The undivided interest of a coparcener in a joint Mitakshara family cannot be the subject matter of alienation, be it for consideration or gratuitous.

MOHAPATRA, J.

( 1 ) THIS is an appeal against the judgment dated 20-7-1949 of Sri S. K. Mohapatra, additional Subordinate Judge of Puri, confirming the decree dated 8-9-1948 of Sri n. K. Das, Munsif of Puri, arising out of a suit brought by the plaintiffs for specific performance of contract alleged to have been entered into between the plaintiffs and the original defendant 1 (Jagabandhu Mohapatra) as manager of the Hindu joint family consisting of himself, and his minor sons and nepnews (defendants 2 to 8 ). Jagabandhu and Dinabandhu were two brothers. Dinabandhu predeceased jagabandhu in a state of jointness leaving his widow Suryamani and his two minor sons (defendants 7 and 8 ). The original defendants 2 to 6 are the sons of jagabandhu who were minors at the first date of the contract, that is, 20-6-1942 but defendant 2 attained majority in the meantime and defendant 1 (Jagabandhu)died during the pendency of the suit. The plaintiffs' case is that the said jagabandhu executed an agreement in favour of the plaintiffs on 20-6-1942 on a plain paper and received a sum of Rs. 50/- as advance of the consideration for the sale of a homestead land with a house thereon, the area of the homestead being. 055 Situate in the town of Puri. The consideration was settled at Rs. 800/ -. On 30-9-1942 Jagaoandnu purchased stamps worth Rs. 12/- and handed over tne same to the plaintiffs. On 18-6-1945 both defendant 1 and his son defendant 2 (who had by then attained, majority) jointly executed a sale-deed in pursuance of the aforesaid contract in favour of the plaintiffs. The sale-deed was executed by defendant 1 on his own behalf and on behalf of his minor sons and nephews. The sale-deed in favour of the plaintiffs however could not be registered as the plaintiffs fell ill and on account of other reasons. Thereafter Suryamani, as mother guardian of defendants 7 and 8, executed a sale-deed in favour of defendant 9 on 5-1-1946 for a consideration of Rs. 1000/- in respect of half of the property and defendant 1 for self and as guardian of his minor sons and defendant 2 both executed a sale-deed in favour of defendant 10 on 23-1-1946 for a consideration of Rs. 1100/- in respect of the other half of the property. The plaintiffs' have therefore brought the suit, for specific performance of contract on the allegation that the Kabalas in favour of defendants 9 and 10 are bogus transactions, or in any event they (defendants 9 and 10) having notice of previous contract the plaintiffs are entitled to a decree for specific performance against all the defendants.

( 2 ) THE defence taken was that the contract for sale in favour of the plaintiffs was not bona fide and genuine and did not take place prior to-the Kabalas in favour of defendants 9 and 10.

( 3 ) BEFORE the hearing of the appeal commenced, a preliminary point was taken on behalf of the respondents by reference to previous order passed by this Court on 12-9-1950 that the' present appeal could not proceed. The order dated 12-9-1950 is as follows:

"we direct that the Deputy Registrar be appointed the guardian of the minors. The plaintiffs must pay a sum of Rs. 20/12/- as guardian cost within two weeks hence, failing, which the appeal shall stand dismissed as against minor respondents 2 to 6 without further reference to a bench. "

In fact the plaintiffs failed to comply with the present order and a subsequent order was passed by the Deputy Registrar on 27-9-1950 to the effect that

"guardian's cost for minor respondents 2 to 6 not having been deposited in time, appeal against the said minor respondents stands dismissed in pursuance of Order No. 8, dated 12-9-1950. "

Respondents 2 to 6 are minors and were represented in the lower Court by a pleader guardian ad litem. The pleader guardian having intimated in an application by post to the Court on 22-6-1950 that he might be excused from representing the minors in the High Court, the Registrar passed an order on 28-8-1950, at the request of the appellan