After the death of a coparcener, the interest of the deceased coparcener in the coparcenary property is carved out of the entire property, and that distinct share ceases to form a part of the coparcenary property from the moment of the death of the coparcener. The Karta of the joint family property to which the coparceners belong cannot represent the female heirs who are not coparceners.

S. ACHARYA, J.

( 1 ) DEFENDANT No. 2 has preferred this appeal against the decision of the District judge. Bolangir-Kalahandi in so far as it relates to Title Appeal No. 47 of 1973.

( 2 ) ONE Laxman Sahu died after coming into effect, of the Hindu Succession Act, 1956. Defendant No. 1 is the son and defendant No. 2 is the widow of the said laxman Sahu. Defendant No. 1 executed the registered sale deed Ext. 1 dated 10-1-1966 in favour of the plaintiff in respect of Ac. 2. 16 of land out of the properties which devolved on him and his mother, defendant No. 2, on the death of his father. The above facts are not disputed.

( 3 ) THE plaintiff's case in short is that : defendant No. 1 succeeded to the properties of his father after the death of Laxman and he (D. 1) remained in possession of the same and was functioning as the karta and manager of the said joint family properties. Defendant No. 1, for legal necessity of the family as well as for the benefit of the estate, sold the suit land (Ac. 2. 16), described in the schedule attached to the plaint, by a registered sale deed dated 10-1-1966 for a consideration of Rs. 3,500/- to the plaintiff. Since after the execution of the sale deed possession of the suit land was delivered to the plaintiff and he continued to cultivate the same on his own right. In 1967 defendant No. 2 initiated a proceeding under Section 145, Cr. P. C. and in accordance with the incorrect decision in that proceeding she is in possession of the suit land. Hence this suit.

( 4 ) DEFENDANT No. 1 did not contest the suit and he has been set ex parte. The case put forward by defendant No. 2 is that : defendant No. 1 was a minor on the date of the execution of the sale deed Ext. 1 in favour of the plaintiff; no consideration was paid by the plaintiff to defendant No. 1 for the said sale; the said sale was not for any legal necessity or benefit of the family or the estate; after the death of Laxman, defendant No. 2 became the manager of the joint family; defendant No, 1 was not managing the family affairs or the properties of Laxman; possession of the suit property was never delivered to the plaintiff and that defendant No. 2 was and is all through in possession of the entire family property including the suit property as the manager of the family and its properties.

( 5 ) THE trial court held that defendant No. 1 was not a minor at the time he executed the sale deed Ext. 1; defendant No. l was the karta of the family and he was managing the family properties and its affairs at the time of the execution of the sale deed Ext. 1; the said sale deed was executed on receipt of due consideration and that the said sale was for legal necessity and benefit of the estate. Having arrived at the aforesaid findings that court however held that as defendant No. 2 was not a coparcener of defendant No. 1, the question of legal necessity or benefit of the estate in respect of the said sale would not arise in this case, and so defendant No. 1 could validly sell his own interest in the suit property without even any legal necessity or benefit of the estate. But it held that defendant No. 1 was not competent to sell away defendant No. 2's interest in the joint properties and so the plaintiff under the sale deed Ext. 1 could acquire title to the suit property only to the extent of defendant No. 1's undivided half interest in the suit property and to no more. It also decided that as the plaintiff acquired half interest in the undivided suit property he could recover possession of half of the suit property from defendant No. 2. The plaintiff's prayer for mesne profits was disallowed.

( 6 ) AGAINST the aforesaid findings and decision of the trial court, the plaintiff preferred Title Appeal No. 47/73, and defendant No. 2 preferred Title Appeal no. 48/73 in the court below. Both these two appeals were heard together, and at that stage only the following two points were agitated for decision: (i) Whether the suit is maintainable and whe