JUDGMENT Misra and Madeley, JJ. - In this case there is an objection that the appeal is time barred. The facts necessary for the purpose of deciding this objection are that the suit was brought in forma pauperis by the plaintiffs appellants and the decree was passed on the 27th January, 1939, on the 12th April, 1939, they applied to be allowed to appeal in forma pauperis: on the 25th October, 1939, a Bench of this Court passed orders dismissing the application in which it gave no time to the applicants to pay 'he court-fee: on the 7th November, 1939, they applied that, if they were not to be allowed to appeal in forma pauperis, they should at least in the interests of justice be given an opportunity to pay the court-fee. This application was treated by the same Bench as an application for review, and on the 15th November, 1939. six week's time was allowed to pay the amount of the court-fee. The Hon'ble Judges remarked This order, of course, does not decide that the appeal is 'ipso facto' found to be within limitation. If inertly admits; the appeal for hearing. 2. The question of limitation has therefore been raised as a preliminary objection in the appeal. Respondent's learned Counsel argues that there is a gap of 15 days, that is, that the appeal is 15 days beyond time. The question is whether the memo of appeal must be considered as having been before the Court from the time that the pauper application was filed along with the memo, of appeal or whether, as no order giving time was passed on the 25th October, 1939, and the memo, was not treated as a separate matter before the Court, the period of limitation had already expired before the filing of application asking for extension of time which was treated as an application for review by this Court. 3. We think that this question is sufficiently covered by authority. 4. 3. We think that this question is sufficiently covered by authority. 4. In Parbhu Narain Singh v. Jitendra Mohan Singh 1943 OA 141 : AIR Oudh 458 it was held that where an appeal is preferred without court-fee, but with an application to appeal in forma pauperis, and the appellant, having subsequently obtained sufficient means, is allowed time u/s 149 and the court-fee is paid within the time allowed, the appeal must be considered to have been filed when it was preferred without court-fee with the application to appeal in forma pauperis. This may be challenged by the respondent at the time of hearing, but only on the ground that the original application to be allowed to appeal in forma pauperis was mala fide or fraudulent. The same view as to the scope of Section 149 was taken by a previous Bench of this Court in Sheo Shankar v. Mst. Ram Dei (1935) 10 Luck 569.. In note 16 to Order 41, rule 1. Chitaley appears to take the same view. Respondent's; learned Counsel argues that these cases are distinguishable because in the present case the memo of appeal was not considered by the Court as a separate proceeding but only as an adjunct of the pauper application. Both were consigned to records together, and it is argued therefore that there was no memo of appeal pending before the Court at the date when the application for extension of time was received. Section 149 says: The Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be," etc. 5. "At any stage", it is argued, means at any stage of the proceeding, which must therefore be pending before the Court at the time when the application for extension and the order u/s 149 is passed. It is further argued that' this distinction was not before the Benches which decided the two above noted cases. We have, however, read the discussion in the body of the judgments in these cases and we find that the facts in I L.R. 10 Luck 569 are on all fours with the present case. It is further argued that' this distinction was not before the Benches which decided the two above noted cases. We have, however, read the discussion in the body of the judgments in these cases and we find that the facts in I L.R. 10 Luck 569 are on all fours with the present case. If the particular distinction, on which respondent's learned Counsel insists, was not expressly urged before the learned Bench which tried that case, their clear exposition of the facts shows that it must at any rate have been present to their minds and they did not think it of importance. We consider that the scope of Section 149 is wide enough to cover the order of the 15th November, 1939. Even if it were not, it would still be within our power to condone the delay u/s 5 of the Indian Limitation Act, which, according to a decision of the Hon'ble High Court at Patna approved in ILR 10 Luck 569, ought to be done if Section 149 were not applicable. 6. We hold therefore that the appeal is within time. 7. We now come to the merits of the case. 8. This is a plaintiff's appeal in a suit for possession of property alienated by Gur Bux Rai their father without legal necessity. A portion only of the claim was decreed. The pedigree of the family is : 9. The plaintiffs challenge the transaction effected by Gur Bux Rai. They say that he was a spendthrift and debauchee and that the alienations were without legal necessity. They also allege that they and Gur Bux Rai were members of a joint Hindu family and that the property was ancestral having come from Debi Din. About 28 years ago Anant Ram separated from his two brothers, Suraj Bali and Makhan Lal. who remained joint. Later on in 1924 there was a second partition between Prem Raj, son of Suraj Bali, on the one side and Gur Bux Rai and Gur Sahai, the sons of Makhan Lal, on the other. Thus Gur Bux Rai came into possession of the property in suit together with considerable other property. Plaintiffs therefore sued for possession of the properties transferred by the following four deeds: (1) Sale deed of mortgagee rights dated the 18th December, 1924, Ex. l=Ex. A-5. (2) Mortgage deed of the same date, Ex. 2 = Ex. A-6. Thus Gur Bux Rai came into possession of the property in suit together with considerable other property. Plaintiffs therefore sued for possession of the properties transferred by the following four deeds: (1) Sale deed of mortgagee rights dated the 18th December, 1924, Ex. l=Ex. A-5. (2) Mortgage deed of the same date, Ex. 2 = Ex. A-6. (3) Mortgage deed dated the 13th June, ,1929, Ex. A-7. (4) Mortgage deed dated the 13th June, 1930, Ex. A-8. 10. The appeal relates only to the first and second deeds which have been held by the trial Court to have been executed for legal necessity. The jointness of the family and the ancestral character of the property are admitted. 11. The defence as regards Exhs. 1 and 2 was that the consideration, although paid in cash, was used by Gur Bux Rai in paying off the earlier mortgage Exh. 10 dated the 12th June 1924. All of these deeds were in favour of Durga Prasad. Exhs. 1 and 2 did not mention any antecedent debt or the earlier mortgage. The pleading of he defendant 1 is shown in para 24 of the written statement. That the defendant Gur Bux,. while agreeing to execute sale deed and mortgage deed dated 18th December, 1924, suggested that in order to make the position of the answering defendant more secure, the consideration of sale and mortgage deed should be in cash, a major portion of which, after being shown before the Sub-Registrar, should be taken by the answering defendant in satisfaction of his previous mortgage and the fact of such satisfaction should be entered on the back of the deed on a different date so that the answering defendant may prove if occasion required that that deed was satisfied by defendant No. 2 by borrowing money from another person who in his turn was satisfied out of the consideration of the sale deed and mortgage deed dated 18th December, 1924. The answering defendant, not knowing law and taking the above proposal of Gur Bux as sound, accepted it and acted accordingly. The answering defendant, not knowing law and taking the above proposal of Gur Bux as sound, accepted it and acted accordingly. Thus although the mortgage deed dated 12th June 1924 was satisfied out of the consideration of the above two deeds but the fact of satisfaction was endorsed .or the back of it to have taken place on 15th December, 1924, i.e. anterior date and the consideration of the subsequent sale and mortgage was shown as cash. 12. The oral pleadings are given at page 12. Exh. A-3 was paid off on the date on which Exhs. A-5 and A 6 were executed. At the back of the original of Exh. A 3 this payment was endorsed within the compound of the Registration Office, Bara Banki, on the 18th December, 1924, but the endorsement was antedated by 3 or 4 days for the reasons given in para 24 of the written statement. 13. Exh. A-3 of course = Exh. 10. 14. The endorsement is given at page 66 of the typed paper-book. Durga Prasad admitted having received the amount due on Exh. 10 in full on the 15th December, 1924. Appellant's learned Counsel argues that the burden of proof lay upon the defendant to prove that Exhs. 1 and 2 were executed from antecedent debt. He further argues that in the absence of the mention of any antecedent debt in these deeds, the oral evidence was inadmissible to prove why the document was taken; and that in any case the lower Court only accepted the evidence of defendant 1, because it did not believe the evidence of the plaintiffs. Therefore the burden of proof has not been discharged by defendant 1. In fact the lower Court has wrongly placed the burden of proof upon the plaintiffs to prove the absence of legal necessity and antecedent debts. He further argues that if the story of defendant 1 be believed, the debt which was paid off was not antecedent in fact as well as in time, but that Exh. 10 and the two deeds in suit were really of the same transaction. 15. Some of these arguments can be disposed of without much discussion or difficulty The argument relating to the burden of proof has no force. 10 and the two deeds in suit were really of the same transaction. 15. Some of these arguments can be disposed of without much discussion or difficulty The argument relating to the burden of proof has no force. No doubt the burden to prove legal necessity or antecedent debt lay upon the defendant who alleged it Angraj Bahadur Singh v. Ram Rup3 But we see no reason to think that the learned lower Court wrongly placed the burden of proof. Where both sides have produced evidence the question where the burden of proof originally lay is only of academic importance. The lower Court heard the evidence of both sides and came to the conclusion that the evidence produced by defendant 1 was to be believed. Whether it was right in giving this preference to the defendant's evidence or not, is not affected by the question where the burden of proof lay. We consider also that Section 91 of the Evidence Act has nothing to do with the case, It is true that antecedent debt is often mentioned in deeds taken to pay it off, but there is no obligation to mention it and there can be no bar u/s 91 to proving the use to which the money was put by the production of other evidence. Two questions therefore remain to be decided (1) Whether the lower Court was justified in believing the evidence of the defendant in preference to that of the plaintiffs and (2) whether that evidence, if believed, establishes that the debt was truly antecedent within the meaning of the law. 16. Of the oral evidence which the parties have thought fit to print Hamidan prostitute is the first. She gives evidence that Gur Bux Rai was a profligate. Then come two witnesses for the defendant, Durga Prasad himself and Jagannath. Durga Prasad states that he took Exhs. 1 and 2 in place of Ex, 10, which was paid by these two deeds. The reason for this was that ''sir" land of Zaidpur was mortgaged by Exh. 10 and Gur Bux when it came to the point refused to relinquish actual possession of the "sir" and claimed exproprietary rights. This was contrary to his promise and Durga Prasad threatened to sue him on the basis of the mortgage deed. They then arranged for Exhs. 1 and 2. 10 and Gur Bux when it came to the point refused to relinquish actual possession of the "sir" and claimed exproprietary rights. This was contrary to his promise and Durga Prasad threatened to sue him on the basis of the mortgage deed. They then arranged for Exhs. 1 and 2. As suggested by Gur Bux witness paid down the total amount of the consideration, Rs. 3,275, but was paid back Rs. 3,075: Rs. 3,000 for the previous mortgage, Rs. 75 profits. Rs. 200 were kept by Gur Bux for the expenses of registration and purchases for his sarrafa business. He is corroborated by Jagannath, a witness of Exhs. 1 and 2. This evidence is criticised because there is no documentary evidence in support of the statements with regard to sir and the claim of ex-proprietary rights. There is, however, nothing to rebut the statements made by Durga Prasad on this subject. As to the return of the Rs. 3,075 to extinguish the mortgage, Exh. 10, Durga Prasad is directly corroborated by Jagannath. It has also been argued that the statement of Durga Prasad shows that he trusted Gur Bux in a way in which he never would have trusted him, As to the actual transaction, however, as we have already stated Durga Prasad is corroborated. Moreover there seems to be no reason for Gur Bux's execution of Exhs. 1 and 2 if he, as his witness says, had just paid off Exh. 10 by means of money received from Rafique in payment of a debt, Durga Prasad also states that Exh. 10 was executed by Gur Bux for the purpose of obtaining money for his sarrafa business. In view of the more recent decision" on the question of antecedent debt, however, we think that the question whether Exh. 10 was for legal necessity does not arise. 17. In rebuttal of Durga Prasad's and Jagannath's evidence the plaintiffs have produced Kirpa Shankar who states that he attested the endorsement on Exh. 10 on the 15th December, 1924, and that the sum of Rs. 3,000 was paid by Rafique Husain to Durga Prasad in his presence. Rafique Husain, though summoned, was not produced nor was the promissory note on the basis of which he was said to have owed this money. 18. We consider that the finding arrived at by the learned trial Judge on this evidence is reasonable and correct. 19. 3,000 was paid by Rafique Husain to Durga Prasad in his presence. Rafique Husain, though summoned, was not produced nor was the promissory note on the basis of which he was said to have owed this money. 18. We consider that the finding arrived at by the learned trial Judge on this evidence is reasonable and correct. 19. As to the legal point there have been differences of opinion at different times on the question of what amounts to an antecedent debt, but the law is now well settled by the Privy Council decision in Brij Narain Rai v. Maugla Prasad (1924) 51 I A 129. In this case the Madras view was upheld that if the debt for the payment of which the property was alienated was antecedent in time, it was not necessary to enter into the question whether that debt was contracted in order to pay off a previous debt or for legal necessity. Indeed the opposite view would ' seem to involve an unending chain of inquiries. The test laid down in Ram Samp v. Bharat Singh (1921) 43 All 703 as quoted by Mulla in his Principles of Hindu Law in Section 295 is The antencedence must be real. The antecedence would be unreal if the father borrowed money on a promissory note with the object when he borrowed that it should form part of a mortgage to he subsequently executed by him. 20. In other words if the previous loan were merely taken in order to support the subsequent alienation, the antecedence would not be real. In this case there is no reason to think that Ex. 10 was executed with a view to the subsequent execution of Exhs. 1 and 2, 21. The appellants abandoned the ground of appeal relating to mesne profits and their learned Counsel does not wish to argue the ground relating to costs. 22. We therefore dismiss this appeal with costs.