JUDGMENT

Sanjay K Agrawal, J. - This second appeal preferred by the appellants/plaintiffs was admitted for hearing on the following substantial question of law :-

"1. Whether the lower appellate Court was justified and rejecting the appeal particularly in view of Section 33 to 40 of the provision of Indian Succession Act, 1925 ?

2. Whether the a sale deed which has been executed was a valid sale deed on account of the same have been executed for the property beyond the share in joint property in favour of Section 54 to 55 of Transfer of Property Act ?" (For the sake of convenience, the parties will be referred hereinafter as per their status in the trial Court.)

2. Following genealogical tree would demonstrate the relationship between the parties :-

3. Admittedly, the suit property bearing Khasra No. 690/7 admeasuring 1776 sq. ft. was purchased by the propositus herein i.e. Mattus Anthony who had two wives namely Filomina and Shyam Bai. Plaintiffs are the son and daughters of Mattus Anthony out of his wedlock with Filomina whereas defendants are wife and sons and daughter of deceased John Anthony who was the son of Mattus Anthony born out of his wedlock with Shyam Bai.

4. The dispute revolves around the suit property left by Mattus Anthony who died in the year 1991. The legal heirs of John Anthony, being defendants No. 1 to 5, sold part of the suit property in favour of defendant No. 6 vide registered sale deed dated 18/08/2002 which necessitated filing of the suit by the plaintiffs seeking declaration of title and declaration of sale deed dated 19/08/2002 executed by defendants No. 1 to 5 in favour of defendant No. 6 as void as it is the case of the plaintiffs that defendants No. 1 to 5 had no right to alienate the suit property without consent of the plaintiffs.

5. Defendants filed their written statement and set up a plea that Mattus Anthony had already partitioned the suit property between his two wives Filomina and Shyam Bai during his lifetime, as such, plaintiffs' suit deserves to be dismissed.

6. Learned trial Court framed six issues and upon appreciation of oral and documentary evidence on record, decreed the suit vide judgment and decree dated 29/09/2008 holding that plaintiffs are entitled for share in the suit property (1/4 each) as the suit property was purchased by Mattus Anthony in the name of his two wives namely Filomina and Shyam Bai and suit property being the joint family property, defendants No. 1 to 5 had no right to alienate it in favour of defendant No. 6 without consent of the plaintiffs, as such, the sale deed dated 19/08/2002 is not binding upon the plaintiffs.

7. On appeal being preferred by the defendants, learned first appellate Court, though held that the suit property was purchased by Mattus Anthony in the name of his two wives, therefore, the suit property belonged to them jointly, but further held that even if the suit property has not been partitioned between them, both of them would be entitled for 1/2 share each and ultimately, vide judgment and decree dated 14/11/2008 allowed the appeal of the defendants by setting aside the judgment and decree of the trial Court.

8. Questioning the impugned judgment and decree of the first appellate Court dated 14/11/2008 passed in Civil Appeal No. 31-A/2008 (Shakuntala and Ors. v. Robert Anthony and Ors.), this second appeal under Section 100 of the CPC has been preferred by the plaintiffs in which two substantial questions of law have been framed for determination and set out in the opening paragraph of this judgment.

9. Mr. Ravindra Agrawal, learned counsel for the appellants/plaintiffs would submit that the first appellate Court has gravely erred in reversing the well-reasoned judgment and decree of the trial Court ignoring the provisions contained under Section 25 read with Sections 35 and 33(a) of the Indian Succession Act, 1925 wherein it has clearly been mentioned that a widow would get 1/3rd share and lineal descendants would get 2/3rd share in