HR.N. Misra, J.
1. Plaintiffs are in second appeal against the affirming decree of the learned Subordinate Judge in a suit for partition. Plaintiffs had asked forpartition of two items of Schedule 'A' and the 'B' Schedule property. The trial Judge gave a decree excerpt in regard to item No. 1 of Schedule 'A' by upholding the alienation by their father on 23-5-1961 (Ext. C) for Rs. 300 in favour of the Deity (defendant No. 2) represented by defendants 3 to 8. The lower appellate court having upheld that decree, the plaintiffs have filed this second appeal.
2. The three plaintiffs are the sons of the defendant No. 1. There is no dispute that on 23-5-1961, the defendant No. 1 has alienated the item No. 1 of Schedule 'A' being Ac 0.53 decimals of cultivable land to the defendant No. 2. The plaintiffs have sued for partition without asking for his alienation being set aside and the defendants 2, 3 and 4 who alone contested asked for deletion of this property from the hotchpot as it was not partible.
3. According to Mr. Ramdas, learned counsel for the appellants, the disputed item of property belonged to the joint family and was not the exclusive property of the defendant No. 1. Prior to suit, in a proceeding under Section 145 of the Code of Criminal Procedure their possession had been upheld. Since the defendant No. 1 had made the alienation by asserting exclusive title therein, the plaintiffs' interest had never been sold and they were not required to ask for a declaration that they were not bound by the alienation before laying claim for partition thereof. He next contends that the finding of legal necessity is not sustainable in law and as such the claim for partition must be decreed. Mr. Rath, on the other hand, contends that the plaintiffs are bound to obtain a declaration of their subsisting interest in order that the disputed property can be in the hotchpot.
4. On the pleadings, the trial Judge raised issues about the binding nature of the alienation under Ext. C and also regarding the maintainability of the claim without a prayer to set aside the sale. Adverting to this aspect of the matter, the trial court said-
'So in my opinion the safe under Ext. C of the property belonging to the joint Hindu family was for legal necessity. Let us see whether consideration passed under this document. Ext. C has been registered. There is a clear recital in Ext. C that a consideration of Rs. 300 has been paid under this document and there is no evidence on behalf of the plaintiffs to controvert this fact. So Ext. C was executed as the Karta of the joint Hindu family for legal necessity and for valid consideration and as such this alienation is binding on the plaintiffs. Hence theitem No. 1 of the suit Schedule 'A' pro-party is not liable for partition. The defendants are not in possession of the suit land as the property is now in the hands of the Receivers of the Court. Of course there is no prayer to set aside the sale in Ext C but still then, in view of my above finding it is not necessary for this Court now, to decide on the point of non-maintainability of the suit for want of such a prayer.....'
5. In paragraph 5 of his judgment, the learned Subordinate Judge upheld the finding that the property in question was of the joint family and proceeded to examine the validity of the alienation on the footing that Ext. C was by the Karta of the property belonging to the coparcenery. The appellate court accepted the appellant's contention that burden to establish legal necessity lay on the alienee and then found-
'..... Recitals of legal necessity ina deed of sale executed by the father are admissible in evidence though they are not of themselves evidence of such a necessity without substantiation by evidence. They may be corroborated by representation made by the purchaser but the recitals are admissions of the mortgagor and they also amount to a representation about the need of the family. Though the evidence regarding existence of legal necessity is not overwhelming, still the recitals in the document which are corroborated by the evidence of D.W. 2 are sufficient to come to a conclusion that the respondent No. 1 (father) sold the land for legal necessity and the loan incurred by him was not for any immoral or illegal purpose. As such I agree with the learned lower court that the appellants are bound by the transaction.'
6. Even where the manager of a joint Hindu family alienates joint family property, the alienee is bound to inquire into the necessity for the alienation, and the burden lies on the alienee to prove either that there was legal necessity in fact, or that he made proper and bona fide enquiries as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity.
In this case, as pointed out by the courts below, the entire evidence on behalf of the defendants consists of the narration in the sale deed (Ext. C) and the evidence of D.W. 2 to the following effect: --
'For legal necessity ha sold the 53 cents of land.'
There is thus no evidence at all regarding the fact of existence of legal necessity or alternately about any bona fide enquiryby the alienee. Dealing with the narration of legal necessity in the impugned deed, the Supreme Court held in the case of Rani v. Santa Bala Debnath, AIR 1971 SC 1028-
'Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances.....'
Ordinarily whether there is legal necessity to support an alienation is a question of fact and Section 100 of the Code of Civil Procedure would not permit a finding on that aspect to be further agitated in second appeal. But here, the position seems to be peculiar. The courts below have recorded a finding that the alienated property belonged to the joint family of the defendant No. 1 and the plaintiffs. Ext. C in clear terms shows that the defendant No. 1 made the sale by asserting that the property was his self-acquired property. The courts below omitted to take into account this circumstance which would go a long way on the question of legal necessity behind the transaction. The defendant No. 1 was not alienating in the capacity of Karta. It is true that if his status was that of Karta, non-mention of his status would not matter but the statement that the property sold was the self-acquisition of the alienor very much militates against the alienor alienating qua Karta so as to bind the coparcenary. The narration in the sale deed thus is not of any avail. As already indicated the oral evidence is almost nothing to meet the requirement of the law in the matter and thus it indeed turns out to be case of no evidence for the finding of fact on the question of legal necessity.
7. Now let us turn attention to the question of maintainability of the suit so far as this item of property is concerned without asking for the alienation to be set aside. Law is settled that an alienation by the manager of joint Hindu family even without legal necessity is only voidable and not void (See Rajkumar Raghu-banchmani Prasad Narain Singh v. Ambica Prasad, (1971) 1 SCWR 101 = (AIR 1971 SC 776)). Ordinarily, therefore, the plaintiffs would have been obliged to avoid the sale so that the alienated property under Ext. C could be included in the hotchpot but as the alienor did not purport to sell joint family property, that cannot be required of them. It must, therefore, be found that the suit, so far as the disputed item is concerned, ismaintainable and the alienee has not been able to establish that the plaintiffs' share in the disputed property is bound by Ext. C.
8. Admittedly defendant No. 1 had one-fourth share in the property as the coparcenary consisted of him and his three sons -- the plaintiffs. The alienor's one-fourth share must be found to be bound by the alienation as he has not asked to avoid the same. Thus, so far as item No. 1 of the 'A' Schedule property with 53 cents of land is concerned, three-fourths thereof are partible and each of the plaintiffs is entitled to an equal share out of it The one-fourth share of the defendant No. 1 must belong to the Deity (defendant No. 2).
9. I would accordingly allow the appeal, set aside the decrees of the courts below so far as item No. 1 of Schedule 'A' of the properties in suit is concerned and decree the plaintiff's suit in respect of that item by declaring one-fourth share therein in favour of each of the plaintiffs and the remaining one-fourth share in favour of the defendant No. 2. The direction of the trial court in regard to the manner of partition in respect of either items of property shall apply in regard to this item also. Parties shall bear their respective costs throughout.