The sale of a co-owner's undivided interest is valid, but a sale deed executed without legal necessity or co-owner consent is void.

Judgment :

A.C. Behera, J.

This Second Appeal has been preferred against the confirming judgment.

2. The appellants in this Second Appeal were the defendant Nos.4 and 5 before the Trial Court in the suit vide T.S. No.52 of 1987 and appellants before the 1^st Appellate Court in the first appeal vide T.A. No.39 of 1992.

The respondent Nos.1 and 2 in this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.52 of 1987 and respondent Nos.1 and 2 before the 1^st Appellate Court in the 1^st appeal vide T.A. No.39 of 1992.

The respondent Nos.3, 4 and 5 in this 2^nd Appeal were the defendant Nos.1, 2 and 3 before the Trial Court in the suit vide T.S. No.52 of 1987 and respondent Nos.3, 4 and 5 before the 1^st Appellate Court in the 1^st appeal vide T.A. No.39 of 1992.

3. The suit of the plaintiffs (respondent Nos.1 and 2 in this 2^nd Appeal) vide T.S. No.52 of 1987 before the Trial Court against the defendants (appellants and respondent Nos.3 to 5 in this 2^nd appeal) was a suit for partition, declaration and confirmation of possession.

4. The case of the plaintiffs was that, their father is defendant No.1. The defendant No.2 is the second wife of defendant No.1. They (plaintiffs) and defendant No.3 are the three sons of the defendant No.1 (Srinibas Kanungo) through his 1^st wife.

5. In order to have a better appreciation and so also for an instant reference, the aforesaid genealogy stated by the plaintiffs in their plaint is depicted hereunder:-

6. According to the plaintiffs, the defendant Nos.4 and 5 are the strangers to their family. The properties described in Schedule “A” of the plaint is their joint and undivided properties. The properties described in Schedule “B” of the plaint is the part of Schedule “A” properties.

The suit properties i.e. the properties described in Schedule “A”, which includes Schedule “B” properties are their joint family properties, because, the said properties were allotted in favour of their father i.e. defendant No.1 through a registered deed of partition dated 20.01.1950 between him and his other co-sharers. For which, the properties described in Schedule “A” (those were allotted in favour of the defendant No.1 through the aforesaid registered deed of partition dated 20.01.1950) are their joint and undivided properties. So, the said properties described in Schedule “A” are liable for partition.

When, the defendant No.1 married for the 2^nd time to the defendant No.2 i.e. Kama Kanungo, then, he (defendant No.1) started selling their joint properties gradually at the instance of the defendant No.2 and lastly the defendant No.1 came from his native village and stayed at Konark with the defendant No.2. The defendant No.1 sold the Schedule “B” properties illegally through a void sale deed dated 05.11.1985 in favour of the defendant Nos.4 and 5 without the consent and knowledge of the plaintiffs. For which, the said sale deed dated 05.11.1985 executed by the defendant No.1 in respect of the Schedule “B” properties in favour of the defendant Nos.4 and 5 is illegal, inoperative, invalid and void, because, there was no legal necessity in their family for selling the Schedule “B” properties to the defendant Nos.4 and 5. For which, without getting any way, the plaintiffs approached the Civil Court by filing the suit vide T.S. No.52 of 1987 praying for partition of their legitimate shares from the suit properties and to declare that, the sale deed dated 05.11.1985 executed by the defendant No.1 in favour of the defendant Nos.4 and