The central legal point established in the judgment is the requirement of consent for alienation of co-parcenary property under Mitakshara Law Banaras school.

Arun Mishra, J.

1. This second appeal has been preferred by the Plaintiff who had filed the suit before the trial Court for declaration that the sale deed allegedly executed by Tudu is illegal on the ground that it was never executed by Tudu in favour of Defendant Kailash Narayan. The same was with respect to the 1/2 share of agricultural land comprised in khasra No. 968 area 0.696 Hectares, and Khasra No. 1077 area 0.275 Hectares total area 0.971 Hectares situated in village Diguwan and one-fourth share of the agricultural land comprised in Khasra No. 969 area 0.898 Hectares situated in village Diguwan.

2. According to the Plaintiff, the land was co-parcenary property of the Plaintiff and his father and after the death of his father, he obtained the land by survivorship as the Plaintiff was jointly living with his father who died on December 17, 1982. Parties are governed by Mitakshara Law Banaras school and admittedly in the V.P. region, a co-parcener cannot alienate the land without the consent of the other co-parcener even to the extent of his own share.

3. Defendant No. 2. on December 22, 1982 obtained a forged sale deed in his favour by putting thumb impression of some forged person in place of Tudu who was already dead. According to him, the sale-deed dated 22-12-82 in fact was not having thumb impression of the deceased Tudu but some one else's thumb impression has been obtained on the document. No consideration was received by his father. No sale-deed could have been executed in respect of the property which was co-parcenary property and it could not have been alienated for want of legal necessity. Mutation was obtained on the strength of the sale deed which was objected and challenged. Defendant No. 2 has forcibly taken possession. He was not allowing the Plaintiff to cultivate the land. The suit was for declaration and injunction and in the alternative, for restoration of possession.

4. The Defendant in his written statement took plea that the Plaintiff is not the son of Tudu s/o Maskani resident of Diguwan but is born from some other Tudu Luhar resident of Belma who was brought up by Tudu Luhar's wife, who left her husband and started living with Tudu r/o Diguwan who died on December 30,1982. Sale deed was executed by Tudu in his lifetime and that the sale consideration was paid. It was further stated that the Plaintiff had admitted before the villagers that the sale-deed was executed by Tudu with the consent of the Plaintiff and he had not objected to mutation. Thus, the sale deed was executed with the consent of the Plaintiff and hence could not assail the sale-deed.

5. The trial Court, while decreeing the suit, came to the conclusion that the suit-property was joint family property of the Plaintiff and his father Tudu. Plaintiff's father died on 17-12-82. The sale-deed dated 22-12-82 is a forged document and does not bear the thumb impression of Tudu. Tudu was not having any right to alienate the property. The sale-deed was executed without any legal necessity and was without consideration and it also came to the conclusion that the Plaintiff is the son of Tudu.

6. In appeal, the learned first Appellate Court has affirmed the finding that the Plaintiff is the son of Tudu. However, it recorded the finding that the property is not the joint family property of Plaintiff and his father. The same has not been found to be ancestral property. It came to the conclusion that the Plaintiff has failed to prove that the document was forged he himself is not party to the execution of the sale-deed and as such he cannot challenge the sale-deed for want of consideration. The judgment and decree of trial Court have been reversed in appeal.

7. Learned Counsel for the Appellant has urged that the original sale deed has not been produced at all. Only certified copy was placed on the record. It was incumbent upon the Defendant to produce the original sale deed. No permission was granted to adduce the secondary evidence of the sale