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TMI Blog1953 (12) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... for the alienation, but on the question of the right of the plaintiffs it came to a contrary conclusion and dismissed the plaintiff's suit. The matter then came in second appeal before Mr. Justice Gajendragadkar and Mr. Justice Vyas and they raised the two following questions and referred them to the Pull Bench, and the two questions are : (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? and (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? A large number of authorities have been referred to us at the bar, but before we deal with them it is necessary, in our opinion, to enunciate certain principles, and having enunciated these principles, we will consider the authorities to see whether these authorities support these principles or are in any way inconsistent with them. 2. The first principle is that a person born in a coparcenary is entitled to the property which is in existence at the time when he ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the alienation to challenge the alienation is a purely personal right. A personal right is a right which enures only for the person asserting that right. When the son challenges the alienation and if the challenge is successful and the alienated property is brought back into the joint family, the property enures not only for the benefit of the challenging son but it enures for the benefit of the whole family. Therefore, the right to challenge which Hindu law gives to a son who was in existence at the date of the alienation is not a right personal to him; it is a right which he exercises on behalf of the family; it is a right which he exercises for the benefit of the family. If that is the nature of the right and while that right is subsisting, another son is born, does that son get the right which the elder son had to challenge the alienation? It is difficult to understand on principle why the subsequently born son should not be in a position to avail himself of the right which had already accrued to the elder son to challenge the alienation. It is perfectly true that the right to challenge an alienation constitutes one cause of action; it does not accrue every time a new son is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as defendant No. 2 formed a joint Hindu family and while plaintiff No. 1 was a minor his father made a certain alienation. Plaintiff No. 2 was born subsequently to defendant No. 2. The two plaintiffs then filed a suit to challenge the alienation. Plaintiff No. 1 died pending the suit. The defendants contended that the suit had abated as plaintiff No. 2 had no cause of action himself and no cause of action survived to him from plaintiff No. 1. Sir John Beaumont, Chief Justice and Mr. Justice Sen accepted the contention of the defendants and held that the suit had abated. It will be noticed that plaintiff No, 2 was born while plaintiff No. 1 was still in existence; in other words, plaintiff No. 2 was born at a time when plaintiff No. 1 had the right to challenge the alienation, and in fact he challenged that alienation by filing a suit making his brother a party plaintiff. The learned Chief Justice held against the plaintiffs largely on the basis of a Full Bench judgment of the Nagpur High Court in -- 'Kashinath v. Eapurao. The learned Chief Justice at pp. 240, 241 lays down three propositions. The first is that the cause of action to set aside an alienation not for necessity a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p but out of survivorship, a principle well understood in Hindu law. 5. Now, we must first look at the decision of the Privy Council on which reliance has been placed by the learned Chief Justice. Turning, therefore, to the case of 'Lal Bahadur v. Ambika Prasad (C)', in that case Ram Din and his brother Pateshwari were the managers of a joint Hindu family and they mortgaged certain joint family property in 1895. Ram Din had two sons Awadh Behari and Jantri Prasad. In 1895 Awadh Behari was about 13 years old and Jantri Prasad was about 3 years old. The plaintiffs in the suit were the sons of Awadh Behari. In 1904 Pateshwari and Ram Din, the managers, sold the property to pay off the mortgage debt and the two sons of Awadh Behari filed the suit in 1919 to challenge the sale, and two questions arose before the Privy Council. One was whether the sale which the grandsons were challenging could be supported by necessity, and the other question was whether the grand-eons could maintain the action. The Privy Council held that inasmuch as the sale was effected in order to discharge an antecedent debt, it was binding upon the plaintiffs, and what we have to consider is whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property. Excepting for stating the bald fact that the sons of Awadh Behari were unborn in 1895, there is no discussion whatever as to whether the sons who were not born at the date of the alienation had any right to challenge the transaction, or, if they had, whether there is any limitation upon that right. It may also be pointed out that the appeal before the Privy Council was capable of being disposed of on the short question of limitation, because the sale that was challenged was of 1904 and the suit was filed in 1919. As a matter of fact that point was urged by Mr. Dunne as appears from his arguments at p. 796 (of 47 All.). But this decision in no view of the case can be looked upon as an authoritative pronouncement on the rights of after-born sons in respect of an alienation made by the father, the very question which we have to consider in this Full Bench. Whether the doctrine of overlapping applies and has any validity, has not even been referred to by the Privy Council. It is really in a subsequent decision of the Privy Council, to which we shall presently refer, that this doctrine has been adverted to. 6. Before I refer to that decision, perhaps it would be better to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upon this rule, it is admitted, there is engrafted an exception to the effect that if the child who objects to the alienation of the property comes into existence or is conceived after the alienation, but during the life of a child born or conceived before alienation, then that overlapping of the two lives enables the later-born child to contest the validity of the father's act." Therefore, the Privy Council clearly enunciates the principle of Hindu law that a member of a joint family must take the property of the Joint family as he finds it, when he is born. It was open to contend from that principle that no subsequently born son can challenge an alienation because the alienated property had already gone out of the joint family, and therefore the Privy Council points out that upon that principle an exception is engrafted and the exception is the doctrine of overlapping to which reference has already been made. The doctrine is clearly and succinctly set out by the Privy Council in the passage we have just referred to. Then at p. 4 their Lordships go on to observe: "Their Lordships do not think it necessary to determine whether this limitation upon the right of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppealed from, -- 'Surajpal Singh v. Panchaiti Akhara AIR1939All486 Mr. Justice Bennett in his judgment states: "Another point urged in regard to this question of the existence of a minor son, Sheo Pratap Singh, in 1920 was that learned counsel for the plaintiff argued that the evidence of Surajpal Singh should not be accepted where he states that this boy survived until the birth of defendant 4 and learned counsel proceeded to state that if that boy Sheo Pratap Singh did not survive until the birth of one of the existing minors, then the existing minors could not challenge the mortgage deed on the ground of want of legal necessity." Therefore, what was being urged was that on the facts the doctrine of overlapping did not apply. To this the answer given by the learned Judge is (p. 493) : ".... This proposition is no doubt laid down in a ruling of the Madras High Court in -- 'Visvesvara Rao v. Surya Rao AIR1936Mad440 , in which it is laid down that there must be no gap between the death of one minor and the birth of the existing minors. Such a proposition has never been laid down by their Lordships of the Privy Council or by the Allahabad High Court." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m when they die, or, when they permit the period of limitation to expire." It is clear from this observation that the view taken by the Madras High Court was that an after-torn son had the same right which a son had who was in existence at the date of the alienation. It was only when that son lost the right either by death or by adoption or he permitted that right to lapse by limitation, that the right of the after-born son was lost; in other words, the right of the son to challenge the alienation and the right of the after-born son was coextensive. Therefore, the Privy Council when it acted on the admission of counsel had the views both of the Allahabad High Court and the Madras High Court at least before them, and therefore it would not be correct to say that the admission on which the Privy Council acted was not supported by any authority in India. 10. Sir John Beaumont has also referred in his judgment to two Allahabad cases. One is --'Chuttan Lal v. Kallu 33 All 283 (G), and the other is -- "Tulshi Ram v. Babu 33 All 654 (H). In the first case the Allahabad High Court seems to have held that a member of a joint Hindu family who was born after the alienation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two sons Boli and Sunder and Boli left two sons Babu Lal and Munshi Lal. The alienation which was in the nature of a mortgage was effected by Ram Sahai, and the two sons of Boli were born after the alienation. The suit was filed against Sunder Lal, Babu Lal and Munshi Lal by the mortgagee, and Babulal and Munshi Lal challenged the alienation. Therefore, Babu Lal and Munshi Lal were alive when the right to challenge subsisted in Sunder Lal, who had not consented to the alienation, and therefore even on the principle that we are suggesting this decision can be supported. 11. The decision on which Sir John Beaumont placed great reliance in his decision in AIR1943Bom239 (A) is the decision of the Pull Bench of the Nagpur High Court in (B), There the alienation was' challenged by a son who was not born at the time of the alienation, but at the time of the alienation there was a son and there was clearly an overlapping of the two lives. In the decision of the Full Bench the learned Chief Justice has stated certain principles. Having stated those principles at p. 313 he winds up by saying : "But if a son is in existence and does not consent and then another son is born; or if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the effect of the consequence of an alienation by the father or the manager. An alienation is looked upon as a notional partition only for one purpose and that is to determine the share that the alienee gets on the alienation taking place. But it will be erroneous to think that the effect of an alienation is to disturb the coparcenary. We have the dissenting judgment of Mr. Justice Grille, and in my opinion the learned Judge correctly states the position when at p. 321 he observes : "..if the alienation is found to be void, or rather invalid, in respect of some of the property purported to be alienated, then a subsequent-born son is entitled to a share in that property, and, so long as the cause of action, which arises at the time of the alienation and at no other time subsists, that son has a right as personal to him as that of the deceased brother, independent of him but like him as a member of the coparcenary, to challenge the transaction." 12. In my opinion, therefore, the view propounded, by Sir John Beaumont in 'Gujarat Oil Mills Mfg. Co.'s case (A)', must be deemed to have been overruled by the decision in. Even otherwise, in my opinion, 'Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standi' to challenge the validity of the mortgage deed in suit. They point out that it was quite clear that at the time the document was executed there was in existence a son of the mortgagor. It was further clear that no question of the consent of the son to the alienation could be raised, and because of this fact that there was in existence a son of the mortgagor at the date of the alienation and the minor defendant was born during the lifetime of that son, the Allahabad High Court came to the conclusion that it could not be argued that the minor defendant was not entitled to object in the suit to the validity of the mortgage. The learned Judges further point out at p. 345 that before the previous suit was decided the minor defendant had come into existence, and had thus come to have an interest of his own in the estate, an interest which was quite distinct from that of his brother and his father. That being so, the learned Judges could not see how at the time the suit came to be decided it could be said that the minor defendant was represented by his minor brother the plaintiff, whose interest was totally distinct from his own. Therefore, the Court rejected the argument th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbika Prasad (C)', to justify the view that the old Indian decisions were meant to be overruled. The principle underlying those decisions was merely this that though the unborn son had no right in the family property at the time of the alienation, yet on his birth he acquires a share in the family property as it then stands. If a previous alienation was validated by consent or failure to set it aside in time on the part of the other members of the family then in existence, the son who is born afterwards cannot question it because the alienation is no longer questionable and the property has validly passed out of the hands of the family. If, however, the alienation is still open to challenge, then it must be open to challenge by the entire coparcenary which is interested in the property and which is continually enlarged by births as it is diminished by deaths." 17. Reference was also made by Mr. Chandrachud to the well known text book on Hindu Law by Mayne. We find, with respect to the learned author, that there are two inconsistent propositions with regard to the doctrine that we are considering. At p. 500 in the 11th edition the preposition is: ".... If the aliena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had the right to challenge the alienation. 19. The questions put to us are two, and on the facts the question which directly arises is the second question, viz., whether the after-born son acquires the right of challenging the validity of the alienation, if at the time when he is adopted or born there is in existence another son who could challenge the alienation and who has not lost the said right. That question I must answer in the affirmative. With regard to the first question, it is a larger and a wider question which raises the question whether the after-born son has an unlimited right to challenge an alienation. As I have answered the second question in the affirmative, it follows that the right of an after-born son is not an unlimited right, but it is a right circumscribed in the manner I have indicated in the judgment. Y.V. Dixit, J. 20. I agree in the answers given by the learned Chief Justice and in the reasons given in support thereof. From the cases cited at the Bar the following propositions will, I think, emerge: (1) Under Hindu law, as administered in the State of Bombay, a father may alienate family property for legal necessity or for the payment of an antecede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision, at Barsi, by the three subsequently born sons of Ganpati by their next friend their mother for setting aside the alienation effected by Ganpati in the year 1936: and the question which arose for decision was whether the plaintiffs, who were admittedly not born at the time of the alienation, were entitled to institute a suit and to claim that the alienation effected by their father in 1936 in so far as it purported to convey to the transferee an interest exceeding his half share in the lands was liable to be set aside at their instance on the ground that it was unauthorized. 22. It was contended that the alienation could not be set aside at their instance, because the plaintiffs were not in existence at the date of the alienation, and under Hindu law they were entitled only to such property as belonged to the joint family at the respective dates on which they were born. 23. It may be necessary to state some of the well recognised propositions of Hindu law applicable to the Bombay State before any attempt is made to tackle the problem which has been debated before us. In the Bombay State a coparcener in a joint Hindu family without the consent of other coparceners is entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manner in which any other joint family property may be used, enjoyed or disposed of. These comparatively simple propositions of Hindu law in their application to the facts giving rise to this second appeal, raise questions of some complexity. 25. Admittedly at the date when the alienation was effected by Ganpati, Maruti was the only other coparcener in the family in existence. He had a right to file a suit for setting aside the alienation effected by his father Ganpati to the extent of his one half interest in the family property, but Maruti did not file a suit for setting aside the alienation, and before this suit was instituted for setting aside the alienation, he had ceased to be a member of the joint family to which the plaintiffs belong. But three other coparceners who came into existence in the joint family after the date of the alienation have filed the present suit relying upon the right which for sometime at least could have been exercised by Maruti alone; and the question is whether the plaintiffs who are born after the date of alienation are entitled to file a suit relying upon the right which arose in the year 1936 to obtain a declaration that the alienation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. So far as cases falling under classes 3 and 4 are concerned, it may be necessary to refer to the essential structure of a joint Hindu family and the character of the property owned by it in order to ascertain whether an unauthorized alienation effected by any of its members could to the extent to which it is unauthorized be challenged by coparceners who were born in the family subsequent to the alienation. A Hindu joint family normally consists of male members as well as their wives, sons, daughters who are not married, and the widows of the family; and the family continues so long as there is a single widow left in the family, who in the way of nature or by a fiction of law can introduce a coparcener into the family. Even the death of the last sole surviving coparcener does not put an end to the Joint family. The property of the joint family is held by the coparceners of the family, not in their individual rights, but for and on behalf of the joint family, and every coparcener is regarded as owner of the entire property of the family subject to a similar and equal right vested in other coparceners. Such ownership of the joint family property is, however, peculiarly limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruti was adopted into another family after the three plaintiffs were born, and this case falls within the third class which I have referred to earlier. There has been a conflict of opinion on the question whether a suit is maintainable by subsequently born coparceners in cases falling under the second class, viz. where a coparcener who was in existence at the date when the alienation was effected has either died or ceased to exist, whether a coparcener born or begotten subsequent to the date on which the elder coparcener died or ceased to exist in the family can institute a suit for setting aside the alienation within the period provided for instituting a suit for setting aside the alienation. 30. In a case reported in AIR 1336 Mad 440 (F) the Madras High Court has taken the view that the right to challenge an alienation comes to an end upon the death of the coparcener who was in existence at the date of the alienation, when there are no other coparceners existing at that date, and is not revived by the birth of coparceners subsequent to the death of that coparcener. The learned Judges of the Allahabad High Court have expressed the view in AIR1939All486 (B) that the view of the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be content with the family estate as he finds it at his birth, or at any rate he cannot complain of anything done before the period of gestation. But it was conceded at the Bar that that rule was subject to an exception, and the exception was that if the child who objects to the alienation of the property comes into existence or is conceived after the alienation, but during the life of a child born or conceived before alienation, then the overlapping of the two lives enables the later-born child to contest the validity of the father's act. Their Lordships observed in the course of their Judgment that they did not think it necessary to determine whether that limitation, viz. as to the overlapping of lives upon the right of an after-born child to resist the claim of an encumbrance upon the family estate correctly expresses the law in all respects. They held on the facts of that case agreeing with the view of the Allahabad High Court that the three plaintiffs were born during the lifetime of Sheo Pratab Singh, who was in existence as at the date of the alienation, and there was in fact overlapping of lives. 32. Mr. Jahagirdar' on behalf of the respondents has contended b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge an encumbrance binding upon the plaintiffs. Lastly, it was contended that the plaintiffs' father was alive when the suit was brought & his claim was barred three years before the date on which the suit was instituted by the plaintiffs, & the plaintiffs who claimed derivatively through him, could not file a suit because their claim must also be regarded as barred by the law of limitation. Their Lordships of the Privy Council expressed an opinion that the debt for the satisfaction of which the property was sold was an antecedent debt; but the ultimate conclusion of their Lordships rested upon the observation that the mortgages were binding upon the plaintiffs. It is true that their Lordships of the Privy Council have several times in the course of their judgment referred -to the fact that in the year 1895 -- the date on which the mortgages were executed by the grandfather of the plaintiffs all the three plaintiffs were unborn, and they have also observed that the plaintiffs had no interest in the family property at the dates of those mortgages. But they nowhere considered the effect upon the rights of the plaintiffs of the inaction of Awadh Behari -- the-father of the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d another coparcener who was born subsequent to the date of the alienation filed a suit to have the alienation set aside on the ground that it was unauthorized. Before a decree could be passed in that suit, the elder coparcener who was in existence at the date of the alienation died, and the suit was proceeded with by the younger coparcener. It was held in that case that the right to file a suit to have the alienation set aside only vested in the elder coparcener, and he having died during the pendency of the suit and the subsequently born coparcener not being an heir or legal representative of the elder coparcener, the suit could not be decreed in favour of the former. The Judgment of the Court in that case proceeded on the view that the right to challenge an alienation is vested in the coparcener who was in existence at the date of the alienation, and the action instituted to set aside the alienation is not a representative action, but an action for and on behalf of the coparcener in existence at the date of the alienation. It was recognised in that case that if property was- obtained in the suit instituted by the elder son, the property would have enured for the benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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