Mohd. Hamid Hussain, J. - (1.) THIS is a second appeal by the plaintiffs who filed suit No. 114 of 1963 for partition of the house specified in the plaint.
(2.) THE allegations in the plaint were that the disputed house was ancestral property of Ram Nath and Vishwa-nath who were sons of Har Nanuan Sahu. THE pedigree showing the relationship of the parties was also given in the plaint. It was alleged in the plaint that Vishwanath had separated from his brother Ram Nath and died on 15-9-56 and the share of Vishwanath in the disputed house devolved on the plaintiffs who were his wife, three daughters and two sons. Ram Nath sold the disputed house on 25-11-56 in favour of Mewa who was arrayed as defendant no. 1 in the suit. Mewa had demolished part of the disputed house and usurped its material causing a loss of Rs. 100/-to the plaintiffs. Ram Nath who sold the house having died, his son Radhe Mohan and widow Smt. Mahadei were also arrayed as defendants. THE pedigree given in the plaint was admitted by the defendants. THEy, however contended that Vishwanath remained as a member of Joint Hindu family governed by Mitakshara Law, and in the state of jointness Vishwanath had died, that Ram Nath was Karta of the joint family and in that capacity looked after the affairs of the family and the coparcenary property and executed sale deed of the disputed house for legal necessity, namely, for repaires of the house, marriage of Vishwanath's daughter Smt. Shakuntala, for the family business and for the maintenance of the family members. On the pleadings of the parties the trial court framed several issues. The trial court held that plaintiff Smt. Chameli Devi had failed to establish that Ram Nath and Vishwanath were separate. It also held that Ram Nath was elder member of the family. The trial court, however was of the opinion that the disputed property was not the coparcenary property and Ram Nath was not entitled to transfer the disputed house in his capacity as Karta of the family. The trial court further held that Mcwa defendant no. 1 was not a bonafide purchaser of the disputed house. Accordingly the trial court decreed the suit of the plaintiffs for partition declaring them to be owners of half-share in the disputed house. Aggrieved by the decree of the trial court defendant Mewa preferred an appeal, and the learned Civil Judge who heard the appeal held that the case as set up by the defendants that Vishwanath and Ramnath were members of a joint Hindu family was fully proved, and that Ramnath as Karta of the joint Hindu family for himself, Vishwanath and his sons could alienate the coparcenary property for legal necessity of the family. The lower appellate court also held that the disputed property was coparcenary property of Ramnath and Vishwanath. It also held that there was legal necessity of the family for which the disputed house was sold. On these findings the lower appellate court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit of the plaintiffs.
(3.) SRI Rajendra Kumar and SRI M. C. Tewari, learned counsels have appeared in support of this appeal, and SRI Sankatha Rai, learned counsel has appeared for the respondents. The learned counsel of the parties have been heard at length. The only contention which has been raised and argued at length in this appeal is that after the enforcement of the Hindu Succession Act 1956 the share of Vishwanath in the disputed house would devolve on his legal heirs and even though Vishwanath may have remained joint with his brother Ramnath the interest of Vishwanath in the joint property would be deemed by fiction of law to have been partitioned and defined immediately before the death of Vishwanath and his heirs would be entitled to that specified share of Vishwanath in the disputed house and Ramnath had no fight as Karta of the family to dispose of the share of the plaintiffs. Further, the share of the minors could not be sold without prior authority of the court as required under the Hindu Minority and Guardianship Act. Elaborating the above contention learned counsel has stated that the Hindu Succession Act (Act No. XXX of 1956) came into force on the 17th June 1956, and the Hindu Minority and Guardianship Act (Act No. 32 of 1956) came into force on the 25th August 1956, while Vishwanath died on 15th September 1956, that is, subsequent to the enforcement of the two aforesaid Acts. According to the learned counsel the Hindu Succession Act under section 4 over-rides the provisions of Hindu Law with regard to inheritance, and the succession to the Mitakshara coparcenary property will be governed by the proviso to section 6 of the said Act when a male Hindu dies leaving him surviving a female relative specified in class 1 of the schedule.;