- (1.)In this appeal by the plaintiff in the suit the question that we are called upon to decide is a simple one. Suit properties described in Schedules B, C and D are said to have belonged to the joint family of the plaintiff of which the first defendant is the manager. B and C schedules are immovable properties. B schedule properties were sold under Ex. B1 on 6-10-1961 by defendants 1 to 3 acting also as guardian of the minor members of the family, in favour of 7th defendant for a consideration of Rs. 25,000/-. The plaintiff is one of such minor members and plaintiff now sues for partition claiming the share in plaint B schedule property also. The sale deed Ex. B1 is sought to be avoided on the ground that it is not binding on the family as one unsupported by consideration as well as necessity. Plaintiff and defendants 2 to 5 are the children of the first defendant while the 6th defendant is the son of the second defendant. In a partition of the joint family properties plaintiff as well as defendants 1 and 3 to 5 are each entitled to 1/6th share while the second defendant along with the 6th defendant is entitled to 1/6th share. Therefore defendants 1 to 3 are entitled to 5 1/2 share. The sale deed was sought to be supported by the 7th defendant on the ground that at the time it was executed there were several debts binding on the family, that these debts could not be paid off from the income of the properties, that amounts were also expended for the purpose of improving the C Schedule properties and this was by borrowing and further that B Schedule properties were not yielding .any appreciable income. Therefore it is said that the first defendant acted prudently as manager in executing the sale deed Ex. B1 along with the other major members of the comparaenary. The Court below did not accept this plea finding that the debts were proved only to the extent of Rs. 6,235/- and pressing necessity for disposal of the B Schedule property for Rs. 25,000/- was not proved in the case. All the same, the 7th defendant got substantial relief and in fact it may not be far from wrong to say that whatever she wanted she obtained. This is by the direction that B Schedule properties would be available to the 7th defendant towards the share of her alienors, defendants 1 to 3. Taking into account the extent of the properties covered by B and C Schedules, the Court below found that B Schedule properties are less than the value of C Schedule and therefore for the 5 1/2 share B Schedule properties would be available to defendants 1 to 3 and that would mean that the alienee, the 7th defendant could get these properties. The result is that though on the question of binding nature of Ex. B1 the Court had found against the 7th defendant, still she obtained the B Schedule properties. Aggrieved by this, plaintiff has filed the appeal to this Court.
(2.)Of course, it cannot be disputed that in a suit for general partition the alienees of specific items of properties are entitled to plead that as far as possible those properties should be allotted to the shares of alienors whose alienations are impeached and that must be available to the alienees. The only contention urged before us is that even so, the direction by the Court below that the entire B Schedule properties must fall to the share of defendants 1 to 3 and consequently must be allotted to the 7th defendant is erroneous in law. For, without a proper adjudication as to the value of these items of properties and also of C Schedule items, it cannot be predicted that the entire B Schedule properties will be available for the 5 1/2 share. Possibly defendants 1 to 3 may get the B Schedule properties, the whole of it or more towards their share. But merely on the basis of extent or income the Court which prima facie thinks that the share of defendants 1 to 3 will be equivalent to the value of B Schedule items should not have found so finally without further evidence. That is a matter for decision under the final decree. In fact, if the share of defendants 1 to 3 will not be satisfied by B Schedule items, they are entitled to be allotted that much more to make up such share out of other items. Hence the proper decree in the case would be to allot 5 1/2 share to defendants 1 to 3 out of the B, C and D Schedule items and in doing so B Schedule item must first be set apart for such share, to the extent it will cover 5 1/2 share. If the whole of the B Schedule item would not be sufficient to cover such 5 1/2, naturally the 1 rest must be made up from other items of properties. To the extent B Schedule items are set apart to defendants 1 to 3 it must be allotted in the final decree to the 7th defendant subject to the direction to deposit balance of consideration, a matter to which we will presently refer. We should also point out here that in valuing B Schedule items for the purpose of partition the improvements effected since Ex. B1 date should not be reckoned or in other words the value of B Schedule items without reckoning the improvements on them effected after Ex. B1 date should be taken as value for the purpose of partition.
(3.)Before we finally decide the appeal it is necessary to refer to the objections to the finding of the Court below urged before us in this Court. The decree of the Court below is apparently in favour of the 7th defendant and the 7th defendant need not therefore file any cross objection as he has done. The attempt appears to be to support the decree of the Court below on other grounds namely, that the sale deed is supported by necessity and consideration. If that be the case, the proper course would have been to file objection to the finding or to urge such objection. But we treat the cross objection filed as a mere objection to the finding.