JUDGMENT Tudball and Muhammad Rafiq, JJ.
1. The following pedigree will explain the right under which the plaintiff has come into court for the reliefs that he seeks:
2. Ramjas was the maternal great grandfather of the plaintiff Ramjas died in 1853 leaving him surviving a widow Musammat Hardei Bibi, and daughter, Musammat Lakhi Bibi. He left no male issue. According to the evidence in the case he died possessed of a house in Cotton Street, Calcutta, and certain movables. Soon after his death his widow and daughter left Calcutta and took up their residence in Banaras. Musammat Hardei Bibi died on the 15th of June in 1869. in 1888, the village Mahrani was mortgaged to Musammat Lakhi Bibi by Sadanand Misra. Ten year, afterward, on the 7th of July 1898, The village was sold to Musammat Lakhi Bibi. On the 6th of May Rs. 20,000. The money was ostensibly raised to help Gopi Nath, a friend of her husband Sanwal Das. The mortgage to Nur Muhammad was a simple mortgage. He sued on foot of the mortgage to recover the money due on it. The claim was brought against both Musammat Lakhi Bibi and her husband Sanwal Das. The latter, it may be mentioned here, pleaded, inter alia, that his wife had no interest in the village of Mahrani and could not create a valid mortgage on it. He claimed the Village as his own property. The case was, however, compromised, and a decree was passed on the 2nd of May, 1905, under which Nur Muhammad was put into possession of the village as a usufructuary mortgagee. Musammat Lakhi Bibi died on the 23rd of April, 1906. Ram Kishan, the cousin of the plaintiff, died on the l7th of April, 1910, and Sanwal Das, the maternal grandfather of the plaintiff, died in 1909. Musammat Lakhi Bibi had before her death sold the Calcutta house of her father on the 7th of March, 1878, to Musammats Dhani Bibi and Soni Bibi for Rs. 19,500. According to the recital in the deed and the pleas in defence, the house was sold to pay off the debt of Ramjas. On the 16th of January, 1911, the plaintiff, Bal Krishna Das, instituted the suit out of which this appeal has arisen for the recovery of 1/2 of the house and village on the allegation that the sale of the house by Musammat Lakhi Bibi was invalid and made for no legal necessity and that the village Mahrani had been purchased by her out of the funds left by Ramjas and that the mortgage created on it by Musammat Lakhi Bibi was also of no validity as against him, inasmuch as it was not created for legal necessity. He impleaded, as defendants in the case, the representatives of the original vendees of the house and Nur Muhammad the mortgagee, as also his aunt Musammaat Gulab Dei and his surviving cousin Sri Kishan. The claim against his aunt and against his cousin was for movables and a grove alleged to have belonged originally to Ramjas. During the pendency of the suit a compromise was entered into between him on the one side and Musammat Gulab Dei and Sri Kishan on the other. Under the said compromise the plaintiff withdrew his claim as to the movables and the grove against Gulab Dei and Sri Kishan and they on their side relinquished their right in the of the Calcutta house and the village Mahrani in favour of the plaintiff. The latter then applied to the lower court for amendment of the plaint, asking that his claim should be extended to the entire house and the village against the other defendants. The lower court disallowed his prayer, but on appeal to this Court the plaintiff was permitted to amend his plaint. The case therefore went to trial as against the other defendants in respect of the entire house and the village. After carefully considering the evidence produced by the parties before it, the lower court held that the Calcutta house had been sold by Musammat Lakhi Bibi for legal necessity and that the village of Mahrani was purchased by her out of her own funds and not out of any left by Ramjas, The claim was accordingly dismissed. The plaintiff has come up in appeal to this Court and challenges the findings of the court below against him. The other appellant Har Krishna Das is a transferee of a portion of the interest of the plaintiff and hence appears on the record. It is said that he purchased a portion of the interest of the plaintiff subsequent to the decree of the lower court but before the filing of the appeal to this Court. It is contended on behalf of the appellants that there is no evidence, or at least no evidence worth the name, which can be relied upon to prove that there was any legal necessity for Musammat Lakhi Bibi to sell the Calcutta house in 1878. On the other hand, there is ample evidence on behalf of the appellants to show that; Ramjas was a man very well off, who left cash, jewellery and furniture that Musammat Lakhi Bibi eventually inherited, and it was out of the moneys inherited from her father that she purchased the village of Mahrani. Further it is urged that, even if it be conceded that Ramjas died leaving a debt of about Rs. 8,000 and that he left no other property than the Calcutta house, Musammat Lakhi Bibi should not have sold the house but paid off the debt by leasing or mortgaging the house or raising the money in some other way, The evidence of the witnesses that is printed in the appeal before us and which bears on the question of the position of Ramjas, consists of the statements of seven men including the plaintiff himself. Most of them say that Musammat Lakhi Bibi inherited wealth from her mother Musammat Hardei Bibi who in her turn had got it from Ramjas, but almost all of them had to admit in cross-examination that their knowledge is not first hand and is based on hearsay. It is in evidence that Ramjas kept account-books. The persons who would presumably be in possession of those books would be the descendants of Ramjas. They must be in the possession of the plaintiff himself, or of his aunt, or his cousin, with whom he has compromised. He could easily have produced those boots or called for their production to prove what property was left by Ramjas other than the Calcutta house. They would have also been of importance as rebutting the evidence against the defence about the debt alleged to have been left by Ramjas. It would serve no useful purpose by reproducing here at length the evidence of each witness and showing that none of the witnesses purports to give first hand evidence. We have, therefore, no reliable evidence before us that Ramjas died a wealthy man and left considerable cash and jewellery in addition to the Calcutta house. The village Mahrani was mortgaged by Musammat Lakhi Bibi in 1888, 35 years after the death of her father and 19 years after the death of her mother. It is in evidence on behalf of the plaintiff himself that Musammat Lakhi Bibi had money and that her husband Sanwal Das made and lost lakhs of rupees. We would particularly refer to the evidence on this point of Raja Munshi Madho Lal and of Jewa Nand Misir. The latter is the purohit of the plaintiff and his family. He would be a person in a position to know the family affairs of the plaintiff. It is quite conceivable that Sanwal Das, though an extravagant man, gave money, to his wife to provide for her in case he came to grief. Anyhow the onus was on the plaintiff to prove that the village Mahrani was purchased by Musammat Lakhi Bibi out of the funds left by her father, which onus in our opinion has not been discharged. If the village was not bought out of the funds left by Ramjas, it is immaterial to speculate as to where she got money from to buy it. As the plaintiff has not proved that the village Mahrani was purchased out of the funds left by Ramjas, his claim to it must fail. The next question is as to the validity of the sale of the Calcutta house, The evidence for the defence proves beyond a shadow of doubt that Ramjas at the time of his death was indebted to the extent of about Rs. 8,000 to one Moti Chand, The latter pressed for his money and Musammat Lakhi Bibi and her mother raised the money by executing a mortgage on the house and paid off Moti Chand. One Ganga Prasad advanced the money. He transferred the mortgage to Ram Kishan. In the meantime Musammat Lakhi Bibi, it seems, kept the mortgage debt down by paying off portions of the principal and some interest. Ram Kishan, however, was not satisfied, and he pressed for payment. In March, 1878, Musammat Lakhi Bibi sold the house to Musammats Dhan Bibi and Soni Bibi for Rs. 19,500, out of which Rs. 7,775 were paid in discharge of the mortgage to Ram Kishan. These facts are proved by the evidence of Nobin Chandar and Kaniram and some documents. It is also in evidence that the purchasers of the house made inquiry as to the alleged debt of Ramjas through their solicitor, one Mr. Pitter. Mr. Pitter after making regular inquiries came to the conclusion that the allegation of Musammat Lakhi Bibi that her father had died indebted was correct and that she was selling the house to enable her to pay off that debt. The debt at the time was at least 25 years old and at the time of the sale the debt was increasing. We have, therefore, no hesitation in holding on the evidence in the case that the sale of the house by Musammat Lakhi Bibi was for legal necessity. It is, however, urged on behalf of the appellants that she need not have sold the house but should have resorted to some other measure to raise the money and pay off the debt of her father. For example, it is suggested that she should have either mortgaged or leased the house for a long term and thus raised the money. There is no force in the argument. She had mortgaged the house and found that the debt was increasing and she was not in a position to pay it off. Had the mort gagee continued, the house would have gone to the mortgagee by the swelling of the interest. As to the lease for a long term of years, we have no data to go upon, nor is there any ground for us to say that she could have made a better bargain by selling a portion of the house in Calcutta. As far as we can judge from the evidence in the case the house was an indivisible parcel of property that could not be sold piecemeal. It has not been shown to us that the sale of the house was for an inadequate price. The present value of the house after it had been added to and built upon by the purchasers is no indication of its value in 1878, Even if no additions had been made, the value of the house would have actually been much more now than it was in 1878, for it is a well known fact that the price of immovable property has gone up enormously all over the country, particularly in a town like Calcutta. In the circumstances of the present case, considering that Musammat Lakhi Bibi had no other means of paying off the debt of her father, the course adopted by her was a perfectly legitimate one. We would also remark here that the plaintiff has brought his suit after a lapse of a number of years, nearly 33 years. He waited until the persons who were in a position to throw light on the transaction were all dead. His maternal grandfather, Sanwal Das, died only two years prior to the suit. Had he been alive he would have given us more detailed information about the sale of the house. The plaintiff was questioned on the point and he replied that he could not sue earlier because Sanwal Das always put him off by saying that he, Sanwal Das, would bring about a compromise with the vendees and the mortgagee Nur Muhammad. The explanation on the face of it is absurd. We think that the court below came to a correct finding with regard to the Sale of the Calcutta house. The claim of the plaintiff was rightly dismissed. The appeal fails and we dismiss it with costs. The two sets of respondents will be entitled to their separate costs.