KOTHA SESHAMMA Vs. PITTALA VENKAYYA

JUDGEMENT

(1.) Defendants 6 to 12 are the appellants in this Second Appeal, which arises out of a suit filed on 11th May, 1949, by the plaintiffs for recovery of possession of land sold to them by defendants 1 to 5 under different sale deeds on nth February, 1946, or in the alternative for a decree directing a refund of the price of Rs. 500, paid to the vendors. The trial Court decreed the suit in respect of an 1/5 share of the lands and directed defendants 1, 4 and 5 to refund Rs. 400, to the plaintiffs in respect of the remaining 4/5th share not decreed to them. On appeal, the lower appellate Court granted the plaintiffs a decree for 4/5th share of the lands and Rs. 100, by way of refund in respect of the remaining 1/5th share denied to the plaintiffs. In this Second Appeal, defendants 6 to 12 object to the appellate decree in so far as it awarded an additional 3/5th share to the plaintiffs.

(2.) The facts, so far as they are material to the point of law argued before me are these. Defendants 2 to 5 are the sons of the first defendant, who sold under Exhibit B-1, 12 acres and 75 cents of ancestral lands to one A. Simhayya on 30th January, 1925, for Rs.1,150. At the time of the sale, the 2nd defendant was in his mother's womb and defendants 3, 4 and 5 were born years later. On attaining majority the 2nd defendant brought Original Suit No. 61 of 1943 on the file of the Court of the Subordinate Judge, Guntur, for recovery of his 1/5th share of the lands alienated by his father impleading his father (present first defendant) his three minor brothers (present defendants 3 to 5) and the successors-in-interest of the alienee, A. Simhayya (present defendants 6 to 12) as defendants to that suit. On 17th February, 1945, a preliminary decree for partition was passed awarding the present 2nd defendant an 1/5th share of the lands, the alienation by his father under Exhibit B-1 having been held not to be binding on him. No relief was granted to defendants 3 to 5 in the suit. There was also no division of the lands by metes and bounds. On nth February, 1946, the father and sons, defendants 1 to 5 purported to convey to the plaintiffs under different sale deeds the entire extent of the lands sold under Exhibti B-1. Defendants 3 to 5 being minors at the time, their mother acted as their guardian and effected the sales in favour of the plaintiffs. It is clear that so are as the 1/5th share of the first defendant is concerned, it passed to A. Simhayya under Exhibit B-1, dated 30th January, 1925 and the subsequent sale dated 11th February, 1946, by the first defendant could not convey any title to the plaintiff. It is equally clear that the plaintiffs would be entitled to the 15th share of the 2nd defendant, who obtained a decree for that share in O.S. No. 61 of 1943 and who sold his interest to the plaintiffs under Exhibit A-3 on 11th February, 1946. The question in Second Appeal is whether the plaintiffs would, in addition, be entitled to the 3/5th share of defendants 3, 4 and 5 purported to be sold by their mother acting as their guardian. Though defendants 3, 4 and 5 were born some years after the sale by their father still, having regard to the fact that their elder brother, the 2nd defendant, was in his mother's womb on the date of the alienation, they would be entitled to impeach the sale and recover their shares of the family property. In Vasireddi Balachandra v. Lakshminarasimham, (1940)1 M.L.J. 820 : I.L.R. (1940) Mad. 913, 919, 922, the learned Judges, relying on the decision of the Privy Council in Lal Bahadur v. Ambika Prasad, (1925) L.R.52 I.A. 443 : I.L.R. 47 All. 795 (P.C.), were inclined to take the view that a co-parcener born subsequent to an alienation of joint family property is not entitled to challenge the alienation, even though other co-parceners entitled to object were alive at the date of the alienation and had not consented to and validated the alienation. In other words, the learned Judges were of the opinion that the right to challenge alienations of family property by the father was confined to the sons alive at the date of the alienation and the after-born sons cannot attack a prenatal alienation by the father. This view marked a departure from the earlier decisions of the Madras High Court and of the Judicial Committee in Ramkishore Kedarnath v. Jainarayan, (1913) 25 M.L.J 512 : L.R. 40 I.A. 213 ; I.L.R. 40 Cal. 966 (P.C.). The earlier Madras decisions were referred to by the learned Judges in Vast Reddi Balachandra v. Lakshminarasimham, but they felt bound by the latter decisions of the Privy Council in Lal Bhahadur v. Ambika Prasad, to hold that an after-born son was not entitled to impeach an alienation made before his birth, even though at the date of the alienation there was a son in existence who could have impeached the alienation and who did not consent to it. Referring to the scope of the decision in Lal Bahadur v. Ambika Prasad, the learned editor of Mayne's Hindu Law, 10th edition, observed at page 512 :-

(3.) Though the learned Judges in Vasireddi Balachandra v. Lakshminarasimham, (1940) 1 M.L.J. 820 : I.L.R. (1940) Mad. 913, 915, 918 and 922, expressed their disagreement with the above passage in Mayne's Hindu Law, their opinion was obiter and not essential for the decision of the case. In a later decision, the Privy Council upheld the right of an after-born son to challenge the validity of an alienation by their father in these terms :