M. P. Mehrotra, J. - (1.) THIS second appeal arises out of a suit for a declaration that the sale deed dated 18-7-1963 purporting to have been executed by Surya Bali, the defendant No. 6, in favour of the defendants Nos. 4 and 5 was illegal, void and not binding on the plaintiffs to the extent that it related to the property in suit. The plaintiffs also claimed permanent injunction restraining the defendants Nos. 1 to 5 from interfering in any way with their possession over the property in dispute. In brief, the facts are that the defendant No. 7, the wife of Surya Bali, who was the defendant No. 6, effected certain transfers in favour of the plaintiffs by different sale deeds of certain properties whose details have been given in the various lists attached to the plaint. Subsequently, Surya Bali, the husband of the defendant No. 7, executed the impugned sale deed dated 18th July, 1963 with respect to a part of the properties involved in the suit. The plaintiffs' claim was that the real Surya Bali had not executed the said sale deed but it had been executed by an imposter. It was also pleaded that the sale deeds executed by the defendant No. 7 had been earlier executed by her in favour of the plaintifJs for the benefit of the joint family including the minors therein and, therefore, the subsequent sale deed by Surya Bali was ineffective and void.
(2.) THE defence was that the real Surya Bali had executed the impugned sale deed dated 18th July, 1963 and that it was a valid document and the earlier sale deeds executed by the wife of Surya Bali were ineffective as she had no right or title to execute the documents in the presence of her husband who was the head and karta of the family. The trial Court framed and tried the necessary issues and dismissed the suit. In appeal to, the lower appellate court, the plaintiffs again lost and now the plaintiffs have come up in the instant second appeal and in support thereof I have heard Shri C. B. Misra, learned counsel for the appellants. Counsel has placed reliance on Budhi Jain v. Dhobai Naik, AIR 1958 Orissa 7 and Pandurang Dahake v. Pandurang Gorle, AIR 1947 Nagpur 178. These cases have been referred to in the judgment of the lower appellate court and both have been correctly distinguished. Both the courts below have returned a finding of fact that there had been no abandonment of the family or of the properties of the family by Surya Bali. He had undoubtedly gone to Amrawati for business but this is far from a case of abandonment of the family or of the family properties. The lower appellate court has observed: "The plaintiffs have failed to establish that he had ceased to take care of the family." In this situation it was not open to the wife to seek to transfer the joint family properties purporting to act as the karta of the joint family. The lower appellate court has placed reliance on Commr. of I. T.v. G.S.Mills, AIR 1966 SC 24 where the headnote is as follows : "Under Hindu law coparcenership is a necessary qualification for the managership of a joint Hindu family. A Hindu widow is not a coparcener, she has no legal qualifications to become the manager of a joint Hindu family. A widow of a coparcener cannot, therefore, be a karta of the joint Hindu family consisting of three widows and two minors." It will be seen that in the Supreme Court the aforementioned Nagpur case was specifically overruled. Therefore the transfer by the defendant No. 7 could not be justified on the ground that she was or could act as the manager of the joint family. As I said above, there is no finding that the property or the family had been left by the real karta and head of the family, namely, Surya Bali, defendant No. 6. Counsel next sought to contend that the transfers in favour of the plaintiffs could be justified on the basis of the ostensible ownership of the defendant No. 7. In my view, this plea is untenable. There was no question of ostensible ownership of the woman. Section 41 of the Transfer of Property Act, in the facts of the case, cannot be held to be applicable. It was a case of a joint family and there was no ostensible ownership in the wife particularly when it has been held by both the courts below that Surya Bali was neither traceless nor out of contact with the family and that it had not been shown that he had ceased to take care of the family.
(3.) THE appeal accordingly fails and is dismissed. In the circumstances, there will be no order as to costs. Appeal dismissed.;