JUDGMENT :- The sixth defendant in O.S. No.388 of 1986 on the file of the Principal District Judge, Punganur filed this second appeal. The first respondent is the sole plaintiff in the suit. For the sake of convenience, the parties are refereed to as arrayed in the suit.

2. The plaintiff and defendant Nos.1 to 5 are brothers and the second defendant was the karta of the joint family. The suit was filed for the relief of partition and separate possession of item Nos.1 to 12 of the suit schedule property. He pleaded that the said items of property are ancestral and there was no family partition. It was alleged that item Nos.10 to 12 comprising of an extent of Acs.33.00 of dry land was sold by the second defendant in favour of defendant Nos.6 and 7, through a sale deed dated 29-4-1985, without there being any family necessity.

3. The suit, particularly insofar as it related to item Nos.10 to 12 was resisted, by the defendants. It was pleaded that the said items were sold for the better enjoyment of the property, and that all the brothers, except the plaintiff, have taken their respective shares of the sale consideration. It was also pleaded that the share of the plaintiff was kept in a separate account.

4. During the pendency of the suit, defendant Nos.1, 2 and 4 died. Defendant Nos.8 to 12 were brought on record as legal representatives of the first respondent and defendant Nos.I3 to 20 were added as legal representatives of the second defendant. The parties agreed that there were no legal representatives to the fourth defendant. The trial Court passed a preliminary decree directing that item Nos.1 to 9 of the suit schedule property be divided into six shares, and that one such share be allotted to the plaintiff. As regards item Nos. 10 to 12, the trial Court directed that the plaintiff shall be paid his share of consideration with interest @ 12% from the date of sale through Ex.B2.

5. The plaintiff filed A.S.No.146 of 1999 in the Court of Senior Civil Judge, Punganur, not being satisfied with the preliminary decree passed by the trial Court, in relation to item Nos.10 to 12. He pleaded that though the trial Court found that the said items were sold without there being any family necessity, the sale was held binding upon him and his right was restricted to the receipt of consideration.

The lower appellate Court allowed the appeal through its judgment dated 12-2-2002 modifying the preliminary decree in two respects. Firstly, it was held that in view of the fact that the fourth defendant died without leaving any legal representatives, the share of each coparcener would be 1/5th and not 1/6th. The second aspect is that the plaintiff shall be entitled to 1/5th share in item Nos.10 to 12 and not the share in the sale consideration.

6. Sri Lakshmi Narayana Reddy, learned Counsel for the appellant, submits that the lower appellate Court misread the evidence and proceeded on wrong assumption as to the nature of sale of item Nos.10 to 12 through EX.B2. He contends that the plaintiff did not choose to question EX.B2 and despite the same, the lower appellate Court indirectly annulled the sale, insofar as the 1/5th share is concerned. Learned Counsel points out that the fourth defendant died during the pendency of the suit and it was not proper for the lower appellate Court to alter the shares and instead, it ought to have been left open to the parties to make claim to the share of the deceased-fourth defendant.

7. Sri R. Radhakrishna Reddy, learned Counsel for the first respondent, on the other hand, submits that there is neither a plea nor evidence to the effect that the sale of item Nos.10 to 12 was for the necessity of the family. He contends the very fact that each brother was paid his own share, clearly disclosed that the sale was neither for the benefit nor for the necessity of the family. Learned Counsel points out that whenever a coparcener or a sharer passes away during the pendency of the suit, it is incumbent upon the Courts, to take n

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