A sale executed contrary to a will's prohibition is voidable and must be set aside; failure to do so renders the suit for possession untenable.

1. This is a second appeal by the original plaintiff. Full facts leading to this appeal are set out in the judgment dated 21st December 1966 of Mr. Justice M. V. Paranjpe who framed certain issues and referred the same for trial partly to the lower appellate Court and partly to the trial court, as will appear a little later. But for the purpose of the contentions taken before me I may perhaps set out a few of the facts which may be relevant for the purpose of those contentions.

2. The plaintiff instituted the suit from which the present appeal arises against four defendants in the court of the learned Civil Judge, Junior Division, Ahmednagar at Sangamner for possession of a house mentioned in para 1 of the plaint. It was alleged that the house originally belonged to one Bhika Hari. Bhika Hari married six wives but had no son. On 7th December 1934 he made a will bequeathing this house to his daughter's son Shivnath. The will provided that his last wife Sakhubai should take the income during her lifetime as guardian of Shivnath for maintenance. Shivnath was the son of Kondabai, the daughter of Bhika Hari from his third wife, and not from Sakhubai. Bhika Hari died on st January 1936 and on 16th June 1937 Sakhubai executed a sale deed in respect of the property left by Bhika Hari in favour of the defendant No. 1 Sonabai. Sonabai was the daughter of Sakhubai by her first husband. Bhika Hari was her second husband. The sale was in the sum of Rs. 4,000/-. On 11th June 1941, the defendant No. 1 Sonabai executed a possessory mortgage in respect of the property in favour of Kankuchand Maganlal. The said possessory mortgage was later satisfied. On 20th May 1943 Sakhubai and Sonabai executed a second mortgage in favour of the plaintiff. On 1st June 1945 Shivnath, the ultimate legatee under the will of Bhika Hari, attained majority and on 18th March 1947 he executed a conveyance of the property bequeathed to him by Bhika Hari in favour of the plaintiff. On 28th March 1951 the plaintiff filed the suit for possession claiming to be the owner under the sale deed executed by Shivnath. The suit was against the defendant No. 1 and the tenants of the property defendants Nos. 2, 3 and 4. The plaintiff alleged that Sakhubai, the widow of the testator Bhika Hari, had no authority to sell the suit property to the defendant No. 1 and that the transaction of sale in favour of the defendant No. 1 was illegal and void and the defendant No. 1 derived no title thereunder. The plaintiff also alleged that Sakhubai the widow of Bhika Hari had been the guardian of Shivnath, the plaintiff's vendor.

3. The defendant No. 1 contended that Sakhubai had sold the suit property to her for legal necessity, that is to defray the expenses incurred in the litigation in respect of Bhika's property. She contended that she had been in possession in her own right since the sale in her favour of 16th June 1937. In the alternative, the defendant No. 1 contended that Sakhubai, being the widow, was a legal heir of Bhika and the sale was valid. The defendant No. 1 also set up title by adverse possession and took up the contention that the suit was barred by the law of limitation.

4. The trial Court decreed the suit. The defendants appealed to the District Court at Ahmednagar. The learned Assistant Judge, however, disposed of the appeal only on one point holding that the suit was barred by Art. 44 of the Indian Limitation Act. He did not deal with the other points. He allowed the appeal and dismissed the suit. Against the said decision the plaintiff has filed the present