1953 (12) TMI 29 - HC - Indian Laws

Summary

Issues Involved:
1. Whether, under Hindu law, a son who is neither born nor adopted at the time of the alienation made by the father is entitled to challenge the validity of the said alienation?
2. If not, does he acquire the said right if at the time when he was born there is in existence another son who could have challenged the said alienation and who has not lost the said right?

Issue-wise Detailed Analysis:

Issue 1: Entitlement of an Unborn Son to Challenge Alienation
The court examined whether a son who is neither born nor adopted at the time of the alienation made by the father is entitled to challenge the validity of the said alienation under Hindu law. The court noted that a person born in a coparcenary is entitled to the property which is in existence at the time when he enters the coparcenary. The alienation by the father, if not supported by necessity, is voidable but not void. Therefore, an after-born son has no right in the alienated property until the alienation is successfully challenged. The court concluded that the right to challenge an alienation accrues to the son who was in existence at the date of the alienation, and an after-born son cannot claim any interest in the alienated property unless the alienation is successfully challenged.

Issue 2: Acquisition of Right by Subsequently Born Son
The court then considered whether an after-born son acquires the right to challenge the alienation if at the time when he was born, there was another son in existence who could have challenged the alienation and who has not lost the said right. The court emphasized that the right to challenge an alienation is not purely personal but is exercised on behalf of the family for the benefit of the whole family. If a son who was in existence at the date of the alienation had the right to challenge it and another son was born while that right was subsisting, the after-born son should also have the right to challenge the alienation. The court found that this right is derived from the joint family and is not limited to the son in existence at the date of the alienation. The court concluded that the after-born son could challenge the alienation as effectively as the son who was in existence at the date of the alienation.

Judgments and Precedents:
The court reviewed several judgments, including the Division Bench decision in "Gujarat Oil Mills & Mfg. Co. Ltd. v. Shakarbhai Motilal," which held that a subsequently born son could not maintain the action. The court disagreed with this view, emphasizing that the right to challenge an alienation is for the benefit of the joint family and not merely for the individual son who was in existence at the date of the alienation.

The court also considered the Privy Council decision in "Lal Bahadur v. Ambika Prasad," which was interpreted by some to suggest that after-born sons could not challenge alienations. However, the court found that this decision did not conclusively address the issue and that the Privy Council had not considered the doctrine of overlapping, which allows an after-born son to challenge an alienation if there was an overlapping of lives with a son who had the right to challenge the alienation.

The court further referred to the decision in "Shri Udasi Nirwani v. Surajpal Singh," where the Privy Council recognized the doctrine of overlapping, allowing subsequently born sons to challenge an alienation if they were born during the lifetime of a son who had the right to challenge the alienation.

Conclusion:
The court concluded that if a father alienates joint family property without necessity, the alienation is voidable if there was a son born or conceived at the date of the alienation. This son has the right to challenge the alienation. If, before this right is lost, another son is born, the after-born son can also challenge the alienation. Therefore, the plaintiffs in the present case had the right to challenge the alienation made by their father in 1936, as they were born before their elder brother Maruti was given in adoption.

Final Answers to the Questions:
1. The after-born son does not have an unlimited right to challenge an alienation made by the father. His right is circumscribed by the existence of another son who had the right to challenge the alienation and who had not lost that right.
2. The after-born son acquires the right to challenge the alienation if, at the time when he was born, there was another son in existence who could have challenged the alienation and who had not lost the said right.