( 1. ) THIS plaintiffs appeal under Section 96 C. P. C. is directed against the judgment and decree dated 27-8-84 passed by the Court of Additional Judge to the Court of District Judge, Chhatarpur, whereby the suit filed by the appellant for declaration that the sale-deed dated 20-5-83 executed by the respondents No. 1 and 2 in favour of respondent No. 3 for the land in dispute, alienated in the man annexed to the plaint, vide letters A-B-C-D, is not binding on the plaintiff and the same be declared void and the plaintiff alongwith respondents No. 1 and No. 2 be declared as owners thereof, has been dismissed.

( 2. ) THE short facts leading to this appeal are as under : Pandit Rajaram Sharma had three sons, viz. , Kalicharan, Durgaprased and Bhagwati Prasad. Chandra Bhanu, respondent No. 1 is the son of Kalicharan. The house in question situate in Chhatarpur, is ancestral property belonging to their common ancestor Atal Pujari and after his death Pandit Rajaram became the owner of the suit house. He died in the year 1967. After his death all his three sons, stated above, succeeded him. Kalicharan, father of Chandra Bhanu died in the year 1969. This ancestral house and the appurtenant land ad-measuring 55x 9, after the death of Kalicharan was sold by his son Chandra Bhanu and uncle Durgaprasad and they executed a sale-deed in favour of respondent No. 3 Mohandas Sindhi for an amount of Rs. 38. 000/ -.

( 3. ) THE said sale-deed has been challenged by Bhagwati Prasad, the appellant, on the ground inter alia that no partition has taken place between the parties either during the life time of Pandit Rajaram who died in the year 1967 or after the death of Kalicharan who died in the year 1969 and this an cestral house and its appurtenant land remained joint property of Bhagwati Prasad, plaintiff, respondent No. 1 Chandra Bhanu and respondent No. 2 Durgaprased (since dead and his legal representatives are on record ). Therefore, the appellant Bhagwati Prasad pleaded that the said sale-deed of the suit house and appurtenant land is not binding on him and he be declared joint owner alongwith the respondents No. 1 and 2.

( 4. ) DURGAPRASAD and Mohandas Sindhi filed a joint written-statement whereas Chandra Bhanu has filed his separate written statement. Durgaprasad died during the pendency of this appeal and accordingly his name was deleted and his legal representatives have been brought on record before this Court.

( 5. ) THE respondents, while resisting the suit justified the sale of the suit house and its appurtenant land. In the alternative it is contended that to the extent of their share, Chandrabhanu and Durgaprasad can sell the suit property and it is for the purchaser (respondent No. 3 to file a suit for partition.)

( 6. ) THE plea set up by the respondents No. 1 and 2 that partition has taken place on 25-7-59 and the suit property had come in their possession, have been negatived. Further, the various pleas raised that the same plot was got attached by one Rambux Kurmi in order to justify that the same was the exclusive property of Durgaprasad, have also been negatived.

( 7. ) THE Trial Court, however, non-suited the plaintiff on the ground that the appellant should have filed a suit for partition applying the dictum laid down in Babulal v. Tulsiram, 1978 M. P. L. J.--Note 37, giving rise to the present appeal.

( 8. ) THE point in issue which goes to the root of the case is :

"whether ancestral immovable property situated in erstwhile Vindhya Pradesh State, of undivided Hindu family, could be sold by a co-parcener to the extent of his share without the consent of other co-parceners and without getting it partitioned by metes and bounds?".

( 9. ) THIS position is n"t disputed that according to Mitakshra Law as administered in West Bengal and Uttar Pradesh, no co-parcener can alienate even for value his undivided interest without the consent of the other co-parceners, unless the alienation be for legal necessity or for payment of