JUDGMENT : The appellants by filing this appeal have called in question the judgment and the preliminary decree passed by learned Additional Subordinate Judge, Balasore in Suit No.75/81/125/78-I. It may be mentioned here that out of the four original appellants, the appellant nos. 1, 3 and 4 have died and their legal representatives being substituted are prosecuting the appeal. The original appellant nos. 1, 3 and 4 have been arraigned in the suit as defendant nos. 12, 18 and 20 respectively. The appellant no.2, who is the only surviving appellant had been arraigned as the defendant no.2. The plaintiff is the respondent no. 1. Rest of the defendants who are alive have been arraigned as respondents in this appeal. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that he with defendant nos. 1 to 9 are members of a Hindu joint family, governed by Mitaskhara School of Hindu Law. One Prasanna Kumar Giri is the common ancestor of the parties. He had two wives namely, Rajeswari and Manorama. Defendant nos. 1 to 4 are the sons and daughters of Prasanna through his first wife Rajeswari whereas plaintiff and defendant no. 5 are the sons through the second wife, who is defendant no.6. Prasanna had five brothers. They had ancestral property in Mouza Parikhi in the State of Odisha and also some other landed properties in the then District of Midnapur in the State of West Bengal. It is stated that Prasanna and his five brothers had separated themselves in the year 1957 by way of a registered deed of partition and in terms of the same. In that partition, the ancestral properties described in lot no.1 of schedule ‘Kha’ in Mouza Parikhi are stated to have fallen in the share of Prasanna. It is further stated that he had acquired near about Ac.5.00 decimals of land in Mouza Ragadpatia under lease from the Ex-ruler of Kanika. He had also acquired land of Ac.5.00 decimals in the name of his eldest son, the defendant no.1 from the Ex-Ruler, Kanika with the utilization of the joint family fund. It is further stated that he had acquired near about Ac.5.00 decimals of land in Mouza Ragadpatia under lease from the Ex-ruler of Kanika. He had also acquired land of Ac.5.00 decimals in the name of his eldest son, the defendant no.1 from the Ex-Ruler, Kanika with the utilization of the joint family fund. The plaintiff was born on 18.4.60 and his father died in the year 1963 after having suffered from ailment for a period of three years next before the death. The plaintiff and his brothers after the death of their father have been possessing the landed properties left by their father. It is stated that on 08.06.1978 the contesting defendants tried to forcibly possess some land from out of properties as described in lot no.1 of schedule ‘Kha’ of the plaint. So there was some disturbance and at that time defendant no.7 to 9 disclosed that they had purchased the land measuring Ac.3.15 dec. as described in schedule ‘Ga’ of the plaint from defendant no.3, Saraswati by a registered sale deed. The plaintiff made enquiry and came to know that defendant no. 3, Saraswati with the help of defendant no.1 had managed to obtain the sale deed from Late Prasanna by practising fraud and by way of manipulation. The sale deed is attacked as not genuine and to be of no legal value/force. It is also said that despite such sale deed, the parties have never altered their position vis-à-vis property involved in the sale deed and it was not even known to anyone. It is further asserted that another sale deed was obtained from the father of the plaintiff showing sale of Ac.5.00 dec. of land in the name of Kati Bewa which include Ac.3.15 decimals earlier said to have been sold to Saraswati. Plaintiff is stated to have requested his brothers for partition of the property by metes and bounds and as they turned deaf ear to the same and further as on 5.6.78, the defendant nos. 6 to 9 created trouble in respect of possession of the suit land by the plaintiff, the cause of action for filing the suit having finally arisen, it has been so filed. 4. Defendant nos. 4, 7, 8, 9, 12, 13, 18, 19 and 40 have filed a joint written statement. The defendant no. 6 to 9 created trouble in respect of possession of the suit land by the plaintiff, the cause of action for filing the suit having finally arisen, it has been so filed. 4. Defendant nos. 4, 7, 8, 9, 12, 13, 18, 19 and 40 have filed a joint written statement. The defendant no. 4 though had filed another written statement jointly with other contesting defendants, has not finally come forward to contest the suit. Defendant nos. 5 and 6 though have filed a joint written statement, have not ultimately contested the suit. The first set of defendants as above in their joint written statement, besides the objections with regard to the maintainability of the suit as also the suit being barred by limitation have mainly contested the suit on the ground that the land measuring Ac.3.15 dec. as described in schedule ‘Ga’ is not liable for partition as Prasanna has already sold the same to her daughter Saraswati under registered sale deed dated 25.7.60 (Ext. J). It is further stated that the land of Ac.5.00 dec. as described in lot no. 3 in schedule ‘Kha’ is the self-acquired property of defendant no.1 and not the joint family property as alleged. So it is said that this Ac.5.00 dec. of land is also not liable to be partitioned. The sale deed executed by Prasanna in favour of his daughter namely, Saraswati, defendant no.3 on 25.7.60 is asserted to be genuine being duly executed by Prasanna for consideration and as per his own will and volition. It is said that there was no such fraudulent activity in its coming into being. 5. The trial court on the above rival pleadings has framed the following issues :- 1. Has the plaintiff any cause of action to bring the suit? 2. Is the suit maintainable in the present form? 3. Is the suit barred by law of limitation? 4. Is the plaintiff entitled to partition? 5. Is the sale deed executed in favour of the defendant no.3 genuine and for consideration? 6. Is the land in schedule ‘Kha’ lot no.3 acquired in the name of defendant no.1 his self acquired property? 7. Is the share claimed by the plaintiff true and correct? 8. To what relief, if any, the plaintiff is entitled? 6. 5. Is the sale deed executed in favour of the defendant no.3 genuine and for consideration? 6. Is the land in schedule ‘Kha’ lot no.3 acquired in the name of defendant no.1 his self acquired property? 7. Is the share claimed by the plaintiff true and correct? 8. To what relief, if any, the plaintiff is entitled? 6. Answer to issue no.3 has gone in favour of the plaintiff holding the suit to be maintainable as not barred by limitation for the reliefs claimed. The crucial issue no.5 with regard to the validity of the sale deed standing in the name of defendant no. 3 whether genuine or not, the trial court has rendered the answer upon evaluation of evidence and their appreciation at its level that the sale deed in question i.e. Ext. J standing in favour of Saraswati said to have been executed by her father Prasanna is not a genuine one, without consideration and has never been acted upon. The next important issue with regard to the property described in lot no.3 of schedule ‘Kha’ as regards its nature whether is self-acquired property of defendant no.1 or not, the answer has been recorded that it is the self-acquired property of defendant no. 1 and was not so acquired through any sort of investment/utilisation from out of the joint family fund. In view of such findings lastly coming to the entitlement of the plaintiff and his claim of partition, the same has been confined to lot nos. 1 and 2 of ‘Kha’ schedule keeping the properties described in lot no. 3 of said ‘Kha’ schedule out of the purview of the partition as belonging to defendant no. 1. It has also been the order that the property described in schedule ‘Ga’ which is not a part of lot no.1 of ‘Kha’ schedule is liable to partition. The other contesting defendants have been found to have not acquired any title over the said property as the alienees from Saraswati who had never been clothed with the title so as to transfer in favour of those defendants and the basis of acquiring the title i.e. the sale deed in her favour under Ext. J is invalid. 7. The other contesting defendants have been found to have not acquired any title over the said property as the alienees from Saraswati who had never been clothed with the title so as to transfer in favour of those defendants and the basis of acquiring the title i.e. the sale deed in her favour under Ext. J is invalid. 7. Answering other issues which are consequential to the findings as aforesaid, the trial court has passed the following order :- “Order That the suit be decreed in part preliminarily against the defendants No. 7 to 9, 12, 13, 18 to 20 on contest with cost and ex parte against the remaining defendants without cost. The plaintiff’s suit for partition is decreed in respect of the properties described in lot nos. 1 and 2 of Kha schedule and his prayer for partition of the property described in lot no.3 in Kha schedule is dismissed. Lot no. 3 is not liable for partition being the self acquired property of defendant no.1. Plaintiff’s 4/21th share in the property liable for partition is hereby declared, Defendants No. 1, 2, 5 and 6 each are entitled to 4/21th share and defendant No. 4 is entitled to 1/42th share. The parties do amicably partition the suit property within a month hence failing which either of them may apply to the court for making the decree final in which case a sum of Rs.150/- be tentatively deposited towards the fees of the commr, while effecting partition the parties or the commr as the case may be should respect the present possession of the parties so far practicable and equitable.” 8. It is pertinent to state here that the plaintiff has not filed any appeal questioning the answer on issue no. 6 running against his case that lot no.3 property is the joint family property which has been held to be the self-acquired property of the defendant no.1and thereby declining to pass any preliminary decree for partition in respect of said property as prayed for by the plaintiff. Nor, even after receiving the notice of this appeal filed by the defendant nos. 2, 12, 18 and 20, any such cross appeal or objection has been filed under order 41 rule 22 of the Code of Civil Procedure. Nor, even after receiving the notice of this appeal filed by the defendant nos. 2, 12, 18 and 20, any such cross appeal or objection has been filed under order 41 rule 22 of the Code of Civil Procedure. It be also mentioned at this stage that learned counsel for the respondent-plaintiff has not made any submission in respect of that answer to the issue no.6 in course of the hearing of this appeal. 9. Learned counsel for the appellant mainly challenges the answer rendered by the trial court in respect of issue nos. 5 by which finally the case and/ or claim of the defendants through purchase from Saraswati have been negative. He submits that such finding rendered by the trial court are not the outcome of proper appreciation of evidence on record keeping in view the relevant circumstances which have emanated from their evidence. It is submitted that these defendant-appellants who are the subsequent purchasers from Saraswati under no circumstance ought to have been made to suffer as they are bona fide purchasers for value. He further submits that the finding of the trial court that the sale deed executed by Prasanna in favour of his daughter Saraswati, the defendant no. 3 vide Ext. J is invalid is contrary to the evidence on record as well as the settled position of law governing the field. According to him, said sale deed, Ext.J ought to have been found to be genuine and valid. It is pointed out that the circumstances which have been taken into consideration by the trial court to hold that the sale has never been acted upon are of no avail and have no such legal implication which have been unnecessarily given much of importance for the purpose. With the above submission, he contends that the finding of the trial court on issue no. 5 is liable to be set aside and accordingly, the preliminary decree has to be passed with the unchallenged answer on issue no. 6 and consequential to the answer to the issue no.5 as above keeping the purchased property out of the purview of partition. 10. Learned counsel for the respondent no. 1 while supporting the finding of the trial court on issue nos. 6 and consequential to the answer to the issue no.5 as above keeping the purchased property out of the purview of partition. 10. Learned counsel for the respondent no. 1 while supporting the finding of the trial court on issue nos. 5 contends that the same has been returned by the trial court upon proper appreciation of evidence both oral and documentary as available on record, keeping in view all the relevant factors and circumstances which have emanated from the evidence for deciding the said issue. It is submitted that the evidence on record are overwhelming to show that the sale deed Ext. J which is said to have been executed by Prasanna in favour of his daughter Saraswati, the defendant no. 3, is not even worth the paper written on. He further submits that the evidence on record are at galore to show that it had never been acted upon at any point of time and had been created by adopting fraudulent means and resorting to such practise with an intention to grab the property by depriving the plaintiff of the same for the reason that he is the son through the second wife. He also submits that the subsequent purchasers from Saraswati have acquired absolutely no right, title and interest over their respective purchased property by virtue of the sale deeds which are said to have been executed by Saraswati in their favour and they have never remained in possession; more-so when it was never in possession of their vendor i.e. the defendant no.3, there was no even the occasion for her to deliver possession of those so called sold land to the so called purchasers. While submitting that the finding that the land described in lot no. 3 of ‘Kha’ schedule is the self-acquired property of defendant no. 1 having not been called in question, there is no scope to adjudicate upon the same again, he also submits that in view of the documentary and oral evidence on record the answer rendered on that issue is unassailable. 11. Admittedly, the property over which these defendants who are the appellants have laid their claim as purchasers from defendant no.3, namely, Saraswati and the property had come to the hands of Prasanna Kumar Giri, the father of the plaintiff, defendant nos. 1 to 5 and the husband of defendant no.6. 11. Admittedly, the property over which these defendants who are the appellants have laid their claim as purchasers from defendant no.3, namely, Saraswati and the property had come to the hands of Prasanna Kumar Giri, the father of the plaintiff, defendant nos. 1 to 5 and the husband of defendant no.6. These defendants claim is that such property being the self-acquired property of Prasanna and being not the joint family property, the sale deeds executed by Prasanna cannot be called in question by the plaintiff in this suit filed. The plaintiff’s claim is that the property described in schedule ‘Ga’ of the plaint said to have been sold to defendant no. 3 was not the self-acquired property of Prasanna. In the absence of any evidence on record in clear terms on the score of acquisition of the said property by Prasanna on his own and upon consideration of the evidence on record, the trial court has found to have concluded that the said property said to have been alienated by Prasanna in favour of defendant no. 3 was the ancestral property of Prasanna in his hands. In this connection, the defendant no.1 examined on behalf of contesting defendants has admitted the property to be the ancestral property and as such their joint family property. Defendant no. 20 examined as D.W. 2 has also stated in that light. The plaintiff in his evidence has stated on oath that there was a partition between his father and other brothers and property described in lot no. 1 including schedule ‘Ga’ of the plaint had fallen to the share of his father Prasanna and that partition had been effected by the registered deed of partition way back in the year 1957. Other witnesses examined on behalf of the plaintiff have supported the case that such other property is the ancestral property of Prasanna. In view of all these, this Court finds itself in agreement with the finding of the trial court that the property which defendant no.3 claims to have purchased and over which these defendant-appellants assert their right by virtue of their purchase from the defendant no. 3 was the ancestral property in the hands of Prasanna. 12. Now the question arises as to whether Prasanna had actually sold said ancestral property to defendant no. 3 under Ext. J or not. This will give the answer directly as to whether the defendant no. 3 was the ancestral property in the hands of Prasanna. 12. Now the question arises as to whether Prasanna had actually sold said ancestral property to defendant no. 3 under Ext. J or not. This will give the answer directly as to whether the defendant no. 3 has been clothed with the title in respect of the land covered under the sale deed in her favour. Evidence go to show that the plaintiff was a baby of barely three months old when the sale deed had come into being as is evident from Ext. 1. Therefore, the trial court has rightly taken the view that the plaintiff himself cannot produce direct evidence impeaching the said document or in showing the process in which it has finally come into being. The plaintiff has taken the pain of first showing that the consideration as indicated in the said sale deed under Ext. J for the sold land is grossly inadequate. He has proved through P.W. 2 two sale deeds, Exts. 4 and 5 concerning the sale of land situated nearby. One is of the year 1960 and the other one is of the year 1962. In the first sale deed the acrage involved is Ac.1.32 dec. and in the second Ac.2.43 1/2 dec. The consideration which finds mention in Exts. 4 and 5 is Rs.1320/- and Rs.3,000/- respectively. Three other sale deeds have been proved and those have been admitted in evidence and marked as Exts. 6 to 8. Viewing the consideration as indicated in the sale deeds which cannot be said to have been created for the purpose in view of their age and taking judicial notice of the general tendency even to show lesser consideration, under no circumstance the market value of the land in that area can be said to be less than Rs.1,000/-per acre. The evidence let in by the defendants on that score being taken into account in their proper perspective, this Court is not in a position to accept that the adequate market value of the land said to have been sold to defendant no. 3 was Rs.1,000/- for that entire Ac.3.15 dec. It is clear from evidence that the consideration as stated is grossly inadequate. So the trial courts finding on that score gets the approval of this Court on analysis of evidence. 3 was Rs.1,000/- for that entire Ac.3.15 dec. It is clear from evidence that the consideration as stated is grossly inadequate. So the trial courts finding on that score gets the approval of this Court on analysis of evidence. This is a suspicious circumstance that when Prasanna intended to sell it is obviously being in need of money so how it was at such grossly low consideration. 13. The next circumstance is regarding the fact as to if the sale has actually been acted upon or not or it was merely a transaction in pen and paper. This circumstance is certainly important. If defendant no. 3 has purchased the property and has sold to these defendant-appellants, they are supposed to be in possession of the same from the beginning being so delivered by the defendant no.3, the vendor. The so-called sale deed has been executed on 25.7.60. The executants-vendor Prasanna died in the year 1963 and the document in question was with him i.e. the vendor all along and it is said that only a few days before his death, he had given it to Saraswati. It is highly unbelievable. Moreso there is no evidence that defendant no.3 had taken the sale deed from the registration office and then had given to Prasanna and in view of that the general presumption remains that it is the Prasanna who had received it without making any endorsement in the ticket for receipt of the sale deed by defendant no.3. So the vendee was not custody of original document since the date of its registration which she was supposed to have. This defendant no. 3 has not come to the witness box to explain the above suspicious circumstance and rather, has withheld herself for being examined in the suit as a witness either on her behalf or on behalf of the purchasers from her. There is also no evidence from the lips of defendant no. 3 that since the date of sale, she was in possession of the so-called purchased land being delivered with the same by her vendor. Nor, there is any evidence from her lips to show that she had delivered possession of the properties to the respective vendees in accordance with the sale deeds which she had executed in their favour. 3 that since the date of sale, she was in possession of the so-called purchased land being delivered with the same by her vendor. Nor, there is any evidence from her lips to show that she had delivered possession of the properties to the respective vendees in accordance with the sale deeds which she had executed in their favour. The plaintiff examined as P.W. 1 has stated in clear terms that father was in possession of the entire property till his death. The evidence of P.W. 2 is that Saraswati never possessed the land in question. P.W. 3 who is a distant relation of Saraswati has also deposed in the same vain. D.W. 3 has deposed that Prasanna was in possession of the entire land and thereafter the possession has remained with all his sons. D.W. 4 has again supported the same in clear terms stating that Prasanna was in possession of that Ac.3.15 dec. of land. Scanning the evidence of all the witnesses, it is seen that these defendants have failed to prove that pursuant to the so-called purchase land by Saraswati from her father Prasanna, there had taken place the delivery of possession and Saraswati possessed till she had sold those to the respective defendants. With the admitted relationship of the vendor and vendee as father-daughter; the vendee not even coming to depose in court to sustain her so called purchase and subsequent sales made by her; meager consideration shown in the sale deed, Ext. J and there being no acceptable evidence as regards delivery of possession when taken together are enough to record a finding that the sale transaction under Ext. J is of no legal validity being a nominal and sham transaction and never so intended for the purpose of clothing the title over the property on the vendee so as to her benefit and enjoyment as per her wish and desire. 14. The trial court has further found that such property being the coparcenery property, the purchaser have failed to establish the fact that there was any legal necessity existing at the time of so-called sale which is said to have been made by Prasanna in favour of his own daughter. 14. The trial court has further found that such property being the coparcenery property, the purchaser have failed to establish the fact that there was any legal necessity existing at the time of so-called sale which is said to have been made by Prasanna in favour of his own daughter. The court below has rightly taken the settled position of law into account that in such alienation, the beneficiary shoulders the burden of proof on the said aspect so as to sustain the purchase and deprive the other coperceners of their right over the same. It is settled position of law that mere recitals with regard to legal necessity remaining in the deed does not suffice the purpose and it is a piece of corroborative evidence only. The first sale being in favour of Sarawati, it was for her to establish the above fact which she has failed to do; neither she has filed the written statement nor has come to depose. The trial court thus is right in drawing adverse inference for the same. Even the subsequent purchasers of land from Saraswati i.e. D.Ws. 7 to 9 and these appellants being under legal obligation have failed to lead any satisfactory evidence on that score. In view of the aforesaid discussion of evidence on record, I find no such justification for recording a dissenting note on the finding of the trial court that sale deed Ext. J dated 25.7.60 standing in favour of defendant no. 3 to be having no value in the eye of law in clothing her with title in respect of the land in question also on that score. 15. Having arrived at the findings as aforesaid in so far as the base transaction for sale is concerned i.e. the registered sale deed said to have been executed by Prasanna in favour of his daughter, that it is a nominal and sham one, the subsequent transactions said to have been made by defendant no.3 founded upon that base transaction as standing in favour of defendant no.3 thus receive no legal seal so as to have any play in the field. With the above findings remaining undisturbed and when the finding of the trial court on issue no. 6 that the said property in lot no. 3 of ‘Kha’ schedule is the property of defendant no. With the above findings remaining undisturbed and when the finding of the trial court on issue no. 6 that the said property in lot no. 3 of ‘Kha’ schedule is the property of defendant no. 1 stares at the face; the result of the suit in passing a preliminary decree for partition in respect of the properties described in lot nos. 1 and 2 of ‘Kha’ schedule with the entitlement of the shares as stated receives the seal of confirmation. 16. In the result, the appeal stands dismissed. In the facts and circumstances no order as to cost is passed.