An unmarried daughter inherits her father's property to the exclusion of married daughters, but sales by the unmarried daughter are valid only if there is legal necessity.

S. BARMAN, J.

( 1 ) DEFENDANTS 2, 5, 6 and 7 being purchasers from the original defendant No. 1 hara Dei are appellants. The suit out of which this appeal arises was filed by plaintiffs Jadi Bewa and Bhalu Dei for partition and recovery of possession from defendants of the plaintiffs respective 1/3rd share each in the circumstances hereinafter stated.

( 2 ) ONE Bhikari Malik was the original owner of the suit property. He is said to have died 25 or 26 years ago leaving him surviving three daughters, namely plaintiffs jadi Bewa, Bhalu Dei and defendant No. 1 Hara Dei. The plaintiffs' case is that during Bhikari's lifetime he got all his three daughters married. After Bhikari's death the three daughters are said to have divided the movables but not the immovables. The plaintiffs had been married at a place distant from the village while defendant No. 1 Hara Dei who was married near their village enjoyed the immovable properties. It is said that taking advantage of this position defendant No. 1 Hara Dei transferred to defendants 2 to 11 the properties by different sale-deed. On May 1, 1958 the plaintiffs filed the suit for partition.

( 3 ) THE defence to the plaintiffs' suit for partition is this: Bhikari died 30 years ago, that is about 1930 by when the two plaintiffs only were married, at the time of bhikari's death defendant No. 1 Hara Dei was unmarried. She as such unmarried daughter inherited the entire properties of her deceased father. Alternatively, it was pleaded in defence that defendant No. 1 Hara Dei and her alienees being in adverse possession for more than 12 years acquired title. During the pendency of the suit original defendant No. 1 Hara Dei died leaving her surviving her children including minors who were all substituted and made parties in the suit.

( 4 ) THE trial Court dismissed the plaintiffs suit on the finding that the original defendant No. 1 Hara Dei was unmarried at the time of death of her father Bhikari and as such inherited his properties: that since the death of Bhikari, his daughter hara Dei and her alienee have been in respective possession of the suit properties adversely. In appeal the learned lower appellate Court reverted the decision of the trial Court and decreed the suit in favour of the plaintiffs on the finding that the defendant Hara Dei was married during the life time of Bhikari: that the possession of Hara Dei and her alienees is not adverse as alleged. Hence this second Appeal.

( 5 ) IF Bhikari had died leaving Hara Dei as unmarried daughter, she would under the law exclude the plaintiffs from inheriting her father's properties. After Hara dei's death the plaintiffs cannot get back the properties sold by Hara Dei unless the sales by Hara Dei were bad for want of legal necessity.

( 6 ) THE main question therefore : Was defendant Hara Dei unmarried at the time of death of her father Bhikari Malik ? According to the written statement filed by defendant Hara Dei she was not married until 1940 while her father Bhikari had died long ago in about 1930. In the sale-deed Ex. B executed by Hara Dei, elated june 6, 1940 she is described as daughter of Bhikari. The sale-deed was executed in favour of plaintiff No. 1's husband. On the same date there was another sale-deed by Hara Dei Ex 1 where also Hara Dei is described as daughter of Bhikari. The significance of these two documents lies in the fact that apart from the description of Hara Dei as daughter of Bhikari in as late as 1940, Hara Dei was selling the properties to repay the debt of her father: unless she as unmarried daughter was sole heir there is no reason why she alone would sell the properties. It is further significant that under the sale-deed Ex. B plaintiff No. 1's husband was the purchaser of the properties. Presumably, therefore, the said sale was to the knowledge of plaintiff No. 1. Exs. A and B show that Kara was still unmarried in june 1940.

( 7 ) THE sale-deed Ex. B, dated June 6, 1940 was proved by defendant No. 6