SHIVAJI GANPATI MUTHAL Vs. MURLIDHAR DAJI MUTHAL

JUDGEMENT

(1.) THE facts giving rise to this Pull Bench are very few. Ganpati, who is the father of the plaintiffs, made an alienation of joint family property in 1936. At that time the joint family consisted of Ganpati and his son Maruti who was at that time a minor. Maruti left the joint family in 1942 as he was given away in adoption, but before the adoption took place the plaintiffs were born to Ganpati. The plaintiffs filed the suit to challenge this alienation and the trial Court held that the alienation was not supported by necessity. The trial Court also held that the plaintiffs were entitled to challenge the alienation and passed a decree in favour of the plaintiffs. In appeal the lower appellate Court concurred with the finding of the trial Court with regard to the necessity 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 enters the coparcenary. As it has been said, he must take the joint family property as he finds it. The second principle is that if a father alienates property and that alienation is not supported by necessity, then the alienation is not void but voidable. The question that we have to consider is, first, whether a son born after the alienation is entitled to challenge the alienation made by his father; in the second place, if he has such a right, whether that right is unlimited; and in the third place, whether there are any limitations upon that right and if so, what limitations. It follows as a consequence from the proposition we have just stated that an alienation is not void but voidable, that an after born son has no right in the alienated property. Till the alienation is successfully challenged, the alienation is good, and therefore when the after born son enters the coparcenary, he cannot claim to take any interest in the alienated property. It is also clear that if at the date of the alienation there is a son in existence, unless he consents to the alienation, the alienation would not be binding upon him, and therefore he can challenge that alienation. It is also well settled that the alienation can be challenged within 12 years from the date of the alienation. After 12 years the right to challenge would be barred. Therefore, there is no dispute as to the right of a son who was in existence at the date of the alienation and who has not consented to that alienation to challenge the alienation. The difficulty arises with regard to an after-born son who was not in existence at the date of the alienation. It may be suggested that as he had no right in the alienated property he would have no right to challenge the alienation. On the other hand, the right to challenge the alienation accrues to the son who was in existence at the date of the alienation, and the real question that we have to consider in this Pull Bench is whether the fact that the after-born son was in existence during the time that the son who had a right to challenge continued to remain in the joint family, gave him also the right to challenge the alienation.

(3.) NOW, in order to decide this question we must first consider what is the nature of the right that the son has to challenge the alienation. It would be fallacious to suggest that the right of the son who was in existence at the date of 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 born. It is also true that limitation runs from the date of the alienation. But the cause of action having already accrued and the cause of action subsisting when the subsequently born son comes into the family, it is difficult to understand why that subsequently born son could not challenge the alienation as much as the earlier born son. The position would be different if the subsequently born son came into the family after the death or adoption of the earlier born son or he came into existence after the right to challenge had been barred by limitation. In such a case when the subsequently born son came into the family, he would have no right subsisting which he could avail himself of. Therefore, the question that we have to decide narrows itself down to this, viz. whether, when a father alienates joint family property and at that time he has a son who does not consent to the alienation and who has the right to challenge the alienation, and while that right is subsisting in that son and the right has not come to an end either by limitation or by his death or adoption, another son is born to the father, whether there is anything in principle which should deprive the subsequently born son of challenging the alienation. In our opinion the answer to this question must depend to a large extent upon what view we take of the right of the son to challenge the alienation. If we take the view that the right is purely personal, that it enures only for his benefit, and that he alone can exercise it, then undoubtedly the subsequently born son could not avail himself of that right. But if we take the view, as we do, that the right is not purely personal, that the right is a right that belongs to the joint family, that it is a right, if not in joint family property, to joint family property, then on principle we must come to the conclusion that this right which was in existence when the after-born son came into the family was exercisable by that after-born son as much as it could have been exercised by the son who was in existence at the date of the alienation.