The daughter, as a coparcener, has the right to challenge alienations made prior to the amendment of the Hindu Succession Act on the ground of want of legal necessity.

JUDGMENT

MANGESH S.PATIL,J.

1. I have heard both the sides at the stage of admission and perused the papers including the written notes of arguments tendered by the learned advocate Mrs. Kulkarni for the appellants.

2. In spite of the mandate of Sec. 100 of the Code of Civil Procedure the appeal memo does not contain specific substantial questions of law calling upon this Court to respond to. Perhaps realizing this irregularity, Mrs. Kulkarni in her written notes of argument has provided following substantial questions of law :

"i) In the absence of prayer for setting aside sale deeds is the suit maintainable ?

ii) The learned Judge granted 1/6th share to plaintiff by applying provisions of Amended Act which came into force on 9/9/2005 can provisions of Amended Act are applicable to the present case ?

iii) During the lifetime of parents can plaintiff being daughter has birth right to claim partition married long back ?

iv) Can alienation be quashed by plaintiff under Amended Act and can daughter claim share in alienated property which took place prior to effect of Amended Act ? "

Apart from such substantial questions deviced by Mrs. Kulkarni, having considered the facts and circumstances, couple of additional substantial questions of law need to be answered in this Second Appeal :

Whether the courts below have committed gross error in not allocating an equal 1/6th share to each of the other sharers even though it was a suit for general partition of all the ancestral and joint family properties ? Whether the courts below have committed gross error in not directing adjustment of equities to the extent of the share of the defendant Nos.1 and 2 in favour of the defendant Nos.7 to 9 ?

3. In order to appreciate the genesis for formulation of such points by the learned advocate one needs to refer to the material facts. The appellants are the original defendant Nos.7 and 8, whereas respondent No.1 is the original plaintiff, respondent Nos.2 to 7 are the original defendant Nos. 1 to 6 and respondent No. 8 is the original defendant No.9. For the sake of avoiding confusion the parties would hereinafter be referred to by their status in the suit.

4. The defendant Nos.1 and 2 are the parents of the plaintiff and defendant Nos.3 to 6. The family owned the suit properties described in the paragraph No.1 of the plaint. Avering that all these suit properties are the ancestral and joint family properties but have been illegally sold by the defendant Nos.1 and 2 in favour of the defendant Nos.7 to 9, the plaintiff claimed partition and separate possession of her share with a declaration that the sale deeds executed by the defendant Nos.1 and 2 were not binding on her share.

5. The defendant No.1 did not contest the suit whereas defendant Nos.1 to 6 by their respective written statements conceded to the claim put up by the plaintiff. The defendant Nos.7 to 9 also filed their separate written statements. They did not dispute the relation between the plaintiff and the defendant Nos.1 to 6. They denied that the suit properties were the ancestral and joint family properties. They admitted about the defendant Nos.1 and 2 having sold the portion of the suit properties to them. However, they contended that they had sold it to meet the legal necessity of the family. They further contended that since the sale deeds were executed more than three years prior to the filing of the suit it was time barred.

6. The defendant No.4 who is the only son of the defendant Nos.1 and 2 while admitting the claim filed a counter claim and prayed for his share to be separated. The parties went to trial. Conspicuously, only the plaintiff stepped into the witness box but she was neither cross-examined by the contesting defendant Nos.7 to 9 nor they themselves stepped into the witness box to substantiate their contentions. Holding the issues to have been duly proved the trial court decreed the suit further declaring that the sale deeds executed by the defendant Nos.1 and 2 wer