JUDGMENT Sachin Shankar Magadum, J. - The captioned second appeal is by plaintiffs assailing the judgment and decree rendered by the appellate Court wherein appellate Court has allowed the appeal filed by defendant No.2 and the plaintiffs suit seeking relief of partition and separate possession is dismissed. These divergent findings are under challenge at the instance of plaintiffs. 2. For the sake of brevity, the parties are referred to as per their rank before the trial Court. 3. The family tree is as under: 4. Plaintiff Nos.1 and 2 are the children of defendant No.1. It is not in dispute that plaintiff Nos.1 and 2 and defendant No.1 constitute a Hindu Undivided Family governed by Aliyasantana Law and defendant No.1 being a mother was managing the suit land bearing Sy.No.13/1 measuring 1 acre 70 cents. The plaintiffs feeling aggrieved by the alienation made by their mother have filed the present suit seeking relief of partition and separate possession. Plaintiffs have alleged in the plaint that they were not aware of alienation made by their mother/defendant No.1 in favour of defendant No.2. Plaintiffs have contended that suit land was granted by Land Tribunal and the said land which was subject matter of partition in the family was allotted to the branch of plaintiffs as well as defendant No.1 under registered family partition deed dated 25.05.1970. Therefore, feeling aggrieved by the alienation made by their mother, the plaintiffs have filed the present suit by contending that they are entitled to seek their legitimate share by effecting partition by metes and bounds. 5. Defendant No.1 who is the mother has not chosen to contest the proceedings. Defendant No.2 who is the purchaser of undivided interest filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.2 on the contrary claimed that the sale transaction entered into by plaintiffs mother in his favour binds the plaintiffs as well. Defendant No.2 questioned the maintainability of the suit on the ground that plaintiffs cannot a maintain a simple suit for partition without seeking cancellation of the sale deed executed by their mother in his favour. Defendant No.2 also contended that on account of long passage of time and the plaintiffs conduct in not questioning the alienation also gives an indication that plaintiffs have waived off their undivided right in the property and the same amounts to abandonment. 6. Defendant No.2 also contended that on account of long passage of time and the plaintiffs conduct in not questioning the alienation also gives an indication that plaintiffs have waived off their undivided right in the property and the same amounts to abandonment. 6. Plaintiffs and defendants to substantiate their respective claim have let in oral and documentary evidence. 7. Trial Court having examined the pleadings answered issue Nos.1, 2 and 4 in the affirmative. While issue No.3 was answered in the negative and against defendant No.2. While answering issue No.3 in the negative, trial Court held that defendant No.2 has failed to prove that the sale by defendant No.1 in his favour was for family necessity and consequently, issue No.4 was answered in the affirmative and while answering the said issue in affirmative, trial Court held that sale deed executed by defendant No.1 is not binding on plaintiffs share. The defendant No.2 since questioned the very maintainability of the suit, issue No.5 was framed in that regard. Trial Court answered issue No.5 in the negative and held that suit is maintainable without seeking cancellation of the sale deed dated 27.02.1987. The trial Court while answering additional issue No.1 in the negative also held that defendant No.2's claim that plaintiffs having kept quite for such a long time amounts to deemed consent for the transaction entered into between defendant No.1 and defendant No.2 was also not acceded to by the trial Court and additional issue was answered in the negative and against the defendant No.2. 8. Trial Court having examined the records and having regard to the fact that there is no serious challenge and dispute in regard to the fact that suit land is an Aliyasantana property proceeded to hold that plaintiffs have got independent right in the suit land and since they are not signatories to the sale deed, the said sale deed would not bind on the plaintiffs and consequently, suit is decreed granting 1/5th share each to the plaintiffs. 9. Defendant No.2 feeling aggrieved by the judgment and decree of the trial Court preferred appeal before the appellate Court. 10. Appellate Court as a final fact finding authority has formulated in all five points. 9. Defendant No.2 feeling aggrieved by the judgment and decree of the trial Court preferred appeal before the appellate Court. 10. Appellate Court as a final fact finding authority has formulated in all five points. While answering point No.1 in the affirmative, appellate Court was of the view that since plaintiffs have not questioned the sale deed dated 27.02.1987, the provisions of Section 29(1) of the Madras Aliyasantana Act, 1949, cannot be made applicable to the present case on hand. Appellate Court was of the view that plaintiffs could not have maintained a suit for partition and separate possession without seeking cancellation of the sale deed dated 27.02.1987. While answering point Nos.4 and 5 in the affirmative, appellate Court was of the view that the sale made by defendant No.1/mother in favour of defendant No.2 was for family necessity and therefore, the finding recorded by trial Court on issue No.3 was reversed and consequently, appeal was allowed and suit is dismissed. These divergent findings are under challenge. 11. This Court vide order dated 25.05.2023 has formulated following substantial questions of law: "1) Whether the Appellate Court justified in rejecting the relief of partition on the ground that plaintiffs have not sought the cancellation of sale deed dated 27.02.1987? 2) Whether the interpretation of Section 29(2) of the Madras Aliyasantana Act made by the First Appellate Court is correct and proper in view of the absence of written consent of the appellants?" 12. Learned counsel appearing for plaintiffs in the light of substantial questions of law framed by this Court has straight away placed reliance on the judgment rendered by the Division Bench of this Court in the case of Ganapati Santaram Bhosale vs. Ramachandra Subbarao Kulkarni , RFA.No.87 of 1975 Dtd: 12.02.1985. He has also placed reliance on the judgment rendered by the Coordinate Bench in the case of Munithayamma and Another vs. Byanna and Others, AIR Online 2022 Kar 187. Referring to the dictum laid down by the Division Bench and Coordinate Bench, he would point out that it is not in dispute that plaintiffs and defendant No.1 constitute an Undivided Joint Hindu Family and the parties are governed under Aliyasantana Law and therefore, mother had no absolute right to alienate the property without the consent of other family members. Referring to the dictum laid down by the Division Bench and Coordinate Bench, he would point out that it is not in dispute that plaintiffs and defendant No.1 constitute an Undivided Joint Hindu Family and the parties are governed under Aliyasantana Law and therefore, mother had no absolute right to alienate the property without the consent of other family members. Referring to the dictum laid down by the Division Bench, he would point out that since plaintiffs have antecedent right in the property, there is no need for them to seek cancellation of the sale deed. He would go one step further and claim that plaintiffs even need not seek a formal declaration that the sale is not binding on their legitimate share. Reliance is placed on para 48 of the judgment rendered by the Coordinate Bench in the Munithayamma vs. Byanna (supra). He would refer to para 48 of the said judgment and contend that the Division Bench judgment rendered in the case of Ganapati Bhosale (supra) held that a non-alienating coparcener can maintain a partition suit without questioning the sale deed and it would be sufficient if he merely asks for a share. Interpreting the principles laid down by Division Bench, Coordinate Bench at para 48 has held that Division Bench has not examined whether it is imperative or mandatory for a coparcener to seek for a declaration that it is not bound by any alienation or interest that has been created in the properties. He would point out that coordinate Bench has held that such a declaration is not required to be mandatorily sought so as to maintain a suit for partition on account of alienation by the other family member. He has also placed reliance on the judgment rendered by this Court in the case of Inas Aranha vs. Shivayya Banga and Others, ILR 2013 Kar 619. Referring to the principles laid down by the Coordinate Bench, he would point out that a member of Aliyasantana has no right to sell the properties and therefore, the purchaser dehors the sale by one of the family member will not acquire absolute right over the entire extent. 13. Per contra, learned counsel appearing for defendant No.2 would however support the findings recorded by the appellate Court while dismissing the suit. 13. Per contra, learned counsel appearing for defendant No.2 would however support the findings recorded by the appellate Court while dismissing the suit. He would point out that in the light of principles laid down by Division Bench in the judgment cited supra, plaintiffs if not seeking cancellation of sale deed, were atleast required to seek a formal declaration that the sale deed executed by defendant No.1 in favour of defendant No.2 would not bind their legitimate share. He would also point out that defendant No.2 who is a purchaser who had purchased for valuable sale consideration being a bonafide purchaser is found to be in exclusive possession and therefore, no relief can be granted to the plaintiffs. He would also bring to the notice of this Court that the sale is made on 27.02.1987 while plaintiffs have chosen to file the suit only on 07.04.1997 and therefore, he would point out that by conduct it can be inferred that plaintiffs had given their consent and authorization to defendant No.1 to alienate the property. On these set of grounds, he would point out that substantial questions of law framed by this Court needs to be answered in the negative and against the plaintiffs. 14. Heard learned counsel appearing for plaintiffs and learned counsel appearing for defendant No.2. I have given my anxious consideration to the findings recorded by both the Courts. I have also given my anxious consideration to the judgments cited by both the Counsels.My findings on first substantial question of law: 15. Admittedly, plaintiffs and defendant No.1 constitute an Undivided Joint Hindu family and are members of Aliyasantana family. It is not in dispute that suit land is an Aliyasantana property and the same can be inferred from the recitals in the sale deed executed by defendant No.1 in favour of defendant No.2. Defendant No.2 can non-suit the plaintiffs only on two counts. Firstly, if he is able to demonstrate that the alienation by defendant No.1 is only for family necessity. Secondly, as claimed in the written statement if he is able to demonstrate that the present suit filed by plaintiffs is a collusive suit only to set at naught a valid sale deed executed by mother for valuable sale consideration. 16. Firstly, if he is able to demonstrate that the alienation by defendant No.1 is only for family necessity. Secondly, as claimed in the written statement if he is able to demonstrate that the present suit filed by plaintiffs is a collusive suit only to set at naught a valid sale deed executed by mother for valuable sale consideration. 16. On examining the judgment rendered by the trial Court, though defendant No.2 has taken a contention that the alienation by defendant No.1 on 27.02.1987 was for family necessity, there is absolutely no evidence let in by defendant No.2 to substantiate his claim that alienation by defendant No.1 was for family necessity. Accordingly, issue No.3 is answered in the negative. Though a plea of collusion is set up in the written statement, however, it seems that defendant No.2 has abandoned the said defence during trial. There is no issue framed by the trial Court and defendant No.2 has also not made any attempts by filing appropriate application calling upon the trial Court to frame an issue on collusion. If these two elements are taken out, then the question that needs to be examined by this Court in the light of substantial question of law framed at Sl.No.1 as to whether plaintiffs could have maintained a suit for partition without questioning the sale deed dated 27.02.1987. The law in that regard is no more res integra. The Division Bench of this Court in the judgment cited supra has clearly held that in a suit for partition, a nonalienating member need not question the sale deed executed by one of the family member. It is sufficient if he asks for his share in the joint family properties. The Division Bench held that he can seek a formal declaration. The question that needs examination is as to whether a suit for partition has to fail in the event plaintiffs who are non-alienating members of a joint family fail to seek a formal declaration. My answer is emphatically 'No'. As it is a trite law that in a joint family ancestral property, the members have a pre-existing right and such a right is acquired by birth. If the family members have an antecedent right, the alienation made by one of the member in excess of his/her legitimate share would not take away the right of the other non-alienating family members. If the family members have an antecedent right, the alienation made by one of the member in excess of his/her legitimate share would not take away the right of the other non-alienating family members. The fact that defendant No.2 has failed to substantiate that the alienation was for family necessity and that alienation was with the consent of plaintiffs herein, a simple suit for partition and separate possession is very much maintainable. The Division Bench dictum rendered in the judgment cited supra calling upon the plaintiffs to seek a formal declaration is director in nature and not mandatory. A joint family member who has a independent right, even in absence of a formal declaration cannot be non-suited as it is a pre-existing right and such a right is not lost merely because plaintiffs have not chosen to seek a formal declaration that it is not binding on their legitimate share. If plaintiffs have a independent right dehors alienation made by one family member, the plaintiffs can maintain a simple suit for partition and separate possession even without seeking a mere formal declaration. The fact that Division Bench held that plaintiffs have to seek a mere suit for formal declaration that they are not bound by alienation presupposes and refers to the pre-existing right of joint family members. If plaintiffs have independent right, the alienation in itself will not deprive their legitimate share in the suit schedule property unless that alienation is shown to be for the benefit of the family. 17. In the light of discussion made supra, the finding of the appellate Court that plaintiffs could not have maintained a suit for partition without seeking cancellation of sale deed suffers from perversity, serious infirmity and is patently erroneous. The findings recorded by the appellate Court on point No.1 is found to be in contravention with the dictum laid down by the Division Bench in the case of Ganapati Bhosale (supra). Therefore, the first substantial question of law needs to be answered in the affirmative and against defendant No.2.My findings regarding second substantial question of law: 18. The appellate Court while re-assessing the evidence on record and while recording its finding on point Nos.4 and 5 has strangely come to conclusion that the sale made by defendant No.1/mother was for family necessity. The appellate Court while re-assessing the evidence on record and while recording its finding on point Nos.4 and 5 has strangely come to conclusion that the sale made by defendant No.1/mother was for family necessity. The appellate Court was of the view that defendant No.2 has succeeded in substantiating that sale was for family necessity and therefore, she was competent to enter into a sale transaction with defendant No.2. On examining the observations made by the appellate Court, this Court would find that the finding that sale was for family necessity is not at all supported by any reasons. Appellate Court proceeds on an assumption that while plaintiff No.1 was residing in Bangalore and defendant No.2 was residing at Tamilnadu, it proceeds on an assumption that none of the families were interested in retaining this property and therefore, that led to alienation. Having recorded these findings, appellate Court ultimately proceeds to hold that sale is for family necessity. Therefore, the reasons assigned by the appellate Court while answering point Nos.4 and 5 is not supported by any reasons and the reversal of finding of the trial Court on issue No.3 which deals with as to whether alienation was for family necessity is found to be perverse. If there is no dispute that the parties are governed under the provisions of Aliyasantana Act, then in terms of Section 29(2) of the said Act, the alienation made by defendant No.1/mother in selling the entire extent without seeking consent of the other family members would not bind the plaintiffs. The appellate Court has not adverted to this aspect while non-suiting the plaintiffs on the ground that plaintiffs have not sought for cancellation of sale deed dated 27.02.1987. Defendant No.2 has also admitted that sale deed by defendant No.1 in his favour was without the consent of plaintiffs. Defendant No.2's stand in the written statement is that on account of passage of time, it has to be presumed that there was a implied consent by conduct by the plaintiffs and therefore, plaintiffs cannot maintain a suit for partition. Having taken such a stand, defendant No.2 has not substantiated his stand. Therefore, the reversal of the findings on issue No.3 by the appellate Court without recording its reasons for reversal suffers from serious perversity and also contravenes the provisions of Rule 30 and 31 of Order 41. Having taken such a stand, defendant No.2 has not substantiated his stand. Therefore, the reversal of the findings on issue No.3 by the appellate Court without recording its reasons for reversal suffers from serious perversity and also contravenes the provisions of Rule 30 and 31 of Order 41. Accordingly, the second substantial question of law is answered in the affirmative and against the defendant No.2. The appellate Court erred in recording a finding that sale was for family necessity and therefore, the same would bind the plaintiffs. The appellate Court has not adverted to the issue relating to as to whether the sale was with consent of other family members as required under Section 29(2) of Madras Aliyasantana Act. 19. For the reasons stated supra, the substantial questions of law framed by this Court are accordingly answered in the affirmative and against defendant No.2. 20. Hence, I pass the following: ORDER (i) The second appeal is allowed; (ii) The judgment and decree rendered by the appellate Court in R.A.No.6/2009 is set aside. Consequently, judgment and decree rendered by the trial Court in O.S.No.31/2005 is confirmed; (iii) The pending interlocutory application, if any, does not survive for consideration and stands disposed of accordingly.