The power of a manager of a joint family to alienate ancestral property is subject to the requirement of legal necessity or benefit of the estate, and tenant rights are protected under the Orissa Estates Abolition Act.

G. B. PATTANAIK, J.

( 1 ) PLAINTIFF is the appellant against a confirming judgment in a suit for recovery of possession on the allegation that the alienation made by the father of the plaintiff is invalid and does not convey any title.

( 2 ) THE plaintiff alleged that he along with defendants 3 and 4 are sons of late Somanath Sahu and defendant No. 2 is the widow of late Somanath Sahu. The suit plot No. 2983 under khata No. 1777 measuring an area of Ac. 0. 510 decimals is the ancestral pabayat jagir land of the family who were enjoying the same by performing the sebapuja of Lord Lingaraj. That Plot No. 2983 is adjacent to the Lawis road intervened by plot No. 2982 and plot No. 2982 belonged to one Harekrishna Batu and others. In order to have access to plot No. 2983, the plaintiff had purchased Ac. 0. O13 decimals from plot No. 2982. The plaintiff's father was adcted to opium and though he had no right to sell away the joint ancestral property without the consent of the co-parceners, he executed a registered sale deed (Ext. D) dated 12-6-65 infavour of defendant No. 1 which was without any consideration and is void. There was no family necessity for executing the sale deed and the family had never been benefited by such sale. It was also stated in the plaint that the recitals contained in the sale deed are all false. Notwithstanding the sale, the rent was being paid to the landlord by the plaintiffs family and during the current settlement, defendant No. I got her name recorded and as the said defendant No. 1 did not vacate the suit land, the plaintiff was compelled to file the suit for the relief already stated.

( 3 ) DEFENDANT No. 1 filed the written statement denying the allegations made in the plaint. It was alleged in the written statement that the plaintiff has no locus standi to file the suit since the land has vested in the State and the same has not been settled with the plaintiff. According to defendant No. 1, plaintiffs father executed the sale deed as Karta and manager of the family for meeting the family necessity and, therefore, the sale was valid. Defendants 2 and 4 filed a separate written statement supporting the plaintiff's stand.

( 4 ) ON these pleadings, the learned trial Judge framed eight issues and recorded the following findings :- (I) The disputed sale deed is duly supported by full consideration. (II) The consideration paid under the sale deed is not inadequate, and the sale deed being supported by due consideration is valid. (III) The sale was for the purpose of repayment of antecedent debt. (IV) Since the defendant No. 1 had pleaded in the written statement that the sale was effected for family necessity and since the sale deed itself mentioned that the sale was for repayment of antecedent debt and parties led evidence with regard to the fact whether there was any necessity for the sale or not and the expression "family necessity" includes "legal necessity", "benefit of the estate" and "antecedent debt", there is no substance in the argument of the plaintiff that the evidence with regard to antecedent debt cannot be looked into as it was not specifically pleaded in the written statement. (V) Defendant No. 1 has made necessary enquiries and believed in good faith that debt existed and when the eldest son of the alienee was present there was hardly any reason for the defendant to disbelieve the representation. (VI) The sale is supported by a family necessity in the sense that the plaintiffs father had antecedent debt to repay for which he sold the suit land. (VII) The plaintiff has failed to establish the allegation that the document was not read over and explained to his father and that the document was obtained by way fraud or misrepresentation. (VIII) The suit property having vested in the State Government, the plaintiff cannot claim recovery of possession from the defendant No. 1 and the suit is, therefore, not maintainable. (IX) The State of Orissa not being a party to the suit, the suit is ba