property was passed to third persons.

3. This is not a correct view of law when there has been a private sale. It is for the purchaser to prove that the sale took place out of legal necessity or for the payment of antecedent debt.

4. I desire to make this point clear because the trial Court must inquire into it over again. If the defendant succeeds in proving that the consideration was made up of items used for the payment of antecedent debt he would be entitled to resist the claim of the plaintiffs. What the lower Appellate Court has done is to set aside the finding quoted by me above and not any other portion of the reasoning of the judgment of the trial Court. Only Issue No. 6 has been decided though the trial Court has touched other issues unadvisedly in his judgment. It may be repeated that only Issue No. 6 is decided in favour of the plaintiffs and no other issue.

5. I dismiss this appeal with costs.