HUKUMCHAND Vs. CHAMPALAL

JUDGEMENT

(1.) THIS is plaintiff's second appeal. The plaint alleges that Hukumchand plaintiff and father of Nannulal defendant 2 were real brothers and owned a house in dispute. After the death of his father Nannulal remained member of the joint family and stayed in the same house. This house was afterwards partitioned. The northern side was given to defendant 2 and the southern side came to the share of the plaintiff. There is a staircase which was not divided and remained in joint use of both the plaintiff and defendant 2, Defendant 2 sold his portion of the house to defendant 1.

(2.) IT is clear from the decision of both the lower Courts that they have misconceived the point at issue. The objection raised by the plaintiff was that as the staircase was not partitioned and remained joint family property, defendant 2 could not sell it to defendant 1. That it was not partitioned has been found by both the lower Courts. If that is the case, defendant 2 cannot sell his undivided share in the coparcenary property without the consent of the other coparceners and as the alienation is neither for a legal necessity nor for the payment of an antecedent debt the alienation is void in its entirety.