Under Mitakshara School of Law, the alienation of coparcenary property, if otherwise void, does not even bind the share of the alienor.

S.P.GOYAL, J.

1. Dewan Chand father of the appellants sold land measuring 112 kanals, 101/2 marlas for Rs. 8000.00 vide sale deed D/-19-9-1963. The appellants filed this suit for joint possession of the said land alleging that they constituted a joint Hindu family with their father; that the land sold, was coparcenary property and that the sale has been made without consideration and legal necessity. The suit was contested by the vendees who controverted all the material allegations and further pleaded that the sale having been made for the benefit of the family and being an act of good management was binding on the plaintiffs. The trial Court after recording evidence of the parties negatived the plea that the property was coparcenary property and further holding that the sale had been made for consideration and legal necessity and as an act of good management dismissed the suit. Its findings were affirmed on appeal which led to the filing of this second appeal by the plaintiffs.

2. The appeal came up for hearing before me sitting singly and finding as to the ancestral nature of the land in dispute was modified holding that 2/3rd of the land in dispute was coparcenary property. Thereafter the question arose as to whether the sale was liable to be set aside in toto qua the ancestral property or was valid and binding to the extent of the share of the vendor. The learned counsel for the respondents relying on Jawala Singh V/s. Lachhman Das, AIR 1974 Punj and Har 188, urged that the sale was binding to the share of the vendors. Doubting the correctness of the decision in Jawala Singh s case (supra) I referred the following question to a larger bench :-

"Whether the sale of coparcenary property, if found to be neither for legal necessity nor for the benefit of the estate would be binding to the extent of the share of the vendor?

3. When the matter came up before the division Bench, it was brought to their notice that the decision in Jawala Singh s case (supra) had been later on confirmed by a Letters Patent Bench in L. P. A. No. 692 of 1973 (Lachhman Dass V/s. Ude Chand) decided on 31-1-1977. The Division Bench consequently referred the above question to the Full Bench.

4. It was admitted between the parties that in Punjab and Haryana, the Hindus are governed by Mitakshara School of Hindu Law. According to para 269 of the Hindu Law by Mulla which is a book of unquestioned authority since more than half a century, where a member of joint Hindu family governed by Mitakshara law sells or mortgages the joint Hindu family property or any part thereof without the consent of the coparcener, the alienation is liable to be set aside wholly unless it was for legal necessity and it does not pass the share even of the alienating corparcener. It has been further laid down in this paragraph that even in the Punjab where by custom son cannot claim partition against father, the son is entitled to joint possession with the father when the alienation is set aside. Similar is the statement of law contained in para 260. The above statement of law was duly recognised and enforced by the Privy Council in Lachhman Prasad V/s. Sarnam Singh, AIR 1917 PC 41; Anant Ram V/s. Collector of Etah, AIR 1917 PC 188 and Manna Lal V/s. Kara Singh, AIR 1919 PC 108(2). The Full Bench of the Allahabad High Court in Chandradeo Singh V/s. Mata Prasad, (1909) 1 Ind Cas 479 (FB) and Mathura Misra V/s. Rajkumar Misra AIR 1921 Pat 447 (FB) laid down the law to the same effect. In the United Punjab also as expressed in Badam V/s. Madho Ram, AIR 1922 Lah 241; Charanji Lal V/s. Kartar Singh AIR 1925 Lah 130 : Daya Ram V/s. Harcharan Dass, AIR 1928 Lah 111; Raj Kishore V/s. Madan Gopal AIR 1932 Lah 636 and Ralla Ram V/s. Atma Ram AIR 1933 Lah 343, the established view has been the same. A departure was made for the first time in Jawala Singh s case (AIR 1974 Punj and Har 188) (supra) relying on the following observations of the Supreme Court in Balmukand V/s. Kamla Wati A