JUDGMENT : D.M. Patnaik, J. - The appeal is against the judgment dated 29.7.1988 and decree dated 12.8.1988 of the Sub-Judge, Nayagarh, Preliminarily decreeing the plaintiffs 1/4th share in a suit for partition, but holding the lands alienated by the defendant-appellant to be adjusted towards his share. 2. Plaintiffs case is defendant No. 1 is the father and Karta of the joint Hindu Undivided family consisting himself, defendant No. 1 his father and defendants 2 and 3 his brothers. The suit schedule properties relate to village Nachipur. Khata No. 81 under different plots total measuring Ac. 3.14 decimals and of village Ikiri, Khata No. 228 measuring Ac. 0.63 decimals and Khata No. 94 measuring Ac. 1.16 decimals, alt total Ac. 4.93 decimals in both villages. Further case of the plaintiff is. this ancestral properties of the family were so recorded in the name of defendant No. 1 in the current settlement. The income from the lands are utilised for maintenance of the family. Plaintiff claims that from the year 1984 somewhere other the defendant No. 1 did not treat him well and rather preferred his other brother particularly defendant No. 2 in whose wife's favour he executed sale-deed in respect of Ac. 0.26 decimals of land without consideration and legal necessity. The plaintiff protested this and for this the defendant No. I threatened to alienate the entire property and thus deprive the plaintiff from his legitimate share. The plaintiff demanded partition to which defendant No. 1 turned a deaf ear. Hence the suit. 3. Defendants filed written statement wherein they admitted the sale in favour of the wife and father-in-law of defendant No. 2 and daughter of defendant No. I and thus claimed that the sale were for legal necessity to meet joint family expenses, such as expenses for education, marriages of their children and for treatment of wife of plaintiff who died in the year 1982 as well as to meet the expenses of the funeral ceremony of the wife of defendant No. I and to discharge other social obligations. The defendant No. I pleaded that he had no other sources of income excepting little amount he used to earn as a Sank in an Gayak'. Defendants claim dismissal of the suit. 4. The lower court framed the following issues: (1) Whether the suit is maintainable and the plaintiff has any cause of action to file the same? The defendant No. I pleaded that he had no other sources of income excepting little amount he used to earn as a Sank in an Gayak'. Defendants claim dismissal of the suit. 4. The lower court framed the following issues: (1) Whether the suit is maintainable and the plaintiff has any cause of action to file the same? (2) Whether the alienations made by D-l in favour of Sakuntala Devi. the wife of D-2. Sanei Mohanty the father-in-law of D-2, Madhuri Panda daughter of D-l and to Ramesh Chandra Naik and gift of Ac 0.05 decimals in favour of Gangadhar Nanda are for legal necessities and for the benefit of the joint family? (3) Whether the plots alienated by D-l should be included or not in the suit schedule? (4) Whether Rs. 15,000/- loan which is alleged to have been made hanging over the joint family, and the plaintiff and defendants are jointly and severally liable to repay the said loan? (5) To what other relief's, if any, is the plaintiff entitled to? The Court held under Issue Nos.2 and 4 that there was no legal necessity by the defendant No. 1 to alienate those properties and that the lain of Rs. 15.0007- stated to have been incurred for the benefit of the family was not proved. The court directed partition of l/4th share each but the alienated properties to be adjusted towards the share of the defendant No. 1. 5. Heard Mr. S. Mantry, learned counsel for the appellant who submitted that the total landed property of the family being Ac, 4.93 decimals and that the defendant No. 1 as the Karla of the family in order to discharge the family obligation having performed marriage ceremony of the sons and daughters and gave education to children, besides spending money for the illness of his wife and "Sudhikriya" after her death, these should have weighed in the mind of the court in holding that there was legal necessity for the family for such alienation. Also heard Mr. R. Behera. learned counsel for the respondents who supported the judgment. Respective contentions arc disposed of in the following manner. 6. The total landed property in dispute is Ac. 4.93 decimals as is cleared from the schedule] annexed to the plaint and admitted by the defendants. The family did not have any other landed properties. Also heard Mr. R. Behera. learned counsel for the respondents who supported the judgment. Respective contentions arc disposed of in the following manner. 6. The total landed property in dispute is Ac. 4.93 decimals as is cleared from the schedule] annexed to the plaint and admitted by the defendants. The family did not have any other landed properties. Admittedly, defendant No. 1 at the relevant time was a Gayak' in the Sankirtan party. The alienations by defendant No. 1 in favour of Sankuntala Devi. wife of Defendant No. 2. Sanei Mohanty father-in-law of defendant No. 2. Madhuri Panda daughter of defendant No. 1 and to Ramesh Chandra Naik and land measuring Ac. 0.05 decimals gifted to Gangadhar Nanda are admitted by the defendants. The only point for decision is whether they are for legal necessity. The court has held that there was no legal necessity. But I am of the view that such a finding is not correct, the reasons being is as follows. 7. When some one raises a plea of absence of legal necessity, it obviously mean the Karla or the Manager of the family had under his management sufficient means to maintain the family in which case question of alienation of any portion of the joint family property would not arise. Law is well settled that any alienation of any portion of the joint family property by a Karda/Manager would be invalid it if is not for legal necessity. It is needless to refer to various decisions on this point. 8. P.W. I. Ananda Chandra Nayak. is a Sankirtan Gayak. He claimed that he was getting Rs. 50/-to Rs. 100/-per day and used to get programmes 10 to 12 days in a month. Therefore, according to his own statement, income per month would be around Rs. 500/- to Rs. 1,000/-. So far income of defendant No. l is concerned, in his (P.W. 1) cross-examination he admitted that defendant No. l never showed him his income and expenditure from the landed properties. So far as income from Sankirtan was concerned, he admitted that defendant No. 1 never went for a. programme with him since he (p.w.1) was having his separate group of Sankirtan Gayak. In para-9 of the cross-examination he admitted that the defendant No. 1 had four daughters. They were all married prior to 1982. Defendant No. 1 also gave education to the children. In para-9 of the cross-examination he admitted that the defendant No. 1 had four daughters. They were all married prior to 1982. Defendant No. 1 also gave education to the children. He admitted that defendant No. 3 was reading in the Nayagarh College and the defendant No. 1 was providing him with the education. Plaintiff examined himself as P.W. 2. Though he deposed about [IK family income stating the earning of the father same as that of income of P.W.1 his own income as teacher getting Rs. 105/- per month and the income of his wife as a Nurse @. Rs. 960/- per month and his brother Basanta's contribution from the Indian Air force service. yet these are not corroborated cither by documentary or oral evidence. In the plaint, the plaintiff did not mention anything about income of the family the way he has stated in his evidence. The only allegation against father was that he did not like him and was more attached to his other brothers for which he alienated the properties in favour of his brother and his father-in-law. There is no evidence worth the name with regard to the income of the family. In the absence of any material as to what was the annual or monthly income and what was the expenditure of the family, it is difficult to conclude that the income was at least sufficient so as not to put the family in a situation necessitating sale of the joint family properties. This onus was on the plaintiff which he has failed to discharge. More so, there is no pleading as to what is the quantity of paddy the family was getting as surplus after meeting all the expenditure of the family except a bald statement that the income was sufficient. The very fact that the defendant had to maintain a big family and that the defendant No. 1 admittedly performed the marriages of the sons and daughters and considering the small extent-of land about a little more than four acres only available to the family and that the defendant No. 1 was getting a merger earning as Sankirtart Gayak. 1 am of the view that the learned lower court was not correct in holding that the alienations were not for legal necessity. 1 am of the view that the learned lower court was not correct in holding that the alienations were not for legal necessity. That apart, plaintiff is also silent about the specific amount he himself and his wife were contributing Or how much his brother was sending for the maintenance of the family. The court below has become totally oblivious to the day-to-day needs of a big joint family living in village, and their poor living conditions. 9. In the facts and circumstances mentioned above and considering the paucity of materials from the side of the plaintiff, I am of the view that the defendant No. 1 had legal necessity for selling those lands and therefore they have to be taken out of the joint family property. The judgment of the court below is set aside. One-fourth of the share be allotted to him from the balance of the landed properties, of the family if any. In the result, the appeal is allowed in part. No costs. Final Result : Allowed