Richard Harington, J.
1. This appeal arises out of a suit brought by the plaintiff for possession of three plots of land. The allegation made in the plaint was that Raja Misser was the karta of his family and that he alienated the family properties to the plaintiff for legal necessity, the conveyance purporting to sell the whole 16-annas. Now, as a fact, it has been found that Raja Misser and a man named Gomti were joint in estate. They were brothers and though they were not living together because of some quarrel with regard to some misconduct of Gomti, it has been found affirmatively by the lower Appellate Court that they remained joint in estate. The defendants, I should say, whom it is sought to eject, are persons who purchased the lands from the sons of Gomti. It has been found that Raja Misser and Gomti were joint and it has also been found that Raja Misser was not the karta of the family and that there was no legal necessity for the sale, these findings, in my opinion, dispose of the case.
2. But the learned Judge of the Court of Appeal below when he came to these conclusions was of opinion that Raja Misser's alienation was good, at any rate, in respect of his 8-annas which would be the undivided half share of the family property, he and Gomti being the persons who owned the property; but his attention does not seem to have been drawn to the case of Madho Parshad v. Mehrban Singh 17 I.A. 194; 18 C. 157. That case is an authority for the proposition that, where a Hindu without the consent of his co-parcener has sold his undivided share in the family property, on his death his surviving co-parcener is entitled to the said share. In short, it is an authority for the proposition that when a person alienates his share of the family property without the consent of the other members and without legal necessity, not for the benefit of the family, on his death, there would remain nothing in the hands of his transferee. That case seems to me to be applicable to the facts of the present case; and when it is found that the whole 16-annas was sold by Raja Misser and that the sale was not for legal necessity and it is not shown that the other sharer consented to it, it seems to me that, on his death, nothing remains in the hands of his transferee and, therefore, the plaintiff has no right to eject the defendants.
3. The learned Vakil who argued for the respondents referred to Section 38 of the Transfer of Property Act, but that only applies where there has been reasonable care taken in ascertaining the existence of the circumstances to justify the transfer. There is no suggestion in this case that any inquiries were made and it has been found that no necessity for the transfer did exist. Therefore, the circumstances which would have justified the transfer if the vendor had been the karta did not exist.
4. Then it is argued that what had been done amounted to a separation of the family property and that the defendants were in no better position with regard to the land because the plaintiff bought from Raja Misser one of the brothers, while the defendants bought from the sons of Gomti, the other brothers. At any rate, that was not the case which was set up in the plaint and was tried by the Munsif and was heard in the lower Appellate Court. It is quite a new case and it is not open to the respondent, in my view, to set it up now. The case which he set up in the Court of first instance and which was tried was whether he acquired a title by purchase from the karta of the joint family to the whole 16-annas of the property and whether the sale was for legal necessity. When it has been found that there was no legal necessity and that the vendor was not the karta of the family, the plaintiff's claim is gone and I disagree in the view which the learned Judge has taken, namely, that the alienation was good for eight annas of the property, because the case to which I have referred and which was decided by the Privy Council is a direct authority to the contrary. For these reasons, I think that the judgment of the lower Appellate Court should be set aside and the plaintiff's suit dismissed with costs.
Herbert Carnduff, J.
5. I agree.