JUDGMENT Dipak Misra, J. 1. Defensibility of the judgment and decree dated 6.12.88 passed in First Appeal No. 25/85 by a learned Single Judge of this Court reversing the judgment and decree passed by the learned 3rd Additional District Judge, Rewa in C.S. No. 50-A/8 A is called in question by the defendants Nos. 1 and 2 invoking the jurisdiction of this Court under Clause 10 of the Letters Patent. 2. The respondent No. 1. Mohanlal instituted the aforesaid suit for declaration that the sale-deed (Ex. D-1) executed by Ramsakhi, the defendant No. 3, to the suit, in favour of the defendants Nos. 1 and 2, the appellants, herein, in respect of the agricultural land comprising of Khasra Nos. 403, 404, 410, 235, 236, 259; 260, 228, 221, 263, 234. 304 and 485 total area measuring 5.02 acres situated in village Silpari, tehail Hazur in the district of Rewa for a consideration or Rs. 20,000/- was null and void on the basis that no consideration has passed in the said transaction; defendant No. 3. Ramsakhi was not in a fit state of mind to execute it; and he was not competent to alienate the suit property inasmuch as the same had fall on to the share of the plaintiff in a previous partition which had taken place between him and Ramsakhi, his father. There was also prayer for perpetual injunction restraining the defendants No. 1 and 2 not to interfere in the possession of the plaintiff. To subetantiate these reliefs the plaintiff had pleaded that he and his lather alongwith defendant No. 4 constituted a joint family and the disputed properly belonged to the joint family. There was a partition of the family property in July. 1979 and in the said partition the disputed land was allotted in favour of the plaintiff and since then he is in exclusive possession of the same, It was pleaded by the plaintiff that a 'pulli' was prepared evidencing that the disputed land was allotted to the plaintiff and he had become "Bhoomiswami' of the same and thereafter, with his permission the name of defendant No. 4 was recorded in the revence papers. As relationship between the plaintiff and his father became strained and the mental condition of Ramsakhi deteriorated the defendant Nos. 1 and 2 though aware of the situation, get Ex. D-1 registered without passing of consideration. As relationship between the plaintiff and his father became strained and the mental condition of Ramsakhi deteriorated the defendant Nos. 1 and 2 though aware of the situation, get Ex. D-1 registered without passing of consideration. With the aforesaid averments the reliefs as indicated above, were sought for by the plaintiff. Defendants No. 3 and 4 supported the case of the plaintiff. It is pertinent to state here, defendant No. 4 is the son of the plaintiff through his other wife and has been living with defendant No. 3, Ramsakhi. 3. Defendant Nos. 1 and 2 resisted the suit on the ground that the disputed land was the self-acquired property of defendant No. 3, Ramsakhi and, therefore, he was fully competent to execute the sale-deed, The theory of the partition as advanced by the appellant was refuted. The further case of the defendant was that Ramsakhi and appellant continued to be joint and Ramsakhi had to sell the property to pay of the debts he had incurred for purchase of diesel engine. Apart from the above need, it was put forth by the contensting defendants that the father of the appellants needed money for performing the marriage of his grand-son, construction of the house, purchase of bullocks etc, and all these were for benefit of the joint family. Thus, as pleaded by the said defendants the sale-deed was executed for legal necessity, hence binding on the appellant. 4. The learned trial Judge framed nine issues. The main issues were whether Ramsakhi had purchased the disputed land from and out of the income of the joint family property; whether there was partition between the plaintiff and his father in the year 1979; whether defendant No. 3 was in a fit state of mind at the time of execution of the sale-deed and whether the defendant No. 3 had any saleable interest in the suit land. Considering the oral and documentary evidence on record he reached the conclusions that the suit land was purchased out of the income derived from the joint Hindu family property; there was no partition between the father and the son; Ramsakhi was fully competent the execute the sale-deed in favour defendants Nos. 1 and 2 the defendant No. 3 was mentally fit to execute the sale-deed: and he had saleable interest in the property as the plaintiff had not been able to establish exclusive ownership. 1 and 2 the defendant No. 3 was mentally fit to execute the sale-deed: and he had saleable interest in the property as the plaintiff had not been able to establish exclusive ownership. The learned trial Judge also addressed himself with regard to existence of legal necessity, and came to hold that the disputed land was alienated for legal necessity. Arriving at these conclusions the court below did no accept the stand of the plaintiff and accordingly dismissed the suit. Feeling aggrieved by the aforesaid dismissal the plaintiff preferred the First Appeal before this Court. Before the learned Single Judge, existence of legal necessity was highlighted and the learned Judge, observed that though no specific issue was framed in regard to existence of legal necessity, parties have adduced avoidance and therefore, non-framing of the issue did not fatally affected the case of the plaintiff. He has further held that it was for the alliance to plead and prove that the property was sold of the legal necessity of the joint family. He further concluded that as the trial Judge had put the onus on the plaintiff to plead and prove the legal necessity, the judgment was quite pregnable. The learned Judge has also opined that as the sale-deed was executed by the father of the plaintiff in respect of the undivided interest without the consent of the appellant the same is unvalid. 5. Impugning the aforesaid judgment, Mr. R.K. Pandey learned counsel for the appellants has raised two contentions-firstly, the learned Single Judge has absolutely erred in law in placing the onus on the defendants 1 and 2, the alienees, to prove the legal necessity for the joint Hindu family though no averments have been made in the plaint for setting aside the sale-deed on the ground that the same was not for legal necessity and secondly, the learned Single Judge has not referred to the evidence in regard to legal necessity though there is sample evidence on record in proof of legal necessity of the family and the same holds good being not controverted by the plaintiff. Mr. Ravisah Agarwal learned counsel appearing for the respondents supported the judgment for the reasons indicated therein. 6. Mr. Ravisah Agarwal learned counsel appearing for the respondents supported the judgment for the reasons indicated therein. 6. The question that falls for consideration in the present appeal whether in the facts and circumstances of the case, the sale-deed can be declared as null and void the same having been executed without legal necessity. Mr. Pandey, learned counsel for the appellant has referred us to the plaint to indicate that the pleas of legal necessity was not averred in the plaint. He has emphasised that the suit was founded on the basis of exclusive title to the plaintiff as he had categorically put forth that in the partition the disputed proparty was allotted to him. The other grounds of attack, as have been setforth in the plaint, are non-payment of consideration and mental unsoundness of the father of the plaintiff. The learned trial Judge, as we find, has returned these findings against the plaintiff. In the first appeal these findings have have not been reserved as the learned Judge has proceeded with regard to consent and legal necessity. No cross objection has been filed in this appeal not these findings are seriously disputed. We treat them as final and proceed to deal with the other relevant issue, the legal necessity. It is not disputed at the Bar that there is no pleadings in regard to legal necessity. The plaint is completely silent in that regard. The non-existence of pleadings in this regard is quite understandable inasmuch as the plaintiff, had advanced the plea of allotment of the disputed land to him in a partition thereby claiming exclusive right, title and interest over the same and questioning saleable interest of his father. The effect of absence of such pleadings is not an aspect which pales into insignificance in a suit of this nature. Once it is accepted that the property belonged to joint Hindu Family property and the theory of partition is disbelieved, it can be irrefragably stated that defendant No. 3 was the 'Karta' of the joint Hindu family and if he transferred a part of co-parcenary property, it is not binding on the other members except when it is for the legal necessity. Thus it follows; as a logical corollary, that if an alienation of this nature is required to be assailed, absence of legal necessity must be specifically pleaded by the member of joint Hindu family in his pleadings. If it is not pleaded, law does not cast a duty on the apponent to lead evidence about existence of legal necessity. It is settled in law that before the question of proof arises there must be a question for proof. If the plaintiff does not properly plead a case of impeachment of the document, relating to transaction, he cannot fall back on the abstract doctrine of burden of proof. In this regard we may refer to the decision rendered in the case of P.M. Kavada vs. A.B. Bokil A.I.R. 1971 S.C. 2228, wherein their Lordships of the Apex Court have held thus: It is no doubt true that an alliance from a karta of the joint family will have to establish that the transaction in his favour is for legal necessity and as such binding on the minor members of the family. But in this case, both the trial Court as well as the High Court have concurrently held that the appellants did not plead that Ex. 78 is not binding on them on the ground that it has not been executed by their father Mahadev for legal necessity. It has been found both by the trial Court as well as the High Court that in the absence of such a plea it was unnecessary for the plaintiff to have adduced evidence on this aspect. In view of the aforesaid principle of law there remains no iota of doubt that the plaintiff, having not pleaded in regard to lack of legal necessity, is not entitled to get the sale deed declared as null and void on that score. In the case in hand, we notice that though the plaintiff had not challenged the sale deed on the ground of absence of legal necessity, the defendants 1 and 2 taken the burden on themselves and has categorically pleaded in their written statement that Ramaskhi, the defendant No. 3, had sold the land to pay the family dabts incurred from the Bank for the purchases of diesal engine, marriage expenses of his grand son, for purchase of bullocks and for construction of his house. This aspect has been deposed by Lalmani. This aspect has been deposed by Lalmani. To satisfy ourselves we have perused the evidence of Lalmani, the defendant No. 2 who has been examined as DW. 2. We find that he has stated with regard to legal necessity. There is no cross-examination at the instance of the plaintiff in that regard. In fact, the entire cross-examination by the plaint relates to certain aspects pertaining to possession and separate dwelling by Ramsakhi. Thus we find the plaintiff was concerned only to prove partition. On a perusal of the materials on record, we are of the considered view that the alienation at the instance of defendant. No. 3 was for legal necessity. In view of our aforesaid conclusions the decision of the learned Single Judge is liable to be set aside. Accordingly we set aside the judgment and decree passed in first Appeal and restore that of the trial Court. However, in this peculiar facts and circumstances of the case the parties shall bear their own costs throughout.