S.S.SANDHAWALIA, J.

1. The true import of the somewhat widely couched language of clause (c) of Sec. 4 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, is the significant question, which has necessitated this reference to the Full Bench.

2. The plaintiff-respondents had instituted the suit giving rise to the present proceeding on the 10th February, 1965, for setting aside the sale deed dated the 18th of February, 1959, executed by Choudhary Guptnath Singh, who was the Karta of the Hindu joint family, in favour of respondents Nos. 2 to 17. Barring a wholly fragmentary and conventional averment about the non-execution of the said deed, the primary claim for setting aside was sought to be rested on the basis of the absence of legal necessity, non-payment of any consideration, and lack of any bona fide inquiry. The further case set up was that defendants Nos. 2 and 17, by a fraudulent device and undue influence, had obtained the deed in question from Choudhary Guptnath Singh, but the same had not been acted upon at all.

3. Defendants Nos. 4 and 17 strenuously contested the suit by filing a joint written statement, controverting all material averments in the plaint. However, the other defendants filed a joint written statement, supporting the case of the plaintiffs.

4. On the pleadings of the parties, as many as 7 issues were framed, of which Issues Nos. 1 and 4 are relevant to the point and were in the following terms :

"1. Is the sale deed dated 18-3-59 alleged to have been executed by Choudhary Guptnath Singh in favour of defendants 2 and 17, fraudulent and collusive, as alleged by plaintiffs, or, the same is for legal necessity and for consideration, as alleged by defendants 2 and 17?"

"4. Whether the sale deed dated 18-3-59 was executed with consent of family members of Guputnath Singh and the same was for the benefit of the family of Guputnath Singh?"

5. It is manifest from the above, and, equally so from the very exhaustive judgment of the trial court, that the question of non-execution of the sale deed by Choudhary Guptnath Singh was not seriously raised or pressed and was indeed in terms abandoned by the plaintiffs. The matter before the trial court was pressed only with regard to the other grounds of challenge on the points of legal necessity, lack of consideration and absence of bona fide inquiry, etc.

6. It is common ground that during the pendency of the suit a notification under Sec.3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act), was issued on the 26th November, 1970, nor is it in dispute that the agricultural land pertaining to the area in question came within the ambit of the said notification. However, no issue of abatement under Sec. 4(c) of the Act was raised at all before the trial court. Consequently, more than a year later, on the 23rd December, 1971, the suit was decreed and the impugned sale deed was set aside, inter alia, on the following grounds :-

"On consideration of entire evidence and circumstances of the case, I hold that the sale deed in question is not a fraudulent and collusive sale deed, as alleged by plaintiffs, but the same is not for legal necessities. I also hold that the sale deed is for consideration. I also hold that the sale deed was not executed with consent of family members of Guputnath Singh, nor the same was for the benefit of the family of Guputnath Singh. I also hold that defendants have failed to prove that they had made honest and bona fide enquiry about the existence of legal necessities for the sale of suit land..........."

The present first appeal was preferred on 13th March, 1972. Curiously enough, even at that stage, no ground whatsoever regarding the suit having abated was taken on behalf of the defendant-appellants. However, later, on 2-7-1981, this question of abatement was pointedly raised by a petition filed under S.151 of the Code of Civil Procedure, to pres