JUDGMENT
Prakash Krishna, J.
1. The suit out of which present appeal has arisen was brought by the plaintiff respondent for cancellation of sale deed dated 18.1.1966 executed by the defendant No. 2, in favour of defendant No. 1 (appellant). The said sale deed is in respect of a house described in the plaint. The suit was filed on the allegations that the property in dispute is ancestral property. The impugned sale deed dated 18.1.1966 was executed by Ram Nath. The plaintiff Nos. 1, 2 and 3 are sons of Shiv Govind having half share in the disputed property and the plaintiff Nos. 4, 5 and 6 are the sons of Ram Nath and they along with their father Ram Nath have remaining half share in the disputed property. The pedigree has been given in the plaint, which is not in dispute. The cancellation of the sale deed was sought on number of grounds including that the sale deed was got executed by Sharda, the appellant, in his favour by playing fraud and no sale consideration was passed. The property in dispute being ancestral property, Ram Nath was not entitled to execute the sale deed in respect of ancestral property without the consent of other coparceners. The property in question though is a house, but has been described as “Khandhar” in the sale deed. The sale deed was neither read over nor was explained to Ram Nath who was illiterate and simple person. The transfer was never acted upon and the vendee never entered into possession of the disputed property.
2. The suit was contested on the pleas, inter alia, by denying the allegations of fraud and that sale consideration was paid at the time of execution of the sale deed and Ram Nath executed it after fully understanding the nature of deed. It was further pleaded that the defendant No. 2 Ram Nath was the absolute owner of the property sold and it was sold for the benefit of the members of his family, as the property was in the form of ‘Khandhar’ at the time of sale and the house was subsequently raised at its place by the defendant. The plaintiffs had full knowledge of the sale deed and, as such, the suit is barred by limitation.
3. The trial court framed necessary issues on the basis of pleading of the parties and found that the sale deed was for consideration and Ram Nath executed it with full knowledge and after understanding its contents and import. It was further found by the trial court that the property in question being ancestral property it could be transferred with the consent of all co-parceners or in the case of legal necessity by Ram Nath alone. The sale deed was found to be invalid by the trial court on the ground that it was not executed for legal necessity and, as such Ram Nath alone was not competent to execute the sale deed. The Judgment and decree of the trial court in the aforesaid Suit No. 95 of 1971, dated 31.7.1974 has been confirmed by the first appellate Court in Civil Appeal No. 281 of 1974, vide its judgment and decree dated 23.5.1975. Aggrieved against the concurrent judgments of both the Courts below decreeing the suit for cancellation of the sale deed dated 18.1.1966 executed by defendant No. 2 Ram Nath in favour of the present appellant, present appeal has been filed. The finding of the trial court that the sale deed was executed for consideration and no fraud was played upon Ram Nath was neither challenged before the first appellate court nor before me in this appeal. The main point, which was pressed before the appellate court, was that Ram Nath was competent to alienate the property in question without the consent of other members of the family. The first appellate court decided this point, against the appellant.
4. Heard learned counsel for the parties.
5. Learned counsel for the appellant has pressed the present appeal on the following three questions :
(i) Ram Nath was competent to alienate the property in question as there was earlier partition amongst the family members.
(ii) The sale deed should be held valid at least to the extent of share of Ram Nath.
(iii) At least decree for refund of sale consideration should have been passed by the Courts below as a condition for the cancellation of the sale deed.
On the first point learned counsel for the appellant submitted that from the evidence on record partition in the family of Ram Nath is fully established. Elaborating his argument reliance has been placed upon the statement of P.W. 3 Manohar. In reply learned counsel for the respondent submitted that no such plea was raised by the defendant appellant before the Courts below and, as such, it is not open to urge a new point in this appeal. The trial court framed the following five issues :
(1) Whether the sale deed dated 18.1.1966 is invalid as alleged in para 12 of the plaint?
(2) Whether the suit is undervalued and Court fee paid is insufficient?
(3) Whether the suit is barred by time?
(4) Whether the suit is bad for non joinder of necessary parties?
(5) To what relief, if any, the plaintiff is entitled?”
A bare perusal of the above issues clearly show that no plea of partition was raised before the trial court. However, the learned counsel for the appellant has invited my attention towards paragraph 22 of the written statement. In the said written statement it has been stated that from a considerable period of time members of the family of the plaintiffs are separate and they have become the owner of their respective shares and have indulged in transferring various properties and none of them has any share in the property in question. Ram Nath has got filed the present suit in collusion with the plaintiffs.
6. The aforesaid pleading is hardly sufficient to say that partition had taken place in the family of the plaintiffs. The appellant before the trial court did not press the plea of partition. However, there is some discussion in the judgment of the first appellate court. The first appellate court has considered the statement of Manohar, P.W. 3. From the statement of Manohar it cannot be said that there was partition in the family members of the plaintiffs. Manohar has stated in his cross-examination that the property in dispute is ancestral property. He has further stated that presently the family members are residing separately and they are bearing their household expenses respectively. He has further reiterated in his deposition that no partition has taken place in between him and Sri Ram Nath. The parties are cultivating their respective fields for the last eight nine years separately. Therefore, there is no convincing evidence on record to show that partition had taken place and the disputed property falls in the exclusive share of Ram Nath. Learned counsel for the respondent is right in his submission that burden lay upon the defendant appellant to prove that the partition had taken place. He has failed to give the particulars of the partition. He has not pleaded the date on which partition took place. The parties are villagers of the same village. He could have produced some witnesses of the village in support of the plea of partition. In absence of specific plea of partition or the issue, the finding of the Court below recorded by it after appreciating the oral evidence Of P.W. 3 that the appellant has failed to prove partition, is correct. The Court below has given cogent reasons to hold that the partition of the dispute property has not been proved by any evidence in this case. In a Joint family the parties may be separate in lodging and messing but that would not give a fact that ancestral property also have been partitioned between them. Moreover, as to whether any partition had taken place or not is basically a question of fact.
7. The learned counsel for the appellant argued that at least to the extent of share of Ram Nath the sale deed should have been upheld. Where members of Joint Hindu Family the property governed by “Mitakshra Law” as administered in Bengal, Bihar and U.P,, sells or mortgaged Joint family property or any portion thereof without the consent of coparceners, alienation is liable to be set aside unless it is for legal necessity or for payment by the father of antecedent debt and it does not pass the share even of alienating coparcener. The result is that if alienation is not for legal necessity nor for payment of antecedent debt, other co-parceners are entitled to declaration that alienation is void in its entirety. (See Mulla on the Principles of Hindu Law, Section 269, 13th Edition). In the case in hand a finding has been recorded by the trial court that the sale deed was not executed for any legal necessity. This finding has not been and could not have been challenged in the Second Appeal being a question of fact. In view of the above principles of law the second argument of the learned counsel for the appellant has no merit and is liable to be rejected.
8. Lastly it was argued that the trial court has found that the defendant appellant gave a sum of Rs. 1,000 as sale consideration to Ram Nath. It was submitted that at least decree for refund of the said amount should be passed to adjudge the equities between the parties. Learned counsel has placed reliance upon Section 33 of the Specific Relief Act. The said section gives power to a Court requiring the benefit to be restored or compensation to be made when instrument is cancelled or his successor resisted as being void or voidable. In support of his argument reliance has been placed upon a Division Bench judgment in Mst. Hameedan Bibi v. Nanhumal and Anr., AIR 1933 All 372. The said judgment is distinguishable on the facts of the case. In the said judgment the co-executants of sale deed filed a suit for its cancellation so far as her interest was concerned. In that case it was found that the plaintiff did not receive her share of partition price. In the circumstances it was held that there is no reason why she should not return the money, she has got and compensate other side, when she is being allowed to retain her property. This controversy so far as our Court is concerned has been set at rest by a Division Bench Judgment in Madan Copal v. Sati Prasad, 1917 ALJ 425. A father of Joint Hindu family sold the property belonging to the family without legal necessity. The sons brought suit to set aside the sale and to recover possession of the property. A decree was passed conditionally on their refunding portion of purchase money, which was proved to have been received by the father. It was held by this Court that condition should be struck down inasmuch as until the sale was set aside, the consideration paid in cash at the time of sale to the father cannot be regarded as an antecedent debt or as a debt of the father binding on the sons. This Court has placed reliance upon its earlier judgment and has held that the amount so paid at the time of execution of sale deed by the vendee may at some subsequent time become debt of the father but until this event arises it cannot be deemed to be the debt for which the son at that time when they got sale deed set aside can be held liable. It has been further noticed that there are other case decided by this Court in which same view was taken. The aforesaid judgment given in the case of Madan Gopal (supra), is nearer to the facts of the case in hand. The present suit was also brought by the sons of Ram Nath and other family members, therefore where alienation by the father is set aside at the instance of the son on the ground that it is neither for legal necessity nor for antecedent debt, sons are entitled to have set aside without its being made a condition that they should refund by the consideration paid by allienee to the father. In the case of Modan Gopol (supra), this Court has placed reliance upon its earlier decision given in the case of Manbahal v. Gopal Misir, 2901 AWN 57. In that case this Court has dissented from a decision of the Calcutta High Court in Hashmat Rai v. Sunder Das, 1885 1LR (II) Cal 396.
9. In view of the above discussion said point has also got no merit and is rejected.
10. In the result appeal falls and is accordingly dismissed. There will be however no order as to costs.