Decided on December 22,1954

CHAMPALAL Respondents

Referred Judgements :-



Shinde, C.J. - (1.)THIS is plaintiff's second appeal. The plaint alleges that Hukumchand plaintiff and father of Nannulal defendant 2 were real brothers and owned a house in dispute. After the death of his father Nannulal remained member of the joint family and stayed in the same house. This house was afterwards partitioned. The northern side was given to defendant 2 and the southern side came to the share of the plaintiff. There is a staircase which was not divided and remained in joint use of both the plaintiff and defendant 2, Defendant 2 sold his portion of the house to defendant 1.
Defendant 1 began to make use of the staircase. The suit, is therefore, for a declaration that the staircase being undivided, cannot be sold by defendant 2 to defendant 1 and hence permanent injunction be issued against defendant 1 to preclude him from using the staircase. This suit was thrown out out by both the lower Courts. Consequently the plaintiff has filed this appeal.

(2.)IT is clear from the decision of both the lower Courts that they have misconceived the point at issue. The objection raised by the plaintiff was that as the staircase was not partitioned and remained joint family property, defendant 2 could not sell it to defendant 1. That it was not partitioned has been found by both the lower Courts. If that is the case, defendant 2 cannot sell his undivided share in the coparcenary property without the consent of the other coparceners and as the alienation is neither for a legal necessity nor for the payment of an antecedent debt the alienation is void in its entirety.
(Vide Mulla's Hindu Law, Edn. 11, S. 269 at P. 334). In 'Amardayal v. Har Pershad',, AIR 1920 Pat. 433 (A), their Lordships of the Patna High Court held as follows:

A mortgage of the whole or a share of the joint family property of a 'mitakshara' family by one member of the family, unless justified by legal necessity or by an antecedent debt or assented to by the other members of the family is void and inoperative as against the property hypothecated and give the mortgagee no rights even against the mortgagor's undivided share.

In 'Dayaram v. Harcharan Das', : AIR 1928 Lah 111 (B), it was held by their Lordships of the Lahore High Court that under the 'Mitakshara' Law where the sale of Hindu coparcenary property is found to have been made, not for legal necessity or for the payment of the antecedent debts of the vendor, his son is entitled to a decree setting aside the alienation of the joint family property without any condition being imposed upon him to refund the consideration paid by the alienee to the vendor. In 'Anant Ram v. Collector of Etah',, AIR 1917 P.C. 133 (C) it was held by their Lordships of the Privy Council that alienation by manager of the joint property is not valid even to the extent of his own share.

This being the law on the subject, the plaintiff's suit must be decreed. The staircase which was undivided property belonged to both the brothers Nannulal, therefore, could not sell his share, in the staircase to defendant No. 1 Champalal without the consent of the plaintiff. The sale of, the share of the staircase of Nannulal, therefore is void in its entirety.

For the reasons given above, setting aside the decree of both the lower Courts the suit is decreed 'in toto' and a permanent injunction is issued against defendant 1 Champalal to restrain him from using the staircase in dispute. The appeal is allowed with costs throughout.


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