R.D. Deo Sharma, J.
1. This is a defendant's appeal against the judgment and decree dated 9-7-1977 passed by the learned District Judge Sultanpur whereby he dismissed the defendant's appeal and confirmed the decree passed by the trial court decreeing the plaintiff's suit with costs. Plaintiffs-respondents 1 and 2 are the sons of defendant-respondent 3. The defendant appellant who is a stranger to the family purchased the house in dispute from the plaintiffs' father through a sale deed. The plaintiffs came with the allegations that they together with their father Badri Prasad and uncles Mathura Prasad and Kedar Nath were living as members of the joint Hindu family having Gayadin, their grand-father, as the common ancestor. The house which is now in dispute and is detailed at the foot of the plaint was purchased by Gayadin and his three sons from the joint family funds although the sale deed was executed in favour of the three sons of Gayadin. The plaintiffs therefore, claimed to be coparceners and owners of the house as such along with other members of the family. Subsequently there had been a partition whereafter the plaintiffs lived jointly with their father while the other members, namely their uncles became separate.
The house in question fell in the share of the plaintiffs and their father and they were accordingly continuing in possession thereof as owners. Defendant 1 who is now the appellant purchased the house in question from the plaintiffs' father although the latter had no right to transfer the same as it was their joint family property and the sale was made without legal necessity and was a fititious transaction without consideration. Their father was said to be a drunkard and a gambler who did not execute the sale deed while in sense. They accordingly claimed a decree for declaration that defendant 1 had no right or title to the house by virtue of the alleged sale-deed.
2. A decree for perpetual injunction was also claimed against defendant 1 restraining him from interfering in the plaintiffs' possession over the house or making any alterations in or damage to the premises.
3. The plaintiffs' father who is defendant 2 filed a written statement supporting the plaintiffs' case and admitting the pedigree set up by them. The claim was, however, resisted by defendant 1, the purchaser, whose contention was that the plaintiffs' father had a specified share in the house which he had sold to him. It was also contended that the house in question was purchased by the plaintiffs' father Badri Prasad and his brothers Mathura Prasad and Kedar Nath by a sale deed dated 24-12-1963 and thereafter there had been a partition amongst the three brothers in which the portion of the house sold to him was allotted to the plaintiffs' father. The sale deed obtained by him from the plaintiffs' father on 16-3-1970 was said to be for good consideration. It was denied that defendant 2 was a drunkard or gambler and the suit was said to be filed by the plaintiffs in collusion with their father. By an additional written statement, the defendant-appellant further contended that the house in question which he had purchased was the separate property of the plaintiffs' father Badri Prasad and in which the plaintiffs had no share or interest whatsoever. It was also contended that the house was purchased by Badri Prasad and his brother jointly but from their separate funds and that the family was not joint so as to give the plaintiffs a right either as coparceners or otherwise.
4. The learned Additional Munsif who tried the suit held that the house in question had been purchased by Gayadin from joint family funds even though the sale deed was in the names of his three sons and that the plaintiffs who were coparceners in the jo5nt family could avoid the sale made by their father since the sale was not binding on them. It was also held that the plaintiffs' father was drunkard and gambler although somehow in the conclusion the learned Munsif has mentioned that the issue on the point was decided in the negative. The finding, however, was affirmative on the point that defendant No. 2 was a drunkard and a gambler. The suit was accordingly decreed. A first appeal preferred against the decision was also dismissed by the learned District Judge who agreed with the findings of facts recorded by the trial court. It was also observed that even if the defendant 2 was not a drunkard and gambler he could not transfer the disputed portion of the house since it did not exclusively belong to him and in any case the plaintiff 1 was a coparcener and had a share in the house. The appeal was accordingly dismissed.
5. Feeling aggrieved the defendant purchaser has preferred this second appeal and it has been contended that the findings of the court below are erroneous and there could be no presumption of jointness much less of the property being joint family property. The findings about the jointness were challenged and it was contended that in any case the share of Badri Prasad validly passed to the appellant and to that extent the suit should have been dismissed. In that event the appellant would become joint owner along with the plaintiffs and a suit for injunction would not lie.
6. I have heard the learned counsel for the parties and have also gone through the record. It has not been disputed that the house of which the disputed portion is a part was purchased by Badri Prasad and his two brothers by a sale deed dated 24-12-1963. It will also appear from the sale deed Ext. A-1 through which the appellant had purchased the portion of the house in dispute that Badri Prasad claiming himself to be exclusive owner of this house had sold the same to the appellant. In the boundaries there has been shown in the east the house of Kedar Nath his brother,in the West has been shown the remaining portion of the house which was not sold, and in the North and the South have been shown road and a talab. There is no documentary evidence on record to show to what manner She partition had taken place subsequent to 1963, but it appears to be the admitted case of the parties that after 1963 there had been a partition in the family. The appellant himself pleaded in his written statement (para 22) that soon after 1963 there had been a partition amongst 1he three brothers and that the eastern portion of the house fell in the share of Kedar Nath, the middle portion came to the share of the platinffs' father Badri Prasad and the western portion to the share of Mathura Prasad, another brother. There is, however no evidence to support the contention that partition had taken place in this manner because admittedly to the East of the entire house purchased by these three brothers through the sale deed dated 24-12-1963 there was another house of their father Gayadin, and similarly, te the West of the house so purchased there wag another house of Gayadin and all this property appears to have been par-titioned sometime after 1963. The sale deed in favour of the appellant itself shows that to the West of the portion sold there was still left another portion of the house belonging to Badri Prasad which was kept outside the purview of the sale and it appears that to the further West thereof was the house of Mathura Prasad. This is also in the evidence of Shambhoo defendant-appellant himself that the family when joint was doing business in iron, kerana and cloth. He also admitted that the family when joint possessed the houses now belonging to Kedar Nath and Mathura Prasad but later he amended the statement and said that he meant the house purchased from Jhagroo in 1963 i.e. the house of which the disputed portion is a part. This has been interpreted by both the courts below as meaning that the family when joint also owned and possessed the house which was purchased from Jhagroo in 1963 in the names of the three sons of Gayadin. Undoubtedly the statement as recorded is slightly vague on the point because what has been stated is that when these people were living jointly the house purchased from Jhagroo was also in existence. In fact, the house of Jhagroo purchasedthrough the sale deed of 1963 was in existence physically even before and after 1963 but what the statement actually meant perhaps was that the house purchased from Jhagroo was existing in the family as the family property when these people were joint. The trial court before whom the evidence was actually adduced and recorded has interpreted it in this manner and the first appellate court has also accordingly relied upon this statement which is in the nature of an admission by the defendant appellant that the disputed house was also joint family property of Gayadin and his sons who were doing business in iron, Kerana and cloth. In this view of the matter, the house in question has been held to have been purchased from joint family funds although in the names of the three sons of Gayadin. There is apparently no explanation why the house was not purchased in the name of Gayadin although he was very much alive at the time, but if as a feet the house was purchased from joint family funds and at a time when the family was joint it should make no difference in whose names the house was purchased.
7. If is nobody's case that the house was sold for legal necessity or benefit of the estate or for payment of antecedent debts. The plaintiff 1 was already born when the sale deed of 1963 was obtained by the family although plaintiff 2 was not born at that time. In any case, therefore, plaintiff l had a right by birth, and in the absence of proof of legal necessity etc., the sale deed executed by his father could not bind him. Reliance was placed by the appellant's learned counsel on a Full Bench decision of the Bombay High Court in Parappa v. Mallappa : AIR1956Bom332 . Undoubtedly, it was held in that case that the alienation could be upheld to the extent of the share of the alienor father, but in the first instance, the facts in that case were different because the matter was being examined in the context of a suit for partition brought by the son and at that time naturally the shares of the parties were being separated and it was held that the alienation could be upheld to the extent of the share of the alienor father, and secondly, the Mitakshara law as applicable in Bombay is different from the one applied in Uttar Pradesh. In Bombay under the Mitakshara law as applied to that State one of the severat coparceners in a Hindu undivided family could without the assent of his coparceners sell or otherwise alienate his share in the undivided family property, but under the Mitakshara law as administered in Uttar Pradesh and several other States like Bihar, Orissa and Punjab, a coparcener could not without the consent of his other co-paraceners mortgage or sell his undivided share if such alienation was not for the benefit of the family or legal necessity etc. Their Lordships of the Privy Council held in Lachhman Prasad v. Sarnam Singh (AIR 1917 PC 41) that an alienation of a joint family property made neither for family necessity nor for discharging antecedent debts would be void in toto, and cannot even bind the share which might be allotted to the alienor on partition. So long as the interest of the alienor remained indefinite and unseparated, he would not be in a position to dispose it of for his own purposes. That was a case which went to the Privy Council from Allahabad. A similar view was expressed in Manna Lal v. Karu Singh (AIR 1919 PC 108 (2)). Similar view was earlier taken in Mata Prasad v. Sheo Babu Singh ((1909) ILR 31 All 176) (FB) and Kali Shankar v. Nawab Singh (1909 ILR 31 All 507). The same view was also expressed in Full Bench decision of Jagdish Prasad v. Hoshyar Singh : AIR1928All596 and Malak Chand v. Hira Lal (1935-157 IC 945) : (AIR 1935 Orissa 510). A different view has not been shown to have been taken in a case arising in Uttar Pradesh even subsequently. In this view of the matter, the sale deed executed by the plaintiffs' father in favour of the appellant cannot be held to be binding on them and the suit was rightly decreed by both the courts below. There is, therefore, no force in the appeal which is accordingly dismissed with costs.