Das, J.

1. This appeal arises out of a suit instituted by the plaintiffs for setting aside a deed of sale dated the 13th June 1889, executed by their maternal grandmother, Phulbasu Kunwar, in favour of the defendants respondents. The plaintiffs are the reversionary heirs of Sitaram Singh, the husband of Phulbasu Kunwar. It is alleged by the plaintiffs that there was no legal necessity in respect of the transaction of the 13th June 1889, and that in the circumstances they are entitled to recover the property from the defendants. The learned Judge in the Court below has dismissed the plaintiff's suit.

2. It appears that there was a usufructuary mortgage in respect of this property executed by Sitaram Singh, in favour of the defendants, and, according to the recital in the deed of sale, the consideration money was applied firstly in paying off the money due on the usufructuary mortgage, secondly in discharging certain debts which had been incurred by the widow, and thirdly in meeting the marriage expenses of her daughter and grand-daughter. The deed of sale was executed in 1889 and, as the learned Judge in the Court below has pointed out, the defendants are entitled to rely on the recital in the sale deed as evidence in support of their case that the necessities mentioned therein did in fact exist.

3. The learned vakil appearing for the appellant does not dispute that the widow was entitled, in the circumstances, to raise money for the purpose of discharging the debt incurred by her and for performing the marriage ceremonies of her daughter and grand-daughter; but he contends that there was no necessity to discharge the usufructuary mortgage by sale of the mortgaged property. It is contended that under the terms of the usufructuary mortgage it would be open now to the plaintiffs to redeem that mortgage and it is pointed out that their right to redeem should not have been jeopardised by the widow by the transfer of the property to the mortgagee.

4. In my opinion this argument is right and should prevail.

5. There is no evidence in the record that the widow could not have raised the money required by her to pay off the debt due by her and for the expenses in connexion with the marriage ceremonies of her daughter and granddaughter from properties other than that which formed the subject-matter of the usufructuary mortgage. It was for the defendants to prove that there were no properties available to the widow out of which the money could be raised. That being so it follows that the lady was not entitled to raise the mortgage amount by sale of this property.

6. It follows that the plaintiffs have the right to recover the property upon payment to the defendants of Rs. 2,000 with interest upon Rs. 1,100 at 12 percent per annum with yearly rests from the date of sale up to the date when the money is actually tendered to the defendants.

7. We allow the plaintiff six months time redeem.

L.C. Adami, J.

I agree