Nanak Ram vs Lalitkumar And Ors. on 25 January, 1972
6. Learned Counsel for the appellant contends that the conclusion reached by the learned District Judge was erroneous. He maintains that according to Mitaksara which is the School of Hindu Law held to be prevalent in Rajasthan an undivided share of coparcener cannot be alienated by the manager or other coparceners if there is no legal necessity or a family purpose or an antecedent debt warranting such an alienation, unless all the coparceners concerned agree to such an alienation. Learned Counsel submits, that the mere fact that Abu Road at one time formed part of the erstwhile Bombay Presidency or Bombay State for a short period would not mean that the Bombay School of Hindu Law governed such an alienation regarding the undivided share of a coparcener in the Joint Hindu Family property in supersession of the prevailing School of Hindu Law, that is Mitaksara. Learned Counsel placed reliance on a recent decision of this Court reported as Nasirabad Urban Cooperative Bank Ltd. v. Gyanchand Jain and Ors. 1970 WLN 248. It was held in this case that a coparcenery property can be alienated: (1) by the whole body of the coparceners where they are all adults, (2) by its manager for legal necessity or for the benefit of the estate; (3) by the father for the payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes and; (4) by the sole surviving coparcener. It was further observed that it is settled that a mortgage of a joint family property between the coparceners without legal necessity or for the benefit of the estate was void in its entirety and could not be held valid even to the extent of the coparcener's interest who makes the alienation The learned Judge speaking for the Court referred to a number of cases including AIR 1917 P.C. 41, in laying down this proposition.