JUDGMENT 1. Captioned second appeal is filed by unsuccessful defendant No.2, who is questioning concurrent judgment and decree of the courts below wherein respondent No.1- plaintiff is granted half share in item No.35/1 property. Respondent No.1-plaintiff filed a suit for partition and separate possession in O.S.No.56/2002. The relevant genealogy of the family is as under: Shiddappa (Dead) Yallavva Basappa Guddappa (Deft.No.1) (Plaintiff) 2. The respondent No.1-plaintiff specifically contended that schedule 1(A) properties, which is agricultural lands bearing survey No.57/3 measuring 1 acre 23 guntas and survey no.56/1 measuring 3 acre 20 guntas are joint family ancestral properties. After the death of plaintiff's father Shiddappa, defendant No.1 i.e. vendor of appellant/defendant No.2, was managing the family affairs as a Karta. It was further contended that suit lands at schedule 1(A) were jointly cultivated by plaintiff and defendant No.1. It was specifically contended that out of the income derived from the ancestral properties and also out of joint earnings, suit schedule 1(B) property bearing Survey no.35/1 was purchased in the name of defendant No.1. The respondent-plaintiff has specifically pleaded in the plaint that the registered sale deed executed by defendant No.1 in favour of present appellant-defendant No.2 is a nominal sale deed and same would not give any right and title either to defendant No.1 or in favour of defendant No.2. On these set of pleadings, respondent No.1-plaintiff filed a suit for partition and separate possession. 3. On receipt of summons, the present appellant, who was arrayed as defendant No.2, contested the proceedings. The present appellant has stoutly denied the entire averments made in the plaint. The allegation that the sale deed in the name of defendant No.1, in the capacity of manager, was seriously disputed by the present appellant herein. The present appellant, who is purchaser has specifically contended that defendant No.1 has purchased item No.1(B) property out of his independent earnings for valuable sale consideration and therefore, it is self acquired property of defendant No.1. In the event, if Court comes to a conclusion that plaintiff is entitled for share in suit item No.1(B) property, the appellant is entitled for equitable portion of allotment of suit item No.1(B) land. In the event, if Court comes to a conclusion that plaintiff is entitled for share in suit item No.1(B) property, the appellant is entitled for equitable portion of allotment of suit item No.1(B) land. The Trial Court, having assessed the oral and documentary evidence, answered issue No.1 and 2 in affirmative and recorded a categorical finding that respondent No.1-plaintiff has succeeded in establishing that the suit schedule properties are joint family ancestral properties comprising plaintiff and defendant No.1 and further held that the sale deed executed in favour of appellant-defendant No.2 by deceased defendant No.1 in respect of agricultural land bearing Survey No.35/1 is not binding on plaintiff's half share in the suit schedule property. 4. Feeling aggrieved by the judgment and decree of the Trial Court, the present appellant preferred an appeal before the First Appellate Court. The First Appellate Court having independently assessed the ocular and documentary evidence has referred to the recitals in Ex.D6 and Ex.D7, which are two sale deeds executed by deceased defendant No.1 in favour of appellant- defendant No.2, wherein defendant No.1 has sold half share on 26/4/1985 as per Ex.D6 and remaining half portion was also sold by him in favour of defendant No.2 on 19/11/1985 as per Ex.D7. The First Appellate Court having meticulously examined Ex.D6 found that defendant No.1 while alienating half portion in Survey No.35/1 has admitted in an unequivocal terms that he is selling his half share in the suit schedule property. Therefore, by placing reliance on Ex.D6, the First Appellate Court has also concurred with the findings of the Trial Court that the land bearing Survey No.35/1 was purchased in the name of defendant No.1, who was acting as a manager of the family and was looking after the family affairs. The First Appellate Court has also dealt with the ocular evidence let in by both the parties. The First Appellate Court on reassessing the entire evidence on record has also negatived the contention of the appellant herein that survey No.35/1 was purchased by deceased defendant No.1 only after partition between both the brothers. This contention was also negatived and thereby the First Appellate Court also concurred with the findings recorded by the Trial Court. The First Appellate Court on reassessing the entire evidence on record has also negatived the contention of the appellant herein that survey No.35/1 was purchased by deceased defendant No.1 only after partition between both the brothers. This contention was also negatived and thereby the First Appellate Court also concurred with the findings recorded by the Trial Court. Both the Courts have concurrently held that item No.1(B) property bearing Survey No.35/1 is also joint family ancestral property and the said property was purchased in the name of defendant No.1 by investing joint family corps and therefore, both the Courts have concurrently held that item No.1(B) property bearing Survey No.35/1 is joint family ancestral property. It is against this concurrent judgment of the courts below the present appeal came to be filed and the same was admitted by this Court on 2/6/2010 by formulating following substantial questions of law: 1. Whether the Court below is justified in decreeing the half share in respect of schedule 1(B) property i.e. Survey No.35/1 which is purchased by the appellant in the year 1985? 2. Whether the Court below is justified in decreeing the suit and declaring that he respondents are entitled for the share in property bearing Survey No.35/1 without there being deceleration that sale deed is null and void? 5. Learned counsel appearing for appellant reiterating the grounds urged in the appeal and by way of answer to the substantial questions framed by this Court has vehemently argued and contended that the appellant-defendant No.2 has succeeded in eliciting in cross-examination of plaintiff that the vendor i.e. defendant No.1 had independent earning. Relying on this part of cross-examination, he would vehemently argue and contend before this Court that substantial question of law framed at serial No.1 needs to be answered in negative by holding that the plaintiff is not entitled for half share in Survey No.35/1. 6. To buttress his arguments, he would place reliance on the judgment rendered by the Privy Council in the case of Ramcoomar Koondoo and another v. John and Maria McQueen1 and the subsequent judgment in the case of Mohammad Khan v. Mohammad Ibrahim and another2. 6. To buttress his arguments, he would place reliance on the judgment rendered by the Privy Council in the case of Ramcoomar Koondoo and another v. John and Maria McQueen1 and the subsequent judgment in the case of Mohammad Khan v. Mohammad Ibrahim and another2. By placing reliance on the said judgment rendered by the Privy Council, he would contend that appellant-defendant No.2 had made all possible enquiries and having assured himself that the suit schedule property is absolute property of defendant No.1 has proceeded to purchase survey No.35/1 under two separate sale deeds. Therefore, he would submit to this Court that Sec. 41 of the Transfer of Property Act would come to the aid of the appellant-defendant No.2 and therefore, he would request this Court to answer substantial question of law framed at serial No.1 in the negative and dismiss the suit filed by respondent-plaintiff insofar as item No.1(B) bearing survey No.35/1 is concerned. Bengal Law Reports Vol.XI, Page 46 ILR (1904) 26 All 490 7. Per contra, learned counsel appearing for respondent-plaintiff reiterating the arguments canvassed by the counsel appearing for appellant would straightaway take this Court to the recitals in Ex.D6. By placing reliance on Ex.D6, he would bring to the notice of this Court that defendant No.1 at an undisputed point of time admitted unequivocally that he is selling half portion in survey No.35/1. Therefore, if deceased defendant No.1 is bound by recitals in the sale deed, then the appellant, who is a transferee is also bound by the recitals. He further contended that any contra statements and evidence, which is contrary to recitals in the sale deed stands excluded and same is not at all admissible. He would then take this Court to paragraph 7 of the cross- examination of PW1. By placing reliance on paragraph 7 of the cross-examination of PW1, he would make an attempt to demonstrate before this Court that appellant- defendant No.2 has virtually admitted the nature of property by making suggestions which can be gathered from paragraph 7 of the cross-examination. On these set of defence, he would submit to this Court that the substantial questions of law framed by this Court needs to be answered in affirmative. 8. Heard the learned counsel for the appellant and the learned counsel appearing for respondent. On these set of defence, he would submit to this Court that the substantial questions of law framed by this Court needs to be answered in affirmative. 8. Heard the learned counsel for the appellant and the learned counsel appearing for respondent. Perused the judgment passed by the Courts below and I have also bestowed my anxious consideration to the records of the courts below. 9. The present case revolves within a narrow compass. Admittedly, the suit schedule property at item No.1(A) is ancestral property. There is no serious dispute that after the death of Shiddappa, his eldest son namely Basappa, who is vendor of appellant herein was acting as a manager of the family. This fact is not at all in dispute. If these significant details are taken into consideration, then this Court has to examine as to whether the purchase made by defendant No.1 in respect of item No.1(B) is concerned, is his self acquired property or it is an ancestral property. It is a trite law that where a Karta of the family purchases a property, the initial burden is always on the Karta to prove that he had independent earnings and the acquisition is not through the yield of joint family corpus. But the recital in the sale deed as per Ex.D6 in favour of appellant by defendant No.1 would virtually clinch the issue. In the sale deed dtd. 26/4/1985 as per Ex.D6, defendant No.1 has admitted in unequivocal terms that he is selling half joint portion in the suit schedule property. This statement made by deceased defendant No.1 at an undisputed point of time would clinch the issue and therefore, neither defendant No.1 could have retracted from this statement nor the present appellant, who is claiming under defendant No.1 could have retracted from the said statement. Any contra evidence, pleadings contrary to recitals in Ex.D6 stand excluded in terms of sec. 90 and 91 of the Evidence Act and same is inadmissible in evidence and therefore, these significant details are taken into consideration by both the Courts below. Even otherwise, there are several suggestions made by appellant-defendant No.2 while cross-examining plaintiff and same is forthcoming from paragraph 7. 10. On perusal of the same, what would emerge is that the possession of plaintiff over southern portion in survey No.35/1 was virtually admitted by appellant- defendant No.2. Even otherwise, there are several suggestions made by appellant-defendant No.2 while cross-examining plaintiff and same is forthcoming from paragraph 7. 10. On perusal of the same, what would emerge is that the possession of plaintiff over southern portion in survey No.35/1 was virtually admitted by appellant- defendant No.2. If the recitals in Ex.D6 are taken into consideration, the admission which is secured by appellant-defendant No.2 in regard to the fact that defendant No.1 had independent earning is of no consequence. Said admission does not go to the root of the case and it would not dislodge the plaintiff's case in the present case on hand. In that view of the matter, the substantial question of law framed at serial No.1 has to be answered in affirmative. 11. The second substantial question of law framed by this Court is squarely covered in the light of the dictum laid down by the co-ordinate bench in the case of Ganapati Santaram Bhosale v. Ramachandra Subbarao Kulkarni3 (Head Note B). If there is alienation of joint family property, non-alienating members of the family need not question the sale deed. It would be sufficient if a suit for partition and separate possession is filed. In that view of the matter, the substantial question of law framed at Sl.No.2 is also answered in affirmative. Before I part with the reasons in the present case on hand, some few subsequent developments which took place have to be taken into consideration and same warrants interference at the hands of this Court. Respondent No.1-plaintiff having filed a suit for partition ILR 1985 page 1115 and separate possession and having sought indulgence of this Court to effect partition by metes and bounds by quantifying the share of defendant No.1 has ventured in selling suit item No.1(B) properties in favour of third parties. Therefore, sec. 52 of the Transfer of Property Act would come into play and therefore, I am of the view that though this Court is not inclined to interfere with the judgment and decree passed by the Courts below, however on account of alienation by respondent No.1- plaintiff and the legal representatives of deceased defendant No.1 pending suit has virtually effected the equitable rights of appellant herein, who could have worked out remedy in final decree proceedings. Had plaintiff and legal representatives of deceased defendant No.1 not ventured into selling item No.1 properties, the present appellant could have made out a case before final decree court and to allot entire extent to the share of appellant by way of equity. It is also relevant to note that what is sold by defendant No.1 in favour of present appellant-defendant No.2 is well within his legitimate share in the suit schedule properties. Therefore, alienation made by respondent No.1-plaintiff and legal representatives of defendant No.1 will not affect the equitable rights of appellant herein. Appellant/defendant No.2 is entitled to workout his equities by way of priority. In that view of the matter, the question as to whether entire extent can be allotted to appellant-defendant No.2 has to be examined by the FDP Court and the equities are to be worked out in final decree proceedings by keeping in mind that respondent No.1 and legal representatives of defendant No.1 have sold entire extent of item No.1(B) properties. 12. Both the Courts below have held that item No.1B is also ancestral property. It was purchased with the yield of joint family funds. In co-parcenary property, it is a trite law that the co-parcener can sell his undivided share but in the event in a given set of facts, if co- parcener ventures into selling entire extent or sells a property in excess of his share, then the alienation made by one of the co-parceners would not bind the other non- alienating members in excess of legitimate share of the co-parcener, who alienates co-parcenary property. This principal is based on settled principles of Hindu Law that every co-parcener has an independent right by birth. It is a pre-existing right in the property. Therefore, any unilateral alienation would not take away the rights of non-alienating co-parcener. Therefore, in co-parcenery properties, the principles enumerated under Sec. 41 of the Transfer of Property Act have no application. The fact that a non-alienating member can only maintain a suit for partition and separate possession in the event there is alienation by other members in itself would indicate that there is no need to challenge the sale deed. In fact, it is a best cause of action for non-alienating co-parcener to simply file a suit for partition and separate possession. In fact, it is a best cause of action for non-alienating co-parcener to simply file a suit for partition and separate possession. Therefore, the principles laid down by the Privy Council in the judgment cited supra, have no application in the present case on hand. 13. With this observation, the second appeal stands dismissed and this appeal would not come in the way of appellant-defendant No.2 in working out his equitable rights in FDP Court. 14. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.