Under Hindu Law, alienation of joint family property without consent is void unless for legal necessity or antecedent debt. Sons are entitled to have the sale deed set aside without refunding the consideration paid by the vendee to the father.

Prakash Krishna, J.—The suit out of which present appeal has arisen was brought by the plaintiff respondent for cancellation of sale deed dated 18.1.1966 executed by the defendant No. 2, in favour of defendant No. 1 (appellant). The said sale deed is in respect of a house described in the plaint. The suit was filed on the allegations that the property in dispute is ancestral property. The impugned sale deed dated 18.1.1966 was executed by Ram Nath. The plaintiff Nos. 1, 2 and 3 are sons of Shiv Govind having half share in the disputed property and the plaintiff Nos. 4, 5 and 6 are the sons of Ram Nath and they along with their father Ram Nath have remaining half share in the disputed property. The pedigree has been given in the plaint, which is not in dispute. The cancellation of the sale deed was sought on number of grounds including that the sale deed was got executed by Sharda, the appellant, in his favour by playing fraud and no sale consideration was passed. The property in dispute being ancestral property, Ram Nath was not entitled to execute the sale deed in respect of ancestral property without the consent of other co-parceners. The property in question though is a house, but has been described as “Khandhar” in the

sale deed. The sale deed was neither read over nor was explained to Ram Nath who was illiterate and simple person. The transfer was never acted upon and the vendee never entered into possession of the disputed property.

2. The suit was contested on the pleas, inter alia, by denying the allegations of fraud and that sale consideration was paid at the time of execution of the sale deed and Ram Nath executed it after fully understanding the nature of deed. It was further pleaded that the defendant No. 2 Ram Nath was the absolute owner of the property sold and it was sold for the benefit of the members of his family, as the property was in the form of ‘Khandhar’ at the time of sale and the house was subsequently raised at its place by the defendant. The plaintiffs had full knowledge of the sale deed and, as such, the suit is barred by limitation.

3. The trial court framed necessary issues on the basis of pleading of the parties and found that the sale deed was for consideration and Ram Nath executed it with full knowledge and after understanding its contents and import. It was further found by the trial court that the property in question being ancestral property it could be transferred with the consent of all co-parceners or in the case of legal necessity by Ram Nath alone. The sale deed was found to be invalid by the trial court on the ground that it was not executed for legal necessity and, as such Ram Nath alone was not competent to execute the sale deed. The judgment and decree of the trial court in the aforesaid Suit No. 95 of 1971, dated 31.7.1974 has been confirmed by the first appellate Court in Civil Appeal No. 281 of 1974, vide its judgment and decree dated 23.5.1975. Aggrieved against the concurrent judgments of both the Courts below decreeing the suit for cancellation of the sale deed dated 18.1.1966 executed by defendant No. 2 Ram Nath in favour of the present appellant, present appeal has been filed. The finding of the trial court that the sale deed was executed for consideration and no fraud was played upon Ram Nath was neither challenged before the first appellate court nor before me in this appeal. The main point, which was pressed before the appellate court, was that Ram Nath was competent to alienate the property in question without the consent of other members of the family. The first appellate court decided this point, against the appellant.

4. Heard learned counsel for the parties.

5. Learned counsel for the appellant has pressed the present appeal on the following three questions :

(i) Ram Nath was competent to alienate the property in question as there was earlier partition amongst the family members.

(ii) The sale deed should be held valid at least to the extent of share