ORDER : Goutam Bhaduri, J. 1. Heard. 2. The instant appeal is filed against judgment and decree dated 30.10.2018 passed by 1st Additional District Judge, Durg (CG) in Civil Suit No.123-A/2016, whereby the suit filed for declaration, injunction and cancellation of the sale deed dated 11.7.2013 (Ex-P/1) was dismissed. The plaintiffs/appellants filed a suit claiming for cancellation of the sale deed dated 11.7.2013 (Ex-P/1) executed by Gulabchand Dubey/defendant No.2 in favour of Smt. Namita Baidhmutha/defendant No.1 to be void one. To appreciate the rights, the relation of parties would be necessary. Description of the parties i.e. the plaintiffs/appellants and defendant No.2 (since deceased) shown herein as under:- Laxminath Dubey (Great grand Father) Yogendra nath Dubey (Grand Father) Gulabchand Respondent No.2 Yugalkishore Daulat Prasad Vaman Sharma (A-1 Son) Namrata Sharma (A-2 Daughter) Naina Tiwari (A-3 Daughter) 3. The plaintiffs/appellants contended that without any legal necessity, Gulabchand Dubey, father of the plaintiffs/appellants has sold the following khasra Nos. i.e. Khasra Nos.292/2 area 0.148 hectare, 328/2 area 0.103 hectare, 345/2 area 0.054 hectare and 370/2 area 0.050 total area 0.355 hectare by a registered sale deed dated 11.7.2013, they be declared void while in respect of one Khasra No.202/2, declaration and injunction was sought for. The plaintiffs contended that Vaman Sharma, who was born on 30.8.2001 and Ku. Namrata Sharma, born on 17.11.1997 and Smt. Naina born on 11.02.1992, have joint share in respect of the property as the property fell to the share of Gulabchand through their ancestors thereby the nucleus of devolution is not self acquired. It is contended that despite the fact that the plaintiffs have vested right in the property, Gulabchand exclusively without any legal necessity sold the property to the respondent No.1/defendant No.1, which requires to be cancelled and apart from it, in respect of Khasra No.202/2, declaration and injunction order may be passed. 4. Defendant No.1, the purchaser, admitted the relation of the plaintiffs and defendant No.2, the father of the plaintiffs from whom she purchased the property. It was stated that after partition of the ancestral property, Gulabchand, the seller, got the property and was recorded as a sole and exclusive owner and he was enjoying the same. Consequently, it was his separate individual property which was purchased by her by sale deed dated 11.7.2013. It was stated that after partition of the ancestral property, Gulabchand, the seller, got the property and was recorded as a sole and exclusive owner and he was enjoying the same. Consequently, it was his separate individual property which was purchased by her by sale deed dated 11.7.2013. The defendant No.1 further contended that the property being separate and individual, the plaintiffs could not have lay any claim over the property and Gulabchand was entitled to sell the property. 5. The learned Court of Additional District Judge, framed six issues and refused to annul the sale deed dated 11.7.2013 and also held that subject property was not proved to be the ancestral property in the hands of defendant No.2 and eventually dismissed the suit, hence, this appeal. 6. Learned counsel for the appellants would submit that the learned trial Court has completely misdirected itself to see the pleading in as much as the pleading categorically contains the admission that subject property was not a self acquired property of Gulabchand. She would further submit that when the property passed through from the ancestral nucleus and the partition is effected further when son and daughters are alive, in such case the property would be treated as coparcenary property and coparceners would get the share in it. She placed reliance in the matter of Rohit Chauhan vs. Surinder Singh and Others (2013) 9 SCC 419 to submit that partitioned share of ancestral property held by single person again would become coparcenary property the moment child is born to such holder of the partitioned share of the ancestral property. She would further submit that in the sale deed though the description of the seller is shown as Karta, but body of the sale deed clearly says that the sale was for his own purpose which would not match to the requirement of sale by a Karta for legal necessity as per the Hindu Law. In a result, the sale would fall. Reliance is placed in the matter of Beereddy Dasaratharami Reddy vs. V. Manjunath and Another, 2021 SCC Online SC 1236. She would further submit that the judgment and decree passed by the learned Court below is liable to be set aside. 7. No representation is made on behalf of respondent No.1/purchaser. Respondent No.2, the father has died during the pendency of the appeal and his name was deleted. Respondent No.3/State is represented. 8. She would further submit that the judgment and decree passed by the learned Court below is liable to be set aside. 7. No representation is made on behalf of respondent No.1/purchaser. Respondent No.2, the father has died during the pendency of the appeal and his name was deleted. Respondent No.3/State is represented. 8. We have heard learned counsel for the parties present at length and perused the record. 9. Perusal of the order sheets of the learned Court below shows that respondent No.2, the father who had executed the sale had proceeded ex-parte and mainly the contest was made by defendant No.1/purchaser. 10. The plaint allegations contain that subject of the sale property devolved on defendant No.2, through his father Yogendranath Dubey, who is the grand-father of the plaintiffs/appellants. In reply to the plaint averments, the relationship of defendant No.2 Gulabchand Dubey with Yogendranath Dubey was admitted and it was further stated that Gulabchand Dubey had two other brothers namely; Yugal Kishroe and Daulat Prasad. The reply further contains the fact that after the death of Yogendranath Dubey, his three sons namely; Gulabchand, Yugal Kishroe and Daulat Prasad partitioned the property left by Yogendranath Dubey through his ancestor, whereby defendant No.2 Gulabchand Dubey got the share at Village Kasaridih Khasra Nos.202/2, 292/2, 328/2, 345/2 & 370/2, total admeasuring area 0.384 hectare. After the partition, three brothers got their names separated in the revenue records and out of that property which fell to the share of defendant No.2 Gulabchand, he sold Khasra Nos.292/2 area 0.148 hectare, 328/2 area 0.103 hectare, 345/2 area 0.054 hectare and 370/2 area 0.050 total area 0.355 hectare in favour of defendant No.1. 11. According to Mitakshara School of Hindu Laws, all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born. According to Mitakshara School of Hindu Laws, all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born. The incidents of coparcenership under the Mitakshara School of Law are : (1) The lineal male descendants of a person up to the third generation, acquire on birth, ownership in the ancestral properties of such person; (Now with amendment in 2005 the daughters) (2) that such descendants can at any time work out their rights by asking for partition; (3) that till partition each member has got ownership extending over the entire property canjointly with the rest; (4) that as a result of such co-ownership the possession and enjoyment of the properties is common; (5) that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners; (6) that the interest of the deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara school is a creature of law and cannot arise by act of the parties except insofar that on adoption, the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter. 12. The learned trial Court has completely misapplied such principle. The allegations of the plaint would show that the plaintiffs’ claim to be the coparceners and even the facts would suggest that even on the date of partition of the property in between Gulabchand Dubey and his two brothers Yugal Kishroe and Daulat Prasad, plaintiffs namely; Vaman Sharma, who were already born on 30.8.2001(Ex-P/5); Ku. Namrata Sharma, was born on 17.11.1997 (Ex-P/6); and Smt. Naina, who was born on 13.02.1992 (Ex-P/7). Therefore, they became the coparcerners for the reason that after the amendment of the year 2005 to the Hindu Succession Act, 1956, the daughters also got their rights. 13. Namrata Sharma, was born on 17.11.1997 (Ex-P/6); and Smt. Naina, who was born on 13.02.1992 (Ex-P/7). Therefore, they became the coparcerners for the reason that after the amendment of the year 2005 to the Hindu Succession Act, 1956, the daughters also got their rights. 13. Irrespective of those facts the contention of the respondents that when the property has passed on to Gulabchand by way of partition, nucleus of which arises through Lakshmikant Dubey then to Yogendra Dubey on partition of ancestral property, even otherwise, the property falling in the share of single coparcener would be treated as his separate property vis-a-vis his relation and he would be competent to alienate with it in any manner, but, when the son is born (after the 2005 Amendment to Hindu Succession Act, 1956, also a daughter), property in his hands would be treated coparcenary property in which the son and the daughters would be coparceners, who would get the shares. Thereby even if the contention of the defendant No.1 is accepted, partitioned share of the ancestral property held by a single person would again become coparcenery property as soon as a child is born to the share holder of the partitioned share of the ancestor property. 14. This like of issue came up before the Supreme Court in the matter of Rohit Chauhan (supra), wherein it has held as under : “11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener. XXX XXX XXX XXX XXX XXX XXX XXX 14. A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which Defendant 2 got on partition was an ancestral property and till the birth of the plaintiff he was the sole surviving coparcener but the moment plaintiff was born, he got a share in the father's property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of Defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth Defendant 2 could have alienated the property only as karta for legal necessity. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out their remedies in appropriate proceeding.” 15. Therefore, applying the aforesaid principle in the facts of the present case, plaintiffs namely; Vaman Sharma, Ku. Namrata Sharma and Smt. Naina, who are the son and the daughters of deceased Gulabchand Dubey/defendant No.2 would be the coparceners to the extent of the property which fell into the share of Gulabchand even by way of partition by separation of share of ancestors. 16. Now turning back to the sale which was executed, the sale deed would show that it was executed by Gulabchand in his individual capacity for the reason for his personal need to raise money. The Supreme Court in the matter of the Beereddy (Supra) has examined the position of Hindu law evaluating the legal necessity. The legal necessity has been enunciated as under : 7. Elucidating the position in Hindu law, this Court in Kehar Singh (D) through Legal Representatives v. Nachittar Kaur, has referred to Mulla on Hindu Law and the concept of legal necessity to observe thus: “20. Mulla in his classic work Hindu Law while dealing with the right of a father to alienate any ancestral property said in Article 254, which reads as under: “Article 254 254. Alienation by father.—A Hindu father as such has special powers of alienating coparcenary property, which no other coparcener has. In the exercise of these powers he may: (1) make a gift of ancestral movable property to the extent mentioned in Article 223, and even of ancestral immovable property to the extent mentioned in Article 224; (2) sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and great-grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt, and was not incurred for immoral or illegal purposes (Article 294).” 21. What is legal necessity was also succinctly said by Mulla in Article 241, which reads as under: “Article 241 241. What is legal necessity was also succinctly said by Mulla in Article 241, which reads as under: “Article 241 241. What is legal necessity.—The following have been held to be family necessities within the meaning of Article 240: (a) payment of government revenue and of debts which are payable out of the family property; (b) maintenance of coparceners and of the members of their families; (c) marriage expenses of male coparceners, and of the daughters of coparceners; (d) performance of the necessary funeral or family ceremonies; (e) costs of necessary litigation in recovering or preserving the estate; (f) costs of defending the head of the joint family or any other member against a serious criminal charge; (g) payment of debts incurred for family business or other necessary purpose. In the case of a manager other than a father, it is not enough to show merely that the debt is a pre-existing debt; The above are not the only indices for concluding as to whether the alienation was indeed for legal necessity, nor can the enumeration of criterion for establishing legal necessity be copious or even predictable. It must therefore depend on the facts of each case. When, therefore, property is sold in order to fulfil tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity.” (See Hindu Law by Mulla “22nd Edition”) xxxxxxxxx 26. Once the factum of existence of legal necessity stood proved, then, in our view, no co-coparcener (son) has a right to challenge the sale made by the karta of his family. The plaintiff being a son was one of the co-coparceners along with his father Pritam Singh. He had no right to challenge such sale in the light of findings of legal necessity being recorded against him. It was more so when the plaintiff failed to prove by any evidence that there was no legal necessity for sale of the suit land or that the evidence adduced by the defendants to prove the factum of existence of legal necessity was either insufficient or irrelevant or no evidence at all.” 17. Perusal of the sale deed in the context when compared to the principle laid down in the Hindu law do not synchronize or match to insulate that the sale was for legal necessity. Perusal of the sale deed in the context when compared to the principle laid down in the Hindu law do not synchronize or match to insulate that the sale was for legal necessity. In a result, when the sale deed appears to be for a personal need which envelop the share of the coparcenrs, the same cannot be sustained as a whole. 18. It would be apt to say that sale deed though was executed by taking into the sweep share of the coparceners, the seller also had a vested right to the extend of 1/4th share. If the sale is executed in excess of the power to transfer, a distinction can be drawn in between void and voidable sale as it cannot be stated that defendant No.2, since deceased, had no right to sell his part of the property. The Hon’ble Supreme Court in the matter of Murugan Vs. Kesava Gounder (dead) through legal representatives (2019) 20 SCC 633 has followed the principle and quoted excerpts of Salmonds on Jurisprudence, 12th Edn., at Para 15 which reads as thus : 15. Salmonds on jurisprudence, 12th Edn., has noticed the distinction between valid, void and voidable in the following passage: “…… A valid agreement is one which is fully operative in accordance with the intent of parties. A void agreement is one which entirely fails to receive legal recognition or santion, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute.” Therefore, a distinction can be made where a document is wholly or partially invalid so that it can be disregarded by the Court or authority. Consequently, the principle followed by the Supreme court in the matter of Gorakh Nath Dube v. Hari Narain Singh (1973) 2 SCC 535 , an alienation made by defendant No.2 in excess of the power to transfer would be, to the extent to the power would be invalid. In a result, the sale deed dated 11.7.2013. (Ex-P/1) in excess of 1/4th share in the property sold would stand invalid. 19. With respect to declaration and injunction, in view of the foregoing discussion above, we hold that the plaintiffs are entitled to protect their rights which is accrued to them by way of coparceners in the joint family property. In a result, the sale deed dated 11.7.2013. (Ex-P/1) in excess of 1/4th share in the property sold would stand invalid. 19. With respect to declaration and injunction, in view of the foregoing discussion above, we hold that the plaintiffs are entitled to protect their rights which is accrued to them by way of coparceners in the joint family property. Accordingly, we are inclined to pass the decree in favour of the plaintiffs to the above extent and also pass an order of injunction that with respect to the share of the property held by the plaintiffs, the defendant No.1 or her agent shall be restrained to interfere or disturb the possession of plaintiffs. 20. As an upshot, the appeal is allowed to the above extent leaving the parties to bear their own costs. 21. A decree be drawn accordingly.