JUDGMENT : The appellant is the second defendant in O.S.No.160/1995. The suit in question was filed by the plaintiffs seeking partition and separate possession of their share in respect of the suit schedule properties. The trial Court by its judgment and decree dated 27.01.2005 had held that the plaintiffs are entitled to a share in the house bearing No.10-34 in the manner as indicated therein. It was further held that defendant No.1b and defendant No.2 are entitled to 1/8th share each in the house bearing No.10-34. The plaintiffs claiming to be aggrieved by the allotment of share to defendants 1 and 2 had preferred the appeal in R.A. No. 11/2005. The Lower Appellate Court by its judgment dated 19.01.2006 has altered the share whereby the appellant herein who is the second defendant has been denied the right to the property. It is in that view the second defendant is before this Court in this second appeal. 2. This Court while admitting the appeal on 05.06.2008 had framed the following substantial questions of law: “(i) The 1st defendant has sold one of the item of the property in favour of the 2nd defendant. The 2nd defendant being the alienee from the 1st defendant is entitled to the allotment of the property purchased by him in equity in view of the share of his alienor and therefore the allotment of share as made by the first appellate Court is unsustainable in law? (ii) Whether in law the share alienated by the coparcener could be partitioned unless the alienation is found to be void. But the alienation is not void in law. the 2nd defendant being the purchaser is entitled to retain the property purchased by him in lieu of his share from his alienor? (iii) Whether the lower appellate Court was justified in declining to grant any shares to the daughters in view of the change in the law?” 3. The relationship between the parties is not in dispute inasmuch as plaintiff No.1 is the son and plaintiff No.2 is the wife of defendant No.1. Defendant No.2 is the purchaser of one of the items of the property bearing house No.10-33. The claim of the plaintiffs is that both the house properties bearing No.10-33 and 10-34 are the joint family properties of the plaintiffs and the first defendant and as such they are entitled to a share. Defendant No.2 is the purchaser of one of the items of the property bearing house No.10-33. The claim of the plaintiffs is that both the house properties bearing No.10-33 and 10-34 are the joint family properties of the plaintiffs and the first defendant and as such they are entitled to a share. The property bearing house No.10-33 had been sold by the first defendant through the document dated 02.09.1994. The defendants in that view had sought to contend that the sale as made is justified in law as it was for the legal necessity. 4. In the light of the rival contentions the trial Court framed as many as 13 issues initially and 3 additional issues for its consideration. Plaintiff No.1 examined himself as PW-1 and also examined two witnesses as PWs-2 and 3. The documents at Exs.P1 to P5 were marked on their behalf. Defendant No.1b examined herself as DW-1 and original defendant No.1 was examined as DW-2 prior to death. A witness was examined as DW-3 and documents at Exs.D1 to D9 were relied upon. 5. The trial Court after analysing the evidence before it has arrived at its conclusion that the properties in question are the joint family properties. While assigning shares in the said property, insofar as the property bearing house No.10-34 the trial Court has granted the share as per the entitlement of the plaintiffs. However, insofar as the property bearing house No.10-33 measuring 15.6 feet x 23.6 feet consisting of two rooms, had taken into consideration the document at Ex.P5 which was also produced as Ex.D6. Under the said document the defendant No.1 had sold the property to defendant No.2. In that regard the case as put forth on behalf of the defendants that the first defendant was not being maintained by the first plaintiff and in that light the first defendant had filed a case in Crl.Misc.No.207/1994 seeking for maintenance and the order passed therein which was at Ex.D11 was taken into consideration. In that light taking note of the fact that the maintenance as ordered therein has not been paid and in that light the first defendant in order to maintain himself had sold the property to the defendant No.2, had arrived at the conclusion that the said sale is for legal necessity and therefore the said property would not be available for the purpose of partition. It is in that light, only the property bearing house No.10-34 was taken into consideration for assigning the shares as has been done therein. 6. The Lower Appellate Court while re-considering the material on record has stated that a contention that the property was sold as a legal necessity for the purpose of maintenance cannot be accepted since it was for the first defendant to recover the maintenance if the same had not been paid. In the present facts it is to be noticed that the first defendant had in fact filed a proceeding seeking for maintenance and an order had been passed therein. In normal circumstance when such maintenance is not paid there can also be a charge on the property and thereafter the recovery is to be made in the execution proceedings. In the present facts, apart from the recovery that could be resorted by the first defendant against the first plaintiff by executing the said order since the first defendant was in control of the property through which the first defendant could have maintained himself, he has chosen the option by selling one of the properties for the said purpose. At that point if there was a partition and in that light when the entitlement of the first defendant was sold by him to the second defendant for the purpose of maintenance and the other property was available for the benefit of the plaintiffs, the conclusion as reached by the trial Court at the first instance was justified in the instant facts and circumstances as even otherwise ultimately when a partition was to be effected and a portion of the property which was the joint family property had been sold by one of the co-owners who had a right over the property, in any event in the process of final decree proceedings, there would have been an equitable allotment of such property in favour of the vendor of such property. 7. 7. Therefore, if all these aspects of the matter are kept in view and in that light when it is seen that out of two house properties one of the property was sold by the first defendant and the first defendant had sought to justify such action as being for the purpose of his maintenance and therefore for legal necessity, this aspect of the matter ought to have been kept in view by the Lower Appellate Court while arriving at its conclusion. 8. In that view of the matter, the substantial questions of law raised herein are answered in favour of the appellant. The judgment and decree dated 19.01.2006 passed in R.A. No. 11 of 2005 is set aside. The judgment and decree dated 27.01.2005 passed in O.S. No. 160 of 1995 is restored. The appeal is allowed in the above terms. No costs.