A member of an Aliyasantana family has a pre-existing right to seek partition of family property without needing to cancel a sale deed executed by another family member, provided the alienation was not for family necessity and lacked the consent of other family members.

JUDGMENT

Sachin Shankar Magadum, J. - The captioned second appeal is by plaintiffs assailing the judgment and decree rendered by the appellate Court wherein appellate Court has allowed the appeal filed by defendant No.2 and the plaintiffs suit seeking relief of partition and separate possession is dismissed. These divergent findings are under challenge at the instance of plaintiffs.

2. For the sake of brevity, the parties are referred to as per their rank before the trial Court.

3. The family tree is as under:

4. Plaintiff Nos.1 and 2 are the children of defendant No.1. It is not in dispute that plaintiff Nos.1 and 2 and defendant No.1 constitute a Hindu Undivided Family governed by Aliyasantana Law and defendant No.1 being a mother was managing the suit land bearing Sy.No.13/1 measuring 1 acre 70 cents. The plaintiffs feeling aggrieved by the alienation made by their mother have filed the present suit seeking relief of partition and separate possession. Plaintiffs have alleged in the plaint that they were not aware of alienation made by their mother/defendant No.1 in favour of defendant No.2. Plaintiffs have contended that suit land was granted by Land Tribunal and the said land which was subject matter of partition in the family was allotted to the branch of plaintiffs as well as defendant No.1 under registered family partition deed dated 25.05.1970. Therefore, feeling aggrieved by the alienation made by their mother, the plaintiffs have filed the present suit by contending that they are entitled to seek their legitimate share by effecting partition by metes and bounds.

5. Defendant No.1 who is the mother has not chosen to contest the proceedings. Defendant No.2 who is the purchaser of undivided interest filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.2 on the contrary claimed that the sale transaction entered into by plaintiffs mother in his favour binds the plaintiffs as well. Defendant No.2 questioned the maintainability of the suit on the ground that plaintiffs cannot a maintain a simple suit for partition without seeking cancellation of the sale deed executed by their mother in his favour. Defendant No.2 also contended that on account of long passage of time and the plaintiffs conduct in not questioning the alienation also gives an indication that plaintiffs have waived off their undivided right in the property and the same amounts to abandonment.

6. Plaintiffs and defendants to substantiate their respective claim have let in oral and documentary evidence.

7. Trial Court having examined the pleadings answered issue Nos.1, 2 and 4 in the affirmative. While issue No.3 was answered in the negative and against defendant No.2. While answering issue No.3 in the negative, trial Court held that defendant No.2 has failed to prove that the sale by defendant No.1 in his favour was for family necessity and consequently, issue No.4 was answered in the affirmative and while answering the said issue in affirmative, trial Court held that sale deed executed by defendant No.1 is not binding on plaintiffs share. The defendant No.2 since questioned the very maintainability of the suit, issue No.5 was framed in that regard. Trial Court answered issue No.5 in the negative and held that suit is maintainable without seeking cancellation of the sale deed dated 27.02.1987. The trial Court while answering additional issue No.1 in the negative also held that defendant No.2's claim that plaintiffs having kept quite for such a long time amounts to deemed consent for the transaction entered into between defendant No.1 and defendant No.2 was also not acceded to by the trial Court and additional issue was answered in the negative and against the defendant No.2.

8. Trial Court having examined the records and having regard to the fact that there is no serious challenge and dispute in regard to the fact that suit land is an Aliyasantana property proceeded to hold that plaintiffs have got independent right in the su