S. Acharya, J.
1. Defendant No. 2 has preferred this appeal against the decision of the District Judge. Bolangir-Kalahandi in so far as it relates to Title Appeal No. 47 of 1973.
2. One Laxman Sahu died after coming into effect, of the Hindu Succession Act, 1956. Defendant No. 1 is the son and defendant No. 2 is the widow of the said Laxman Sahu. Defendant No. 1 executed the registered sale deed Ext. 1 dated 10-1-1966 in favour of the plaintiff in respect of Ac. 2.16 of land out of the properties which devolved on him and his mother, defendant No. 2, on the death of his father. The above facts are not disputed.
3. The plaintiff's case in short is that :
Defendant No. 1 succeeded to the properties of his father after the death of Laxman and he (D. 1) remained in possession of the same and was functioning as the karta and manager of the said joint family properties. Defendant No. 1, for legal necessity of the family as well as for the benefit of the estate, sold the suit land (Ac. 2.16), described in the schedule attached to the plaint, by a registered sale deed dated 10-1-1966 for a consideration of Rs. 3,500/- to the plaintiff. Since after the execution of the sale deed possession of the suit land was delivered to the plaintiff and he continued to cultivate the same on his own right. In 1967 defendant No. 2 initiated a proceeding under Section 145, Cr. P. C. and in accordance with the incorrect decision in that proceeding she is in possession of the suit land. Hence this suit.
4. Defendant No. 1 did not contest the suit and he has been set ex parte.
The case put forward by defendant No. 2 is that :
Defendant No. 1 was a minor on the date of the execution of the sale deed Ext. 1 in favour of the plaintiff; no consideration was paid by the plaintiff to defendant No. 1 for the said sale; the said sale was not for any legal necessity or benefit of the family or the estate; after the death of Laxman, defendant No. 2 became the manager of the joint family; defendant No, 1 was not managing the family affairs or the properties of Laxman; possession of the suit property was never delivered to the plaintiff and that defendant No. 2 was and is all through in possession of the entire family property including the suit property as the manager of the family and its properties.
5. The trial court held that defendant No. 1 was not a minor at the time he executed the sale deed Ext. 1; defendant No. l was the karta of the family and he was managing the family properties and its affairs at the time of the execution of the sale deed Ext. 1; the said sale deed was executed on receipt of due consideration and that the said sale was for legal necessity and benefit of the estate. Having arrived at the aforesaid findings that court however held that as defendant No. 2 was not a coparcener of defendant No. 1, the question of legal necessity or benefit of the estate in respect of the said sale would not arise in this case, and so defendant No. 1 could validly sell his own interest in the suit property without even any legal necessity or benefit of the estate. But it held that defendant No. 1 was not competent to sell away defendant No. 2's interest in the joint properties and so the plaintiff under the sale deed Ext. 1 could acquire title to the suit property only to the extent of defendant No. 1's undivided half interest in the suit property and to no more. It also decided that as the plaintiff acquired half interest in the undivided suit property he could recover possession of half of the suit property from defendant No. 2. The plaintiff's prayer for mesne profits was disallowed.
6. Against the aforesaid findings and decision of the trial court, the plaintiff preferred Title Appeal No. 47/73, and defendant No. 2 preferred Title Appeal No. 48/73 in the court below. Both these two appeals were heard together, and at that stage only the following two points were agitated for decision:
(i) Whether the suit is maintainable and whether the decree can be executed, though admittedly the daughters of defendant No. 2 were not made parties; and
(ii) Whether defendant No. 1 was minor at the time of the suit sale deed, and if so, whether any title passed to the plaintiff ?
The first question was not allowed to be agitated in view of that court's earlier decision dated 4-7-1975 by which defendant No. 2's prayer for amending the written statement by adding the daughters of Laxman Sahu as parties to the suit and the appeal was disallowed on contest.
With regard to the second question, the court below has decided that defendant No. 1 was not a minor but was a major at the time of the execution of the sale deed Ext. 1; he was the Karta of the joint family consisting of defendants Nos. 1 and 2 at the time of the said transaction; the sale was for legal necessity, and hence the plaintiff acquired good right, title and interest to the entire suit property covered by the sale deed Ext. 1. The plaintiff's title in the entire suit property has been declared and his suit has been decreed with costs. It has also directed that the plaintiff would recover possession of the entire suit property without any partition suit, and that he could institute a separate suit against defendant No. 2 for mesne profits. Accordingly Title Appeal No. 47/73 was allowed and Title Appeal No. 48/73 was dismissed.
7. Against the decision of the court below, two second appeals, being the present one and Second Appeal No. 129/76, were filed by defendant No. 2. Second Appeal No. 129/76, which was in respect of the matters agitated in Title Appeal No. 48/73, was dismissed before its admission. The present second appeal, therefore, is in respect of only the questions agitated in Title Appeal No. 47/73 and the findings thereon.
8. Mr. Dey, the learned counsel for the respondent No. 1 (plaintiff in the suit), at the outset challenged the maintainability of this appeal by saying that the questions agitated by the appellant (defendant No. 2) In Title Appeal No. 47/73 having been decided against her and her Second Appeal No. 129/76 against the findings in that first appeal having been dismissed by this Court, this appeal was not maintainable, as any decision in this appeal might give rise to two conflicting decrees in the same suit. In course of hearing on this point, Mr. Dey, however, concedes that in this appeal the question, as to whether the sale of the suit property as per Ext. 1 was binding on defendant No. 2 in its entirety or only of a portion thereof, can be agitated and decided in this appeal.
9. Mr. B.R. Rao, the learned counsel for the appellant, concedes that the concurrent findings of fact of the courts below that defendant No. 1 was not a minor at the time of the execution of the sale deed Ext. 1; that he was the Karta of the family and was managing the family affairs at the time of the said sale; that the said sale deed was for consideration and it was for legal necessity and benefit of the estate, cannot be challenged in this appeal in view of the dismissal of Second Appeal No. 129/76. Mr. Rao, however, contends that the property recorded In the name of Laxman, of which the suit property is only a portion, was admittedly Mitakshara coparcenary property of Laxman and defendant No. 1, and Laxman died leaving behind him his son (D. 1), widow (D. 2) and daughters. So the entire property devolved by succession on the said heirs under the provisions of the Hindu Succession Act, 1956 (hereinafter referred to as the 'Act'), and under the provisions of Section 19(b) of that Act the heirs succeed to that property as tenants in common and not as joint tenants. Therefore, defendant No. 1 was not entitled to deal with the said coparcenary property as Karta thereof from the moment of Laxman's death. It is further submitted that as defendants 1 and 2 were and are in joint possession of the said property, defendant No. 1 was not entitled to dispose of a portion thereof, which is the suit property, without carving out his share in the same by partition as defendant No. 2 has interest equivalent to her share in every bit of the said property.
10. It is not correct to say that the son (D. 1), the widow (D. 2), and daughters, if any, succeeded to the entire property as tenants in common. On the rules laid down in Sections 6, 8, 9 and 10 of the Act, only the undivided interest or share of Laxman devolved by succession on his son, widow and daughters, if any. The undivided interest or share of the deceased-coparcener in a case of this nature has to be ascertained on the footing of a notional partition immediately before the death of the deceased. The persons who would be entitled to a share on the notional partition would be ascertained according to the Hindu law of joint family and partition in force on the date of the death of the coparcener, and their share has to be computed according to the law of partition applicable to the parties on the date of the death of the deceased. In the present case, if a partition had in fact taken place immediately before the death of Laxman, he would have been entitled to 1/3rd share in the said property, as defendant No. 2 would have become entitled to get a share equal to that of defendant No. 1, and so the property would have been divided in three equal shares. On the coming into effect of the Hindu Succession Act, only the said 1/3rd interest of Laxman shall be deemed to have been carved out of the entire property and that distinct share would cease to form a part of the coparcenary property from the moment of the death of Laxman. That distinct share only will devolve by succession on Laxman's son (D. 1), widow (D. 2) and other heirs under the Act, if any. By the application of Section 19, such heirs of Laxman succeed together only to the said 1/3rd interest of Laxman, and they take that property as tenants in common and not as joint tenants. On the application of the proviso to Section 6 of the Act, the joint family may continue but the interest of the deceased in the coparcenary property is carved out of the entire property, and that distinct share ceases to form a part of the coparcenary property from the moment of the death of the coparcener, and that separate and carved out interest vests in the different heirs of the deceased coparcener as per the provisions of the Act from the time of the death of the coparcener,
My above view gets direct support from the Full Bench decision reported in AIR 1971 Andh Pra 363 (P. Govinda Reddy v. G. Obulamma) and the Division Bench decision reported in AIR 1975 Mad 51 (Veerasekhara v. Amirthavalliammal). Therefore, it is not correct to say that defendants 1 and 2 and the daughters of Laxman if any succeed together as tenants in common to the entire property recorded in the name of Laxman.
11. However, Mr. Rao's contention, that after the death of Laxman defendant No. 1 could not exercise the power of a Karta in relation to the share of defendant No. 2 and her daughters in the aforesaid property, has some force and substance. Defendant No. 2, or her daughters if any were not coparceners along with defendant No. 1, and they succeed to Laxman's distinct 1/3rd interest in the aforesaid property along with defendant No. 1 as tenants in common. So, though defendant No. 1 was the Karta of the family he could not exercise the powers of a Karta in respect of that l/3rd share of deceased Laxman, as the heirs under the Act would succeed to that portion of the property as tenants in common and there is no coparcenary between the son and the female heirs of Laxman.
In the Full Bench decision reported in AIR 1971 Andh Pra 363 it has been held that (at p. 374) :--
'xx xx xx if the proviso of Section 6 of the Act applied on account of the existence of the heirs referred to therein, there will be of course no disruption of joint family status but the coparcenary property will not include the interest of the deceased coparcener by reason of succession under the Act and it will not then be available to the coparceners and heirs as coparcenary property and the Kartha in relation thereto therefore cannot exercise his powers as a Kartha. The interest having devolved on various heirs in specified shares and such heirs being tenants in common in relation to that property, the Kartha of the joint family property to which the coparceners belong cannot re present the female heirs who are not coparceners.'
In the decision reported in AIR 1975 Mad 51 a Division Bench of that Court held (at p. 57) :--
'xx xx xx the joint familyor coparcenary continues, but the interest of the deceased coparcener in thecoparcenary property is carved out fromthe entire joint family property and itceases to form part of the coparcenaryproperty from the moment of the deathof the coparcener concerned and thatseparate and carved out interest vests indifferent heirs of the deceased coparcener as per the provisions of the Actat the moment of the death of the coparcener. Consequently, the kartha willhave no right to deal with that propertythereafter. Since the right of the Karthato deal with the property is dependentupon the property being joint familyproperty, once the particular interestceases to be part of the joint family orthe coparcenary property, the right ofthe Kartha with reference thereto automatically and inevitably comes to anend.'
12. In the present case though defendant No. 1 has no right to act as a Karta in respect of Laxman's interest in the aforesaid property, in the facts and circumstances of this case the sale of the suit property (which is only Ac. 2.16 out of the said entire lands) by him cannot, as urged by Mr. Rao, be declared to be illegal or invalid. True it is that actually there has been no partition of the entire property by metes and bounds between defendants 1 and 2, and so defendant No. 1's distinct portion in that property has not as yet been carved out. But merely because of that the right of disposition of one of the heirs of his or her own interest in the said property is not affected or fettered. But such disposition will hold good only to the extent of his or her share in that property, and the alienee can have possession of the same only when partition of the property is effected.
13. In this case, from the deposition of defendant No. 2 herself and D.W. 2, her another witness, it is evident that Laxman has left behind about 50 to 60 acres of land. Defendant No. 1 has certainly a major share out of the said 59 to 60 acres of land. So, undoubtedly defendant No. 1 could sell only Ac. 2.16 decs, of land out of his aforesaid share In the said property. This sale of course will not affect in any way the interest or share of the other heirs in the property.
By the sale deed Ext. 1 defendant No. 1 has of course sold distinct parcels of land out of the said property though his portion out of the same has not yet been carved out by partition and the entire property is in the joint possession of defendants 1 and 2. There is also nothing on record to show that the suit property was or is somehow in the exclusive possession of defendant No. 1. But merely because of that, the sale of only Ac. 2.16 decs, of the suit land by defendant No. 1 in favour of the plaintiff cannot be declared invalid, in view of the fact that defendant No. 1 has a major share in the said 50 to 60 acres of land, and the suit land being only a small fraction of the same, can easily be carved out of his portion. By purchasing the said property by a valid sale deed on payment of consideration the plaintiff has stepped into the shoes of defendant No. 1 in respect of the suit property. That being so, the plaintiff has acquired valid right, title and interest, in the suit property, but he cannot obtain exclusive possession of the same at present as the entire property is still in joint possession of defendants 1 and 2. The plaintiff can recover possession of the suit property when defendant No. 1's distinct share in the entire property is carved out by partition or otherwise. Mr. Dey, the learned counsel for the respondents, is not able to contest the above conclusion.
14. On the above considerations, the ultimate conclusion of the court below that the plaintiff has acquired right, title and interest in the suit property, measuring Ac. 2.16 decs. is confirmed. But the direction of the court below to deliver possession of the suit property in favour of the plaintiff has to be and is hereby set aside. The other directions and orders of the court below are confirmed.
The appeal Is allowed only to the extent stated above. The decree be modified accordingly. In the circumstances, there will be no order as to costs of this appeal.