A sale of joint family property by the karta without legal necessity is not binding on the other members of the family.

S. BARMAN, J.

( 1 ) THIS appeal filed by defendants arises out of a suit filed by the plaintiff for partition. The suit property consists of three plots namely, 1210 (Bari land) 19 decimals, 1211 (home stead Ghara) 2 decimals and plot No. 1212 (Gahira) 3 decimals--the total area being 24 dec.

( 2 ) ONE Laxman Pattal had 2 sons Basi and Sunakar. Basil's son was Bauri and plaintiff Sudarsan is the son of Bauri. Thus plaintiff represents Basil's branch of family. Suna's son was Banchhanidhi; defdts 1 and 2 are the sons of banchhanidhi. Thus defendants 1 and 2--Panu and Bishnu respectively represent suna's branch of family.

( 3 ) THE plaintiff's case is that two branches of Basu and Suna were joint; after the death of Basu's son Bauri, Suna's son Banchhanidhi became the karta of the family. In 1932, out of plot No. 1210, 8 decimals were sold by both the branches to two different persons namely Kumar Sahu and Gajendra Sahu who are not parties in the suit. In 1937, Banchhanidhi sold by Ext. 1, 6 decimals for Rs. 12 out of the entire three plots to one Sk. Gafur. Sk. Gafur is said to have sold the said G dec. to one Abdul Rahman. In 1950, defendant No. 1 purchased the said G decimals from Abdul Rahman by a registered sale deed Ext. 2. In 1961, the plaintiff filed the suit for partition claiming half share in the entire suit properties except 8 decimals sold to the Sahus that is to say the plaintiff claimed half of the remaining 16 dec. of the suit properties.

( 4 ) THE defence to the suit is that there was already a partition, the suit for partition is not maintainable; sale of 6 decimals by Banchhanidhi as Karta in 1937 cannot be assailed in this suit for partition.

( 5 ) THE trial Court dismissed the suit for partition on the finding that there was a prior partition. In appeal, the learned lower appellate Court found that there was no partition, in any event the sale of 6 decimals of land by Banchhanidhi in 1937 was not for legal necessity. The learned lower appellate Court passed a decree in favour of the plaintiff giving 50 per cent share in the suit property and directed the commissioner to carve out the same and he was also directed to allot 6 decimals of land purchased by defendant No. 1 into the share of the defendants. It is against this decision of the learned lower appellate Court that the defendants have filed the second appeal.

( 6 ) THE points urged on behalf of the defendants-appellants are these: The six decimals of land which was initially sold by Banchhanidhi in 1937 under Ext. 1 to sk. Gafur ultimately was purchased by defendant No. 1 under Ext. 2 in the year 1950. It was contended on behalf of the defendants-appellants that though the plaintiff had filed a suit in the garb of a partition suit but in substance he wanted to avoid sale of 6 decimals of land in 1937 by Banchhanidhi. The defendants' point is that the claim for the said 6 decimals of land was barred by limitation. It was further submitted that the sale in 1937 by" Banchhanidhi was for legal necessity, the sale was not void but only voidable; the said sale having not been challenged within 12 years of the sale it cannot now be challenged in the present suit filed in 1961, i. e. , more than 12 years after the sale.

( 7 ) IN support of their contention, the defendants relied on a decision of the Madras high Court in Raja Ramaswami v. Govindamal, AIR 1929 Mad 313 wherein it was held that:

"it is not the form of the relief claimed which determines the real character of the suit for the purpose of ascertaining under which articles of the Limitation Act the suit falls. Though the relief claimed in the suit is possession of immovable property yet if the properly sued for is held by the contesting defendant under a sale or other transfer which is not void, but only voidable, and he cannot obtain possession without the transfer being set aside, the suit must be regarded as one brought to set aside the transfer though no relief in those terms is prayed for,