barred by time. The appeals were filed within time on the 30th of October 1919, but were returned on the 11th November as copies of the judgments of the trial Court had not been filed. The appeals were re-filed on the 27th November 1919 and if that be taken as the date of iling the appeals they were time-barred. In Molu Mal v. Sri Ram (1) it was held that a memorandum of second appeal to the High Court must be accompanied by a copy of the judgment of the Court of first instance, and if the latter is not presented till after the period of limitation has expired, the appeal should ordinarily be rejected and barred by limitation. Under Order 42 read with Order 41, rule 1 Civil Procedure Code, the only copies which it is necessary should accompany the memorandum of appeal appeal are copies of the appellate decree and of the judgment on which it is founded; but this Court in exercise of the powers conferred upon it has made a rule that in the case of second appeals the memorandum of appeal shall, in addition to the copies specified in Order 41, rule 1, be accompanied by a copy of the judgment of the Court of first instance. This rule is dated the 17th October 1919 and was published in the Punjab Government Gazette of the 24th October 1919 as Notification No. 4685.G.

Now, the appeals in this case were filed on the 30th October 1919, in other words six days after the new rule was published in the Government Gazette. It is, therefore, contended that there is sufficient cause within the meaning of S. 5 of the Limitation Act for admitting the appeals beyond time. In our opinion there had not been sufficient time for the new rule to become well-known by the 30th October 1919 and as the appeals were re-filed within a reasonable period we consider that there is sufficient cause within the meaning of S. 5 of the Limitation Act. It is, however pointed out by Dr. Nand Lal that a copy of the judgment of the Court of first instance in the case relating to the mortgage has not been filcd up to the present time. The Subordinate Judge

(1) [1921] 2 Lah. 227--63 I.C. 33.

disposed of both the suits Nos. 103 and 104 of 1917 by one and the same judgment and a copy of this has been filed in the appeal relating to the sale. In the case relating to the mortgage the Subordinate Judge recorded merely a brief order .

'For detailed judgment see File No. 103 of 1917. Plaintiffs suit dismissed, parties to bear their own costs. File.'

This is not really a judgment at all and in our opinion there has been a substantial compliance with the law by filing a copy of the detailed judgment in the appeal relating to the sale. We, therefore, overrule Dr. Nand Lal's preliminary objection.

As will appear from what we have already stated the vendee was different person to the mortgagee. Ordinarily the payment by an alienee of an antecedent debt due to a third person is justified and there is no necessity for the alienee to go further and to prove that the previous debt was in itself incurred for necessity. In the present case, however, the mortgage deed was attested by Muhammad Gul, the father of the vendee. Muhammad Gul was the agent of the vendee, his son, and the contract of sale was entered into through him. The learned District Judge therefore, was of opinion that the vendee's father and agent had reason to know or believe that the object for which the mortgage debt was raised was not a necessary one. He, therefore, held that the vendee was not protected merely by the fact that the antecedent debt was due to a third party. It is urged before us that the

only knowledge with which Muhammad Gul was fixed was that the mortgage debt was raised to pay off a previous mortgage and for purposes of trade, and that the mortgagee was not bound to see that the money advanced by him was applied to the purposes for which it was alleged to have been taken. It appears that at the time of the mortgage Chiragh Ali Shah had only some 10 or 11 kanals of land. This was not sufficient for him to earn his living as an agriculturist. It was held in the case reported as Santa Singh ▼.

Waryam Singh (2) that money borrowed for purposes of trade could not be regarded as money borrowed for a necessary purpose. What the Judges said in that case was that

"We have no doubt that village custom would not look with favour upon the conversion of a Jat agriculturist into a shopkeeping trader and would not countenance an alienation of ancestral land in order to enable such agriculturist to carry on the business of his shop.'

one.

was

The facts of that case are distinguishable from those of the present There the alienor was an agriculturist and lambardar and alienating a part of the ancestral pland in order to engage in trade. In the present case the alienor had no other means of subsistence and under these circumstances we think he was justified in alienating the serai for the purposes stated by him. We do not think that the Division Bench in the 1915 case intended to lay down that under no circumstances could a member of all agricultural tribe alienate ancestral property for the purposes of engaging in trade.

Having regard to the facts we think that the vendee in this case was fully justified in paying off Rs. 750 due to the prior mortgagee, and that he was not bound to show how the money advanced by the mortgagee was actually expended. As regards the balance of Rs 500 the finding of the learned District Judge is one of fact and cannot be contested in second appeal.

The result is that we accept both the appeals and setting aside the orders of the lower appellate Court we dismiss the plaintiff's suit in regard to the mortgage. In the suit relating to the sale we give the plaintiff a decree to the effect that the sale shall not affect his reversionary rights except to the extent on Rs. 750, and that he can recover the property sold on payment of this sum. Under all the circumstances of the case we direct that the parties should bear their own costs in all Courts.

Appeal accepted.

(2) [1914] 19 P. R. 1915--207 P.L.R. 1914--147 P. W. R. 191424 I. C. 361.

1924 LAHORE 43 SHADI LAL, C. J. AND FFORDE, J. Jai Gopal Singh-Plaintiff-Appellant.

V.

Muna Lal and others-DefendantsRespondents.

S. A. No. 58 of 1920, D/- 2nd February 1923, from the Dt. J., Hissar, D/25th August, 1919.

Civil P. C.. O. 41 R. 22-Appeal barred by time--Cross-objections cannot be heard. An appeal must be properly before the Court in order that cross-objections may be heard. Where the appeal was adm tted y barred by time,

Held. neither appeal nor the cross-objections were properly before the Court, and accordingly the Court had no power to proceed with the matter. (P. 44 C. 1]

Badri Das-for Appellant. Oertel and Hazara Singh-for Respondents.

Fforde, J.-In this case the Court of first instance gave judgment for the plaintiff for possession of the land in dispute upon payment of a certain sum of money within a definite period. Against this judgment plaintiff appealed and defendant filed cross-obje tion.

It was held by the first appellate Court, on the preliminary point raised by defendant, that the appeal was late, but, proceeding to dispose of the case on the merits, on the assumption that such finding was wrong, the learned District Judge dismissed the plaintiff's appeal and allowed the defendant's cross-objections.

The matter now comes before us on second appeal by plaintiff. Counsel for the appellant now submits that his appeal in the Court of the District Judge was barred by time and should have been dismissed on that ground.

Respondent's counsel admits that the appeal was late but urges that the cross-objections could nevertheless be heard and that the order of the District Judge is valid in so far as the cross-objections are concerned,

We cannot accept this view. It is clear that an appeal must be properly before the Court in order

that cross-objections may be heard. As the appeal in question was admittedly barred by time, neither time, neither the appeal nor the cross-objections were properly before the Court, and accordingly the Court had no power to proceed with the matter. We must, therefore, accept the appeal and restore the decree of the Court of first instance. The plaintiff must deposit the price on or before the 31st March 1923. In the event of default his suit shall stand dismissed with costs.

Appeal accepted.

1924 LAHORE 44

MARTINEAU AND ZAFAR ALI, J.J. Khazana Mal and another-Plaintiffs-Appellants.

Jagan Nath and others-DefendantsRespondents.

S. A. No. 1351 of 1920, D/- 19th March 1923, from the Dt. J., Hoshiarpur, D/ 1st March 1920.

Hindu Law-Joint family-Debts by managerBenefit of family is not presumed.

There is no presumption that a debt contracted by the manager of a Hindu family is contracted for the benefit of the family. 34 A. 135 Ref. [P. 44 C, 2]

M. C. Mahajan-for Appellants. M. L. Puri-for Respondents. Martineau, J.-The Plaintiffs sued Jagan Nath and the sons of Jagan Nath's deceased brother Ram Saran for money due on book accounts, alleging that Jagan Nath and Ram Saran were members of a joint Hindu family and had dealings with them. Jagan Nath pleaded that he was separate from Ram Saran and had had no dealings with the plaintiffs. The first Court passed a decree against all the defendants, but on Jagan Nath's appeal the District Judge dismissed the suit as against him, finding that although Jagan Nath had not proved his separation from Ram Saran the plaintiff's dealings had been only with Ram Saran, Jagan Nath not having signed any of the entries in the plaintiff's books, and holding that the plaintiffs had to prove that th debts were contracted for the

benefit of Jagan Nath, which they had failed to do. The plaintiffs have preferred a second appeal.

On the question of onus the ruling of Sir Donald Johnstone in Brij Lal ▼. Jaishi Ram (1) is no doubt in the appellants' favour, hut the other authorities are against them. In Gunpat Rai v. Munni Lal (2) it was held that there is no presumption that a debt contracted by the manager of a Hindu family is contracted for the benefit of the family, and the rulings of the High Courts of Calcutta and Bombay referred to in that judgment were to the same effect. The Allahabad ruling has also been followed in Bhura ▾. Banarsi Das (3); Paras Ram ▼. Gian Chand (4); and Ram Dhan v. Ramji Das (5). Counsel for the appellants has in fact not disputed the correctness of the view taken by the High Courts, but has contended only that as no issue was framed on the question whether the debts were incurred for the benefit of the family his clients should have been given an opportunity of proving that they were so incurred. There does not appear to be any force in this contention, for, as the plaintiffs alleged that their dealings had been with both Ram Saran and Jagan Nath, no occasion arose for a separate issue on the ques tion whether the debts were incurred for the benefit of the family. Moreover the point was really covered by the second issue. which was, whether the plaintiffs had advanced the amounts in suit to the family of the defendants. The plaintiffs knew that they had to prove such facts as would render Jagan Nath liable, and when it was found that they had not proved them, the suit was rightly dismissed. cannot agree that the plaintiffs were entitled to a remand and we accordingly dismiss the appeal with costs. Appeal dismissed.

We

(1) [1915] 106 P. W. R. 1915172 P. L. R. 1915-30 I. C. 500. (2) [1912] 34 All. 135-9 A. L. J. 5413 I. C. 34.

(3) [1915] 113 P. W. R. 1915174 P. L. R. 1915-30 I. C. 481. (4) [1919] 48 P. W. R. 1919.

(5) [1919] 50 I. C. 215.

1924 LAHORE 45

BROADWAY AND ZAFAR ALI. JJ. Gulli-Plaintiff-Appellant.

V.

(Defendar.ts),

Savan and others Puran Chand, and others (Plaintiffs)Respondents.

C. A. No. 2053 of 920, D/-6th Janu ary 1923, from th D. J. Lu hiana D/-12th June 1920.

sionary rights. The trial Court dismissed the suit relating to the first alienation (by Jhaba), but decreed the other two suits, holding necessity proved in the second alienation to the extent of Rs. 570 and in the third to the extent of Rs. 565. The vendees, Sawan, etc., appealed against these decisions. They also appealed in the suit relating to Jhaba's alienation as they had not been allowed costs.

representative-His disabilities, do not affec rights of the deceased.

When a party to a suit dies, a legal represen tative is appointed merely in order that the suit might proceed, and a decision be arrived at. It is the original parties rights and disabilities that have to be considered and not [P 46 C 2] those of the legal representatives.

Jai Gopal Sethi-for Appellant. Tek Chand and B. A. Cooper-for Respondents.

Broadway, J.-The following pedigree table will afford assistance :

against the dismissal of the suit in connection with Jhaba's sale. Gulli, Nigahia's father, was a respondent in all the appeals. While the appeals were pending, on the 6th of March 1920. Nigahia died. The vendeesappellants applied to the Court in their appeals asking that Gulli, the father of Nigahia, be brought on the record as Nigahia's legal representative, as being his sole heir and legal representative, and at the same time urging that Gulli had forfeited any

On the 9th of March 1898 Jhaba sold certain lands for Rs. 2,200. On the 6th of June 1902 Gulli and Puran sold some of their lands for Rs. 1,000 and on the 7th of August 1902 Rabi and Mangal sold some land belonging to them for Rs. 900. On the 25th February 1919 Nagahia, son of Gulli, instituted three suits relating to the aforesaid alienations alleging that the lands alienated were ancestral and that the alienations had been made without consideration and for no necessity. He prayed that the said sales should not affect his rever

Puran

rights he might have had in the land. In the appeal filed by Nigahia, Gulli himself made an application, alleging that he was the legal representative of his son, and asking that he be brought on the record as such.

The learned District Judge {(Misra Jwala Sahai) held that Gulli could not himself question the validity of the sale in question and dismissed the appeal by Nigahia and accepting the appeals by the vendees-appellants in the other two cases, dismissed all the suits. The learned District Judge's order was passed on the 12th of June

1920, and on the 6th July 1920, one Arjan Singh, acting through Sardar Attar Singh, Vakil, who had been acting for Gulli throughout, filed an application in connection with the appeal filed by Nigahia relating to the alienation by Jhaba, alleging that he and certain other persons named in the application were Nigahia's legal representatives and should be brought on the record. This application was dismissed on the 7th of July 1920, the learned District Judge recording the fact that the appeal had already been decided.

Arjan Singh has now come up to this Court in revision qua the order dismissing his application and Gulli has preferred appeals in the other three cases. The revision and the appeals have been filed through Mr. Jai Gopal Sethi, and we have heard Mr. Tek Chand for the vendees-respondents. This judgment will dispose of all the appeals and the revision.

Turning to the revision (No. 728 of 1920) it was contended by Mr. Sethi that the learned Disti ict Judge should have re-opened the appeal in question (relating to the alienation by Jhaba), inasmuch as Arjan Singh had come into Court within six months of Nigahia's death. Reliance was placed on Vellayam Chetty v. Jothi Mahalinga (1) and Janar lhan v. Ram Chandra (2). Neither of these authorities appear to us to be in point. In the first case it was held that an unsuccessful appellant could not insist upon having a rehearing of the case because it turned out at the time of the hearing that the respondent was dead. In the Bombay case the facts were entirely different We are unable to see any ground for revision and the order admitting the petition clearly shows that it was admitted because. in it, it was asserted that Nigahia had left a

Turning now to the appeals relating to the alienations by Jhaba and Rabir and Mangal, the learned District Judge appears to have been under the impression that the disabilities of the legal representatives should be taken into account. In this view we are unable to agree. When a party to a suit dies a legal representative is appointed merely in order that the suit might proceed and a decision be arrived at. It is the original parties' rights and disabilities that have to be considered and the mere fact that Gulli could not have brought a suit to set aside these alienations on the ground of limitation is not, in our opinion, sufficient to render the suit by Nigahia liable to dismissal. Gulli in these two cases was undoubtedly the legal representative of his son and the learned District Judge should have decided the appeals on the merits. We accordingly accept these two appeals Nos. 2054 and 2055 of 1920 and remand them to the learned District Judge for disposal in accordance with law. Costs will follow the event, and the stamps will be refunded.

Turning now to the appeal relating to the alienation by Gulli and Puran (Appeal No. 2053 of 1920), it appears to us that here again the learned District Judge has erred. Mr. Tek Chand contended that Nigahia was really suing as representative of all the reversioners of Gulli and that Gulli could not be regarded as his own reversioner. For the purposes of this suit it seems to us that, strictly speaking, Gulli could not be regarded as the legal representative of his son. The alienation attacked in the suit was made by him (Gulli) and his brother Puran, and Gulli was not, therefore, the proper legal representative. The appellants in the case were the vendees and it was incumbent on them to move the Court to bring on the record the proper legal representatives. The pedigree table shows that there were other reversioners, for instance, Rabi and Mangal, and the vendees were to blame for having brougnt the wrong person on to the record. Their appeal, accordingly abated, and no proper application haying been made within the prescribed