JUDGMENT 1. - This is a defendants' first appeal against the judgment and decree of the learned District Judge, Bikaner dated 30-4-1973 whereby, the plaintiffs suit for partition was decreed and a preliminary decree for partition was passed in respect of the Joint Hindu Family property in which the plaintiffs claimed their 1/2 share. 2. The plaintiffs Pukhraj and Malchand instituted a suit for partition against Laduram with the allegations that there was a common ancestor Devchand, who had three sons; Daulatram, Maghraj alias Meghraj and Chandmal, Daulatram had three sons; Harakchand, Bherudan and defendant Laduram. Harakchand has one son Mangtulal alias Mangatlal. Bherudan was survived by his widow Mst. Soni. Chandmal had three sons: Birdhi-chand, Ramlal and Nemchand. Three brothers namely; Daulatram, Maghraj @ Meghraj and Chandmal had a land in Purana Mohalla near Tehsil Bhawan in the town of Loonkaransar vide patta dated 27-11-1918 issued by the Revenue Commissioner. Maghraj has sold his eastern portion to Tarachand Rakecha and Chandmal's sons had sold their southern portion to the ancestors of the plaintiffs, which ultimately fell to the share of Malchand s/o plaintiff No. 1 Pukhraj. The plaintiffs constituted a Joint Hindu Family. 3. So far as the present suit is concerned, the plaintiff's case is that the remaining property of the aforesaid patta remained the joint property of the three sons of Daulatram. The eastern portion of that property was purchased by Tolaram from the widow of Bherudan and the remaining property remained the joint property of Harakchand's son Mangtulal and Laduram. Thus, in this property, Mangtulal and Laduram had 1/2 share each. Mangtlal sold his share to Pukhraj through a registered sale-deed dated 26-10-1968. The plaintiff No. 2 father being the Head of the Family, so he has been impleaded as plaintiff No. 2. That property has been described by the plaintiff in para 3 of the plaint. The plaintiffs made allegations regarding 'Bakal'. It was alleged that the plaintiffs had 3/4 share in the 'Bakal'. The plaintiffs therefore, sought a declaration that they have got 3/4 share in 'Bakal' and 1/2 share in the remaining property and a decree for partition be passed in respect of the property in question and the plaintiffs be put in the separate possession of their respective share. 4. The suit was contesed by the defendant Laduram. The plaintiffs therefore, sought a declaration that they have got 3/4 share in 'Bakal' and 1/2 share in the remaining property and a decree for partition be passed in respect of the property in question and the plaintiffs be put in the separate possession of their respective share. 4. The suit was contesed by the defendant Laduram. The execution of the sale-deed by Mangtulal in favour of the plaintiff No. 1 was denied. The other averments made in the plaint in respect to the suit property were also denied. An objection was taken that Jethmal, Narainchand, Navratanmal, Puranchand and Mangtulal are the necessary patties. Without they being impleaded the suit is not maintainable. A plea of misjoinder of the parties was also raised. The plea of adverse possession was also taken. It was alleged that Mangtulal as well as the alleged vendee were never in possession of the property in dispute. It was further pleaded that the court-fee paid was insufficient. Besides that the defendants since Samvat 1991-92 had been carrying on repairs and improvements openly which was never objected and Mangtulal had been admitting that the property in dispute is solely owned by the defendants and as such, the suit is not within the limitation. It was prayed that the plaintiffs suit be dismissed with costs. 5. On the pleadings of the parties as many as six issues were framed. The parties led evidence. The learned District Judge passed the preliminary decree for partition. He decided issue No. 1 in favour of the plaintiffs. Issue No. 1 related to the sale of the property by Mangtulal in favour of the plaintiffs. It was found by the learned District Judge that the plaintiffs have proved that they had puchased the share of Mangtulal and become the owner of the share of Mangturam in the suit house. Issue No. 2 related to court-fee. It was found that the court-fee paid was sufficient. Issue No. 3 related to mis-joinder and non-joinder of the parties. It was found that the suit does not suffer from any defect of non-joinder or mis-joinder of the parties. Issue No. 4 was with respect to the defendants' adverse possession. This issue was also decided by the learned District Judge against the defendants and in favour of the plaintiffs. Issue No. 5 related to the question of estoppel. It was found that the suit does not suffer from any defect of non-joinder or mis-joinder of the parties. Issue No. 4 was with respect to the defendants' adverse possession. This issue was also decided by the learned District Judge against the defendants and in favour of the plaintiffs. Issue No. 5 related to the question of estoppel. This was decided in favour of the plaintiffs and against the defendants. In view of the findings on the issues, a preliminary decree for partition was passed. Dissatisfied with the same, this appeal has been filed by the defendants. 6. When this appeal came up for hearing, this Court framed an additional issue to the effect as to whether Mangtulal sold his share in the Undivided Hindu Family's property to Pukhraj for legal necessary. The case was sent back to the learned District Judge, Bikaner for recording the evidence of both the parties on the aforesaid issue. The learned District Judge after recording the evidence, has sent his findings in favour of the plaintiffs. The learned District Judge found that it stands proved that Mangtulal sold his share for legal necessity and for that the plaintiffs had made proper and bonafide enquiry as to the existence of the necessity and had reasons to satisfy themselves for the same. 7. I have heard Mr. Guru Prakash Gupta, learned counsel for the defendant appellant and Mr. M.L. Garg learned counsel for the plaintiffs-respondents. 8. Mr Guru Prakash Gupta, learned counsel for the appellants vehemently submitted the Mangtulal is a necessary party in the suit and the suit is liable to be dismissed in his absence. He referred to Note-333 of the Hindu Law by Mulla. Clause (2) of that note deals with the parties to a suit for partition and it states that the plaintiff in a partition suit should implead as defendants if the plaintiff himself is a purchaser from a coparcener, his alienor. Under this note, it is further mentioned that the parties referred to note are necessary party and if any of them is not joined, the suit is liable to be dismissed. The entire joint family must be represented either expressly or implicitly. No case law has been cited in respect of the above submission. 9. It is to be seen as to whether Mangtulal is a necessary party in the suit. The entire joint family must be represented either expressly or implicitly. No case law has been cited in respect of the above submission. 9. It is to be seen as to whether Mangtulal is a necessary party in the suit. In a suit for partition all persons who have got interest in the suit property undoubtedly, are necessary parties. The question is when one of the coparceners has transferred his interest, even after the transfer, can it be said that he retains his interest in the coparcenary property. In Hindu Law (VII Edition Volume-1) by S. Venkataraman, Note-358 the position of the purchaser and other assigns of coparcenary interest has been dealt with and it is mentioned that where the undivided interest of a coparcener has validly passed to a stranger either by operation of law as on the insolvency of a coparcener or by purchaser either in execution of a decree or by private contract, he is entitled to claim a partition as against the other coparceners & to enforce it by a suit both during and after the life-time of that coparcener. It would mean that the transferee can claim partition of the property against the other coparceners. It is significant that the relief can only be claimed against the other coparceners cannot claim any relief against the transferor coparcener. In such a situation, in my opinion it cannot be said that a person against whom no relief is claimed or can be claimed is a necessary party in a suit for partition. When the interest of the coparcener has been transferred, then the transferee can enforce his right against the other coparceners and the suit is maintainable against them without joining the coparcener who has sold his interest in the coparcenary property. It is true that in the commentary of Hindu Law by Mulla, it is so stated that the persons mentioned in Note-2 are the necessary parties but in Note-2, what is stated in the beginning is that the plaintiffs in a partition suit should implead as defendant his alienor, if the plaintiff himself is a purchaser of interest of a coparcener. The word "should" cannot be taken as 'must'. The word "should" cannot be taken as 'must'. It so appears that in the subsequent para necessary parties have been considered to be joined in a suit for partition, in the light that the entire joint family must be represented either expressly or implicity, meaning thereby that no person should be left having an interest in the joint family property. Thus, it is an this context, it has been stated that the persons mentioned in para Note-2 are necessary parties. It has not been specifically dealt with that the suit is liable to be dismissed, in case, the alienor or coparcener has not been impleaded as a party in a suit for partition. I, therefore, find no force in the submission of the learned counsel for the appellant that the suit was not maintainable in the absence of Mangtilal. 10. It is next contended by Mr. Guruprakash Gupta, learned counsel for the appellant that the sale is bad in as much as undivided interest could not have been transferred by Mangtilal and reliance has been placed on sub-note 6 of Note 235 of the Hindu Law by Mulla, (fifteenth Edition). It has been stated that no coparcener can alienate his undivided interest even for value except in Madars, Bombay and Madhya Pradesh and reference was also made to Sri Gopinath Deb and Ors. v. Jagannath Baral and Ors., AIR 1969 Orissa 18 . In that case it has been held that a sale-deed executed by one of the coparceners in respect of the joint family property without the consent of the other coparceners cannot convey any title to the vendee It may be stated that the present case where one of the coparceners has sold his share in the joint family property. The above cited case is not a case of sale of the share of coparcener. It is not the case of sale of joint family property. In respect of such sale of joint family property it has been observed that the joint family property cannot be sold by one of the corparceners & sale by one of the coparceners cannot transfer title to the vendee. As considered above while dealing with the question necessary party when the transfer can enforce his right for partition, then it implies that the sale of the share can be effected by a coparcener. As considered above while dealing with the question necessary party when the transfer can enforce his right for partition, then it implies that the sale of the share can be effected by a coparcener. The moment a coparcener declares his intention to transfer his interest and transfers the same there would be severance of joint status in the family and that would mean that coparcener intends to enjoy his share separately. When the severance in this manner takes place, then there is no question of sale by a coparcener of his undivided interest. It is a sale of share by the coparcener. In this case the share of the coparcener according to the vendee was 1/2 in the suit property. It may be stated that ⅓rd share of the property was left transfers having been effected by Maghrai & Chandmal's branches and in branch of Daulatram. Widow of Bherudan Mst. Soni sold her share to Tolaram Bardia. It is only the two branches of Daulatram's family remained joint and Harak Chand's son Mangatilal and Laduram enjoyed the remaining property jointly but when Mangatilal decided to sell his share i.e. 1/2 share, there was severance of joint status, and he had every right to fell or transfer his share in the property. This plea was not taken by the defendant in the trial court but the plea being a legal one, was allowed to be raised. How ever, as considered and discussed above, 1 find no force in this plea and I hold that the sale-deed dated 26-10-1968 is not bad as it was a transfer of interest by one of the coparceners viz. Mangatlal after severance of joint status. 11. It is next urged by Mr. Guru Prakash, learned counsel for the appellant that execution of the sale-deed is not proved. Issue No. 1 has not been correctly decided by the trial court. He submitted that there is a solitary statement of Gumanmal (PW 2), an attesting witness. The executant has not been examined The other witness Tolaram (PW 6) has not deposed about the execution of the sale-deed and the vendee Pukhraj has not stated that the sale-deed, was executed in his favour and consideration was passed, so, in the absence of sufficient evidence, the learned District Judge was in error in holding that the execution of the sale-deed is proved. 12. 12. In order to prove the execution of the sale-deed (Ex. 3), the plaintiffs examined one of the attesting witness viz. Gumanmal (PW 2). The sale-deed (Ex. 3) is a registered document It bears endorsement of presentation to the effect that the sale deed was presented by Mangatilal s/o Harakchand aged 49 years r/o Loonkaransar and he was identified by Tolachand Bothra, The sale-deed further bears the endorsement of certificate of registration which records that the document was read over to the executant and he stated about non-passing of full consideration. In order to prove the execution of the sale-deed what is essential is to lead evidence to the effect that the document bears the signatures of the executant who bad put his signature after understanding it. The plaintiff examined Gumanmal who had deposed that the signatures C to D were made by Mangatilal in his presence on Ex. 3 and he himself attested the document and signed it at A to B and Tolachand was another attesting witness, signed at E to F and he has further deposed that the scribe Ghanshyam read over Ex. 3 to Mangatilal and he admitted its contents & thereafter he put his signatures in his presence. If his statement is read along with the fact that the document Ex. 3 was registered along with the contens of the endorsement, in my opinion, it can be taken as proved that the sale-deed Ex. 3 was executed by Mangatilal. The evidence produced by the plaintiffs, in my opinion, is sufficient. There is no evidence in rebuttal establishing that the document Ex. 3 does no bear the signatures of Mangatlal & the same was not executed by him. It is true that more evidence could have been produced but looking to the fact that the document is a registered one & the evidence of Gumanmal establishes that it was executed by Mangatlal, in my opinion, non production of more evidence could not in any way affect the finding on issue No. 1. In the principal evidence, the plaintiff has simply examined PW 1 Noor Ahmed and PW 2 Gumanmal PW 1 Noor Ahmed, prepared the plan Ex. 1. It is only in rebuttal that the plaintiffs examined Tolachand (PW 3), Sohanlal (PW 4) Pukhraj (PW 5), Tolaram (PW 6) and Noratanmal (PW 7). In the principal evidence, the plaintiff has simply examined PW 1 Noor Ahmed and PW 2 Gumanmal PW 1 Noor Ahmed, prepared the plan Ex. 1. It is only in rebuttal that the plaintiffs examined Tolachand (PW 3), Sohanlal (PW 4) Pukhraj (PW 5), Tolaram (PW 6) and Noratanmal (PW 7). The statements of Noratan Mal, Pukhraj and Tolaram have also been considered by the learned trial Judge on the point that they have stated that the suit property was sold by Mangatilal to the plaintiff. As the evidence was adduced in rebuttal so specific questions with regard to execution of the sale deed could (illegible) be put to them Nothing has been elected by the plaintiffs in cross-examination regarding the execution of the sale-deed, which was of course not necessary for the defendant. So far as the question of execution of sale-deed is concerned, what ever evidence has been adduced by the plaintiffs is sufficient to hold that Mangatilal had executed the sale-deed Ex. 3 in favour of the plaintiffs. 13. It is next urged by the learned counsel for the appellant that the finding recorded by the learned District Judge on issue No. 4 is erroneous. He referred to the evidence of the parties and urged that Mangatilal never remained in possession of the suit property and the suit property was in the exclusive possession and enjoyment of the defendants and the defendant has incurred expenses in its repairs, so, it should be found that the defendant was in adverse possession and as such no partition can be claimed in the suit property. It has been urged that Mangatilal used to reside at Ganganagar and although he tried to live in the house in question but he never lived. He tried some 17-18 years back but the defendant did not allow him to live in the house in question. Further, there are the statements of Hanumanmal, Alamgir and Gumanmal. They have deposed that Mangatilal never lived in the suit-house. As against the defendants' evidence, there is evidence led by the plaintiff consisting of Tolachand, Sohanlal, Pukhraj and Noratanmal Bothra. He tried some 17-18 years back but the defendant did not allow him to live in the house in question. Further, there are the statements of Hanumanmal, Alamgir and Gumanmal. They have deposed that Mangatilal never lived in the suit-house. As against the defendants' evidence, there is evidence led by the plaintiff consisting of Tolachand, Sohanlal, Pukhraj and Noratanmal Bothra. The evidence of these witnesses have been considered by the learned Trial Judge In order to sustain the plea of adverse possession, there should be assertion of exclusive right of the coparcener to the knowledge of the other coparcener from mere remaining in possession by one of the coparceners and incurring expenditure in effecting repairs and improvements, it cannot be taken that the other coparceners have been excluded from the enjoyment of the property. It is a settled principle of Hindu Law that possession of one coparcener is possession of all the coparceners unless there is clear and categorical evidence to prove that there had been exclusion or ouster of the other coparcener. Merely because Mangatilal used to live at Ganganagar, it cannot be taken that he was ousted from the joint family property. I need not make reference to the case law. The trial court had taken into account, some case law. I agree with the finding arrived at by the trial court on issue No. 4 and hold that the defendant has utterly failed to establish the plea of adverse possession and it is on this finding the question of court-fee rests. All the coparceners will be considered to remain in joint possession of the property in question and as such, the court-fee paid by the plaintiffs is sufficient. 14. In view of my finding, that the coparcener has a right to transfer his share, it is not necessary to go in to the question as to whether the transfer was for legal necessary, although this issue has already been decided by the learned District Judge in favour of the plaintiffs. The learned Distt. Judge has considered the evidence led by the parties on this issue. The plaintiffs evidence has been belived by the trial court which was to the effect that need for transfer arose as Mangatilal was indebted to Sahiram. From the plaintiff side, there are the statements of Malchand, Punamchand and Sahiram, and in rebuttal, there are the statements of Laduram Kamdar, and Malchand. The plaintiffs evidence has been belived by the trial court which was to the effect that need for transfer arose as Mangatilal was indebted to Sahiram. From the plaintiff side, there are the statements of Malchand, Punamchand and Sahiram, and in rebuttal, there are the statements of Laduram Kamdar, and Malchand. The learned trial Judge rightly held that the evidence led by the plaintiffs is weighty and credible as against the defendants evidence which has failed to rebut the plaintiffs' evidence effectively. 15. In the light of the above discussion, in my opinion, the learned District Judge was right in passing the preliminary decree for partition. 16. In the result, this appeal has no force, so, it is here by dismissed. How ever, in the facts and circumstances of the case, the parties shall bear their own costs of this appeal.Appeal dismissed. *******