PARAPPA NINGAPPA KHADED Vs. MALLAPPA KALLAPPA

JUDGEMENT

(1.) THIS Pull Bench has been constituted to decide the vexed question of the interest that an alienee takes in joint family property unauthorisedly alienated by the father, and the few facts which are necessary to state in order to decide that Question are that there was an alienation by the father, who is defendant 1, in favour of defendant 2, and the alienation was challenged by his son plaintiff 1 and by his step mother plaintiff 2 who was the second wife of defendant 1. The suit that was filed by the two plaintiffs was for partition and they claimed in the suit two-thirds share in the properties alienated by defendant 1.

(2.) THE question that we have to consider is, what is the share to which the plaintiffs are entitled in the property which was alienated by de. fendant 1? An earlier Pull Bench was constituted, the Judgment of which is reported in -- 'sakarehand Satidas v. Narayan Savla', AIR 1951 Bom 10 (FB) (A), and there it was held that under Hindu law the share of the alienee of Joint family property is to be determined at the date of the alienation and not at the time when the alienee asks for an equitable partition of the property. Two conflicting views were in the field at the time the decision of that Pull Bench was given. One was the view which was accepted and which has just been mentioned. The other was that the share of the alienee is a fluctuating share and is to be determined at the date when the challenge to the alienation is made and the Court must decide what the share of the alienor is at the date when the suit is filed. The second view was rejected by the Pull Bench. The difficulty in this case arises by reason of the fact that at the date of the alienation defendant 1, the father, had a son alive and his wife was also alive, and the question that has been agitated at the Bar is whether the wife is entitled to any share which can be safeguarded on the alienation being challenged by the plaintiffs. The view which has been put forward with great ability and with great vigour by Mr. Datar is that on the alienation being challenged by the plaintiffs the only interest in the joint family property which can be safeguarded and which would not go to the alienee is the share of the son, that the mother has no share in the joint family property, and therefore her Interest was validly alienated by her husband.

(3.) BEFORE we deal with the authorities it would be perhaps desirable to consider the contention put forward by Mr. Datar from different aspects. The basis underlying Mr. Datar's contention is certain well accepted principles of Hindu Law. The first principle is that a Hindu wife has no Interest in the joint family property which she can enforce by a suit for partition. The second principle, which follows really from the first, is that if there is an unauthorised alienation of joint family property, only a coparcener can challenge the alienation and the wife not being a coparcener has no right to challenge it. As a consequence of these contentions it is urged by Mr. Datar that it is only the coparcener who challenges the alienation who can safeguard his interest in the Joint family property. The challenge being made by the coparcener who has not consented to the alienation avoids the alienation and to the extent of the avoidance his interest in the Joint family property cannot pass to the alienee. But the wife not being in a position to challenge the alienation and not being in a position to avoid the alienation, she cannot claim that her Interest in the Joint family property such as it is has not passed by the alienation made by her husband. Although it may be true that a Hindu wife has no interest in Joint family property and she has no right to challenge the alienation, it is equally true that on a partition between her husband and her sons she is entitled to a share equal to that of her son. It is the basic principle of Hindu law that a Hindu wife is protected and safeguarded on a partition taking place between her husband and her sons, and although she is not recognised as a coparcener on a partition taking place she is given almost the same right as that of a coparcener because she receives a share equal to that of her son. Although the right in the Joint family property which a coparcener has is not enjoyed by the wife, it may be said that she has an inchoate right in the joint family property and the inchoate right materialises when a partition sakes place when she becomes entitled to a share equal to that of her son. Broadly speaking, the question resolves itself into this. When a father or a karta of a Joint Hindu family unauthorlsedly alienates Joint family property, is he entitled not only to alienate his own share but also the inchoate share of his wife? It must be borne in mind that the original principle of Hindu law was that a father or a karta could alienate joint family property only for legal necessity. If the alienation was unauthorised he could not even alienate his own share or his own interest. This original principle of Hindu law has been departed from by reason of a series of Judicial decisions, but in our opinion the exception engrafted upon the original principle of Hindu law must be strictly restricted to the alienation being upheld to the extent that the alienation affects the interests of the alienor. What Mr. Datar is contending for is that not only must the alienation be upheld to the extent of the interest of the father, but also to the extent of the Inchoate interest of the wife. That is a proposition which cannot be accepted either on principle or in equity or justice, and unless there is strong authority in sup, port of such, a proposition it is not possible for us to countenance it.