Case Note & Summary
The case arises from a partition suit filed by the plaintiff, Vimlabai, seeking partition and separate possession of joint family properties. The trial court in Special Civil Suit No.38 of 1979 decreed the suit on 9-9-1986, holding that the plaintiff was entitled to a 1/8th share in the properties described in Part-I of Schedule-B attached to the plaint, except certain fields sold by Motiram. Both parties appealed against this decree in Regular Civil Appeal Nos.496 of 1986 and 498 of 1986, which were dismissed on 21-2-1995 with some modifications. The appellants, who were the defendants in the suit, filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908. The core legal issue was whether the alienation of joint family property by a coparcener without legal necessity was valid and whether the alienee could claim a share in the partition. The appellants argued that the alienations were not binding on the joint family and that the lower courts erred in granting a share to the alienee. The respondents contended that the alienations were for legal necessity and that the concurrent findings of fact should not be disturbed. The High Court, after hearing both sides, held that no substantial question of law arose in the second appeal as the findings of the lower courts were based on proper appreciation of evidence and were not perverse. The court observed that the alienation by a coparcener without legal necessity is voidable, not void, and the alienee is entitled to the share of the alienor in the property. Consequently, the second appeal was dismissed, affirming the decree for partition and separate possession as modified by the lower appellate court.
Headnote
A) Civil Procedure Code - Second Appeal - Substantial Question of Law - Section 100 CPC - The court considered whether the second appeal involved any substantial question of law, as the findings of fact by the lower courts were concurrent. Held that no substantial question of law arises when findings are based on appreciation of evidence and are not perverse. (Paras 1-2) B) Hindu Law - Joint Family Property - Alienation by Coparcener - Legal Necessity - The court examined the validity of alienation of joint family property by a coparcener without legal necessity. Held that such alienation is voidable and not void, and the alienee is entitled to the share of the alienor in the property. (Paras 2-3) C) Partition - Alienee's Right - Share in Property - The court addressed the right of an alienee to seek partition of the alienor's share in joint family property. Held that the alienee can claim partition to the extent of the alienor's share, and the lower courts correctly decreed partition accordingly. (Paras 2-3)
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908 raises any substantial question of law regarding the validity of alienation of joint family property by a coparcener and the entitlement of the alienee to a share in the partition.
Final Decision
Second Appeal No.393 of 1995 is dismissed. The decree for partition and separate possession as modified by the lower appellate court is affirmed.
Law Points
- Partition suit
- Joint family property
- Alienation by coparcener
- Legal necessity
- Voidable transfer
- Share of alienee
- Concurrent findings
- Substantial question of law
- Section 100 CPC
