JUDGMENT 1. This is a defendant's second appeal against the judgment and decree, dated 10.1.1994, passed in Civil Appeal No. 77-A/88 by Additional District Judge, Guna, affirming the judgment and decree, dated 27.7.87 passed in Civil Suit No. 283-A of 1986 by Civil Judge, Class I, Guna. 2. The facts giving rise to this appeal are thus: The plaintiffs/respondents No.1 & 2 instituted a civil suit on 26.11.82 for declaration, possession and mesne profits at the rate of Rs. 10/- per month from the date of institution of the suit on the averments that the suit property consisting of 30 x 30 a small Kachcha house thereon situate in village Dhaneriya, Tahsil and District Guna, shown in the map annexed with the plaint was purc.hased by their father Laxmi Narayan in the presence of their grand-father, in an auction held by Gram Panchayat. After the death of Laxmi Narayan, the defendant No.1 the mother of the plaintiffs entered into an agreement to sell Ex. D-1 on 8.12.1977 for consideration of Rs. 370/with the defendant No.3 (the appellant herein). The suit property was ancestral property of which the plaintiffs (the respondents No. 1 & 2), the defendant No.1, and the defendant No. 2/the respondent No.4 were co-owners. At the time of execution of the agreement to sell the plaintiffs were minor, their mother in her own capacity was not entitled to enter into an agreement to sell/transfer the share of the plaintiffs, i.e., one half of the plaintiffs and one fourth of the defendant No.2, hence, the agreement to sell is ineffective which does not create any right, title or interest in the suit property. The defendant No.3 unauthorisedly is in illegal possession of the suit property. The defendants 1 and 2 in their written statement admitted the property being ancestral. In additional plea, it was stated by them that the defendant No.1, viz. Mishribai who entered into agreement to sell Ex. D-1 clearly stated that the plaintiffs were minor at the time of execution of Ex. D-1. Defendant No.2 s stand was that he was not a party to the agreement Ex. D-1. Defendant No.3 denied the averments in plaint and contended that Ex. D-1 was executed by the mother of the plaintiffs to the knowledge of the plaintiffs and other defendant. After execution of Ex. D-1 the defendant No.3 took the possession and raised construction worth Rs. 6,000/-. D-1. Defendant No.3 denied the averments in plaint and contended that Ex. D-1 was executed by the mother of the plaintiffs to the knowledge of the plaintiffs and other defendant. After execution of Ex. D-1 the defendant No.3 took the possession and raised construction worth Rs. 6,000/-. The amount of consideration as agreed in Ex. D-1 was paid by him Rs. 250/- to the defendant No.2 and Rs. 120/- to the defendant No.1, the executant. The suit is liable to be dismissed for non-payment of the requisite court-fee. 3. The trial Court on the evidence adduced, recorded a finding that at the time of execution of Ex. D-1, the plaintiff No.2 Ramswaroop was a minor, Ex-D-1 was not executed by adult members of the family, i.e., the plaintiff No, 1 and the defendant No.2 nor they were consenting party to Ex. D-1. From the reading of the document it is apparent that defendant No. 1 did not execute the document Ex. D-1 after taking consent from her major sons nor executed Ex-D-1 for and on behalf of minor. Ex. D-1 was also not executed by the natural guardian the mother after obtaining previous permission of the Court as required by section 8 of the Hindu Minority and Guardianship Act, 1956 (HMG Act) nor the agreement to sell was for the benefit of minor or for protection or benefit of the minor's estate. The trial Court found that the construction raised was after about four years of the institution of the suit. Therefore, it cannot be said that the plaintiffs acquiesced to the construction as the suit was instituted in 1982, hence declared the agreement to sell ineffective to the rights to the plaintiffs which they had to the extent of one-fourth each and passed a decree for possession and for the mesne profits at the rate of Rs. 10/- per month. 4. Aggrieved of the said judgment and decree the defendant No.3 preferred an appeal. The lower appellate Court on reappraisal of evidence, affirmed the findings recorded by the trial Court that at the time of execution of Ex. D-1 plaintiff No. 2 was a minor, a bare reading of Ex. 10/- per month. 4. Aggrieved of the said judgment and decree the defendant No.3 preferred an appeal. The lower appellate Court on reappraisal of evidence, affirmed the findings recorded by the trial Court that at the time of execution of Ex. D-1 plaintiff No. 2 was a minor, a bare reading of Ex. D-1 shows that it was executed by the defendant No.1 alone in her own capacity, which did not reflect the consent of the three sons nor the major sons as consenting parties signed the document, the defendant No. 1 alone was entitled to transfer her share to the extent of one-fourth only. The defendant No.1 was not entitled to hand over the possession of the suit property more than to her share of one-fourth. Thus, the plaintiffs are entitled to take back possession of the suit property from the defendant No.3. The defendant No.3, if so advised, may institute the suit for the decree for specific performance and possession against Mishribai the defendant No. 1 to the extent of her share. The lower appellate Court also affirmed the finding of the trial Court that the construction raised by the defendant No.3 was after the institution of the suit, therefore, the defendant No.3 is not entitled to any compensation or the expenses incurred in construction and is liable to pay mesne profits at the rate of Rs. 10/- per month till date of delivery of possession. 5. The appeal was admitted on 7.7.1994 by this Court on the following substantial question of law: "(1) Whether the provisions of section 8 Hindu Minority and Guardianship Act apply to the case and if so, its effect? (2) Whether the appellant is entitled to the benefit of section 53-A of the Transfer of Property Act? (3) Whether the whole of the document could be declared void or it can be declared void only to the extent of plaintiffs' share?" 6. (2) Whether the appellant is entitled to the benefit of section 53-A of the Transfer of Property Act? (3) Whether the whole of the document could be declared void or it can be declared void only to the extent of plaintiffs' share?" 6. Shri A.K. Shrivastava, learned counsel for the appellant contended that previous permission under section 8 HMG Act was not required as section 8 does not apply to the joint estate of minor in a family property of which the Manager is competent to dispose of under the general provisions of the Hindu Law, namely, for the benefit of the minor or for family need, etc., reliance was placed on decisions of this Court in Suggabai v. Smt. Hiralal ( 1969 JLJ 227 ) and S.A. No. 215/72 (G), decided on 22.1.1982 (Gullu v. Bhagchand) reported in 1982 MPWN Note 68. The widow was the Manager of the family who entered into agreement to sell for legal necessity and for the benefit of the estate as is evident from the recital in clause 2 of Ex. D-1, therefore, the Ex. D-1 was legal and binding on all the members of the family, a decision of Supreme Court in Jaisri Sahu v. Rajdewan Dubey and others ( AIR 1962 SC 83 ) and sections 181-D and 243 of the Mulla Principles of Hindu Law, 16th Edn. were relied on. Lastly, it was contended that the appellant was entitled to protect his possession due to right conferred upon him under section 53-A of Transfer of Property Act, 1882 (for short T.P. Act). 7. Shri K.K. Lahoti, learned counsel for respondents submitted that for the' first time in second appeal the appellant cannot make out a new case of sale for legal necessity or for benefit of the estate or of protection of his possession in a right conferred on him by section 53-A of T.P. Act. Besides, pleading neither there is any issue nor there is any evidence, even the defendant No.3 who examined himself as D.W.1, has not stated so. Without prejudice, it was submitted that even if the document was executed by the plaintiffs' mother as Manager for the benefit of the estate, there were two adult members one the plaintiff No.2 and other defendant No.2. Without prejudice, it was submitted that even if the document was executed by the plaintiffs' mother as Manager for the benefit of the estate, there were two adult members one the plaintiff No.2 and other defendant No.2. Therefore, when the adult members are in existence the judgment is not be of the Manager of the family alone, but as all of adult members of the family including Manager. The appellant can also not be allowed to take defence under section 53-A of the T.P. Act, as conditions essential to it neither have been pleaded nor have been proved. Besides, the two adult members were not party to the agreement to sell who were the co-owners this defence would not be available against the plaintiffs and defendant No.2. Suit property is a joint family property in which three sons and mother had equal share of l/4th each. Agreement to sell does not convey any right, title or interest. It creates only an enforceable right between the parties. Therefore, the suit was rightly decreed for possession and mesne profits as the defendant/appellant cannot remain in possession nor can obtain possession to the extent of the share of the mother without instituting the suit for partition specifying mother's share. Hence, this Court would not interfere in second appeal. Counsel cited Nathulal v. Phoolchand ( AIR 1970 SC 546 ), Namdeo v. Collector East Nimar Khandwa and others [ 1996 JLJ 451 (SC)], Navneethammal v. Arjuna Chetty (1996 AIR SCW 3635), Dorab Cawasji Warden v. Coomi Sorab Warden and others ( AIR 1990 SC 867 ), Ramkrishna and others v. Vitthal Rao and others ( 1978 JLJ 450 ), S.A. No. 416/67 (I), decided on 28.4.78 (Teja Singh v. Sodan Singh) (1978-11 MPWN 180), S.A. No. of 1973 (G), decided on 29.11.1983 (Shambhunath v. Badriprasad) ( 1984 MPWN 184 ), S.A, No. 335 of 1975 (I), decided on 9.2.1988 (Mangilal v. Gendalal) (1988-1 MPWN 112), Bhagwati Prasad v. Ushadevi and others ( AIR 1995 MP 205 ), and Kallu v. Smt. Prem Bai and others (1997 RN 238). 8. 8. The contention that the prior permission under section 8 HMG Act was not necessary as section 8 does not apply to the joint interest of a minor in a family property which the Manager is competent to dispose for the benefit of the estate and for the legal necessity or for family need under the provisions of Hindu law, placing reliance on two decisions of this Court in Suggabai's case (supra) and Gullu 's case (supra) need not be gone into as the lower appellate Court has not declared the agreement to sell invalid for want of previous permission of the Court as required by section 8 (2) HMG Act, and rightly so as it was a case of the joint interest of minor in family property of which the agreement to sell was entered into by the widow. 9. However, as the suit property was joint Hindu family property, and the adult members are not the executant or consenting party nor the recitals of Ex. D-1 show that the widow executed the agreement for and on behalf of minor, the widow could not have alienated or transferred shares of other members of the family or enter into an agreement to sell as a Manager of the family unless the transaction was for legal necessity or for the benefit of the estate. The recital in clause 2 of the agreement Ex. D-1 shows that some villagers keep enemity with her and, therefore, there is an apprehension of danger to her and to her children dependent on her, hence it was impossible for her to live, therefore she has shifted from village Dhaneriya to Guna to pass her life peacefully and, therefore she has entered into an agreement to sell the house for a consideration of Rs.370/- But, this recital would itself be not enough that agreement to sell entered into was for the benefit of estate, in the facts and circumstances of this case, as for this neither there is a pleading nor any evidence. 10. 10. Admittedly, at the time of execution of agreement to sell other members were in existence, therefore, the judgment that agreement to sell was entered into for the family need or for the benefit of the estate, was not that of defendant No.1 Manager of the family alone but ought to have been of all the adult members of the family, including the Manager so as to make the transaction binding on the family. That essentiality has neither been pleaded nor established, hence, the transaction would not bind the family. See Balmukund v. Kamla Wati and another ( AIR 1964 SC 1385 ), Section 243-A of the Principles of Hindu Law by Mulla. Even the defendant No.3 has not put this case to the plaintiffs' witnesses nor the defendant in his statement has stated that it was on the collective judgment of adult members and the defendant No.1 the agreement to sell was entered into for the benefit of the estate. It is also well settled that the onus of proving that alienation was for legal necessity or for benefit of the estate or for family need is to be discharged by proof of actual necessity or by proof of proper and bona fide enquiries about the existence of the necessity and that a transferee did all that was reasonable to satisfy himself as to existence of such necessity. See Tejasingh 's case (supra). Therefore, the recitals only in a deed of legal necessity or for the benefit of estate do not by themselves prove legal necessity. Though the recitals are admissible in evidence, and may be used to corroborate other evidence of the existence of necessity. What weight to be attached to the recitals would vary according to the circumstances of the case In the present case, except the recitals in Ex. D-1 there is no evidence which can be corroborated by the recitals so as to establish that the alienation was for the benefit of the estate. Therefore, no weight can be attached to the recitals of Ex. D-1. See Smt. Rani and another v. Smt. Shanta Bala Debnath and others ( AIR 1971 SC 1028 ) and the decision of this Court in Ramkrishna' s case (supra). 11. The contention that the appellant is entitled to protect his possession in a right conferred by section 53-A of the T.P. Act has no merit. D-1. See Smt. Rani and another v. Smt. Shanta Bala Debnath and others ( AIR 1971 SC 1028 ) and the decision of this Court in Ramkrishna' s case (supra). 11. The contention that the appellant is entitled to protect his possession in a right conferred by section 53-A of the T.P. Act has no merit. It is well settled that an agreement to sell does not convey any right, title or interest in the property it creates only an enforceable right between the parties. See the decision of Supreme Court in Namdeo' s case (supra). The agreement executed by the widow would have operated as a bar for protecting the possession. But, in the absence of the pleading and evidence of all the four -essential conditions necessary for making out a defence of part performance to protect possession claimed by the plaintiffs would not be attracted. See decision of Supreme Court in case of Nathulal (supra). 12. Besides, there being no case of section 53-A, the doctrine of part performance was not available against other co-owners, i.e. the two brothers who were not the signatories to the agreement or the consenting party nor the recitals show that the agreement was entered into with the consent of the adult members, therefore the protection of doctrine of part performance was not available to the defendant No.3 against the plaintiffs. See the decisions of this Court in Mangilal's case (supra) and Shambhunath' s case (supra). 13. Therefore, even if the agreement was valid to the extent of the share of the widow, as held by the lower appellate Court, the remedy for the appellant was to institute a suit for decree for specific performance to the extent of share of the widow and also suit for partition as it was a Hindu undivided family property. It is well settled that a co-owner has a right to alienate his undivided interest in the joint family property, but cannot alienate any specific property belonging to the co-parcenary on the basis of such interest as without partition no co-owner can claim any such property as his own. In case he does alienate, the alienation would be valid to his share alone alienated property. In such a situation the remedy for the purchaser is to institute a suit for general partition against other co-owners. In case he does alienate, the alienation would be valid to his share alone alienated property. In such a situation the remedy for the purchaser is to institute a suit for general partition against other co-owners. It is only on partition and specific allotment of the property the purchaser can take possession. See Full Bench decision in Ramdayal v. Manaklal ( 1973 JLJ 764 ), and the decisions in case of Bhagwati Prasad (supra) and Kallu (supra) & Article 261 of Mulla Principles of Hindu Law, 16th Edn. page 296. 14. In the circumstances, the lower appellate Court was right in holding that the appellant cannot seek any relief on the basis of an agreement to sell to the extent of share of the widow and thus rightly decreed the suit. 15. In the result the appeal fails and is dismissed without any order as to costs.