KASHINATH Vs. BAPURAO

JUDGEMENT

(1.) THE following questions have been referred: Whether an alienation made by a Hindu, who at the date of the alienation had a coparcener living of coparcenary property, can be challenged by an after-born coparcener if such after-born coparcener was born or conceived (a) after the death, (b) before the death of the coparcener living at the date of the alienation. It is to be assumed that the alienation is of a character that opens it to challenge by a coparcener living at the time of the alienation. If this power is not possessed by either class of such after-born coparceners generally is it possessed by any sub-class, e.g. sons of either such class ?

(2.) THESE questions raise points which have been the subject of controversy in India and it appears desirable to consider the case law at some length. In Balwant Singh v. Rani Kishori (1898) 20 All 267 at pp. 284, 285, their Lordships of the Judicial Committee were considering the argument that even in the case of self-acquired property a father had no absolute power of disposition, an argument founded on the Mitakshara (Colebrooke's Translation) Chapter I, Section 1, Clause 27: Though immovables...have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born and they who are yet unbegotten, and they who are still in the womb, require the means of support; no gift-or sale should therefore be made.

(3.) IT has of course long been established that a father at a time when he has no sons may alienate but it should not be overlooked that at one time it was contested that a Hindu father had any such right, even as he has no right to give: Hurodoot Narain Singh v. Beer Narain Singh (1869) 11 WR 480 and Sobharam Teli v. Makdu (1899) 12 CPLR 63. This text and others in the same sense will be found running through all the old cases which developed for Bengal and other parts of Northern India the rule that an alienation by a father was void unless and until ratified by the son. Once it is established that these texts lay down no such legal prohibition the view is more easily taken that such alienations as I shall be considering in this judgment are not void but are voidable. This is the position accepted by Madras and Bombay and in the Central Provinces. It is now established that in Hindu law the rights which a coparcener has, in this connexion, arise, if at all, at the time of conception, not at the time of birth. But the child must be born alive for the inchoate right to be perfected. To avoid cumbrous phraseology I shall, throughout this judgment, speak of a son "being born" when what is meant is a son "being conceived and afterwards born." So "birth" really relates to conception followed by birth. "Son in existence" means son in existence at the time of alienation. "After born son" means son born (in the above sense) after the alienation. I take the following propositions to be well established: (I) A father, though he have sons, may alienate immovable property for value for certain reasons whether the sons consent or not. Prima facie, however, the alienation is not effective, at least as regards the sons' shares, unless the sons consent. But if the sons are competent to consent, and consent and are the only other coparceners, the alienation is good. (II) When a son is born he obtains a share in the joint family property as it existed at the date of birth: Chuttan Lal v. Kallu (1911) 33 All 283 and Bholanath Khettry v. Kartick Kissen Das (1907) 34 Cal 372. If there be, at that date, no family property such a son's coparcenary rights are nil. If that state of affairs has been brought about by a valid alienation by the father before the son's birth it follows that the alienation is of property in which the son has no interest: Narain Das v. Har Dayal (1913) 35 All 571 and Ram Deo Kurmi v. Ram Rathi AIR 1935 All 742. (III) If, on the other hand, the father at the time of alienation of ancestral property has a son he cannot alienate (except in certain circumstances) any share other than his own without that son's consent. If that son does not consent he (the son) has a cause of action which springs into existence immediately the alienation is made. That cause of action enables him to challenge the alienation, save as regards the alienor's share. It lasts 12 years or until three years after the son attains majority whichever is later. (IV) If the son consents, or if the cause of action is allowed to become time-barred, no son born after the consent is given, or after the cause of action is time-barred can sue: Raja Ram Tewary v. Luchmun Pershad (1867) 8 WR 15 at p. 16; Jado Singh v. Mt. Ranee (1873) 5 NWP 113 and Lal Bahadur v. Ambika Prasad (1925) 12 AIR PC 264. (V) The giving of consent puts the alienation in the same category as an alienation made at a time when no coparceners are conceived other than the alienating coparcener ; the barring of the suit bars all because there is only one cause of action, no fresh cause Of action arising with the birth of a new coparcener: Lal Bahadur v. Ambika Prasad (1925) 12 AIR PC 264.