Joint family property and co-parcenary property are distinct.

Bellie, J. (on 17-6-1991):

The question that arises for consideration in this matter is whether the sale by the plaintiff’s mother of his property during his minority is valid. The suit filed by the plaintiff for setting aside the sale was dismissed. Hence this appeal by him.

2. The plaintiffs father was one Rajamanickam Padyachi. He died in 1960. The plaintiff as a minor son and his mother-first defendant survived him. The plaint ‘B’ Schedule properties belonged to the joint family consisting of the said Rajamanickam and the plaintiff. On the death of Rajamanickam the plaintiff became entitled to 3/4th share and the first defendant to l/4th share. The second defendant who was residing in a portion of the property, taking advantage of the young age of the first defendant, got a false and fictitious sale deed dated 8. 1961 from her as representing herself and as guardian for her minor son the plaintiff as if it is supported by consideration of Rs.1,300. There was no legal necessity or justifiable reason for the sale. On these grounds the plaintiff filed the suit for setting aside the sale deed dated 8. 1961 and for partition and separate possession of the plaintiff’s 3/4th share.

3. First defendant remained ex parte, and the second defendant filed a written statement contesting the suit. After filing the written statement the second defendant died on his legal representatives have been impleaded as defendants 3 to 10 and they adopted the written statement filed by the second defendant. They raised various contentions but many of them are not necessary for the purpose of this appeal. They desired that the sale was a fictitious one, and they contended that the sale was supported by consideration, and it was executed for the benefit of the minor for legal necessity.

4. It appears during the arguments before the trial Court it was argued for the plaintiff that the first defendant-mother should have obtained previous permission from the Court for selling the minor’s property, and there being no such permission the sale deed is invalid.

5. The learned trial Judge rejected the plaintiffs case on all points raised by him and particularly holding that the sale was for legal necessity and the first defendant had right to sell the property of the minor, he dismissed the suit.

6. Now in the appeal by the plaintiff the only argument advanced is that admittedly the first defendant-mother did not get the previous permission of the Court as required under Sec.8 of the Hindu Minority and Guardianship Act to sell the minor’s interest of 3/4th share and therefore the sale in favour of the second defendant is invalid , and hence it is liable to set aside and the suit is to be decreed.

7. It is not in dispute that the suit property originally belonged to the joint family consisting of Rajamanickam and his son-the plaintiff. Rajamanickam and his son-the plaintiff were each entitled to 1/2 share of the suit property as joint family members. While so Rajamanickam died in 1960. He left behind him his minor son-the plaintiff and his wife-the first defendant. Under the Hindu Succession Act the plaintiff and his mother will be entitled to each 1/2 share in the share of Rajamanickam. Thus the plaintiff would be entitled to 3/4th share in the suit property and the first defendant would be entitled to l/4th share.

8. Now the plaintiff-son and the first defendant-mother constitute a joint family and this is also not in dispute, for a male member and a female member can always constitute a joint family (See: Gowli Buddanna v. Commissioner of Income Tax, Mysore, (1966)1 S.C.J. 586: (1966)1 I.T.J. 576: A.I.R 1966 S.C. 1523 and Sunamani Dei v. Babaji Das and others, A.I.R. 1974 Orissa 184. This family owned the entire property i.e., the property that belonged to Rajamanickam and his son-the plaintiff, in which the plaintiff will be entitled to 3/4th share and the first defendant to l/4th share.

.9. It is argued as far as the l/4th share that de