RAMKISAN AMBADAS MAHESARI Vs. DAMODHAR

JUDGEMENT

(1.) 1. This is a suit for foreclosure of a mortgage dated 11th April 1923 executed by two persons Balkrishna and defendant 1 Damodhar. The latter acted in the transaction on behalf of his two sons, Laxmikant and Padmanabha, who are defendants 2 and 3 respectively. About two years after this another son, Shridhar, defendant 4, was born to Damodhar. These three sons challenge the transaction as not binding on their shares. The lower Courts have upheld this view and have dismissed the suit against them and their shares in the property. Neither has however specified the extent of these shares. The plaintiff, who was the mortgagee, has appealed against these decisions. The lower appellate Court has accepted the view propounded in Dwarka Das v. Krishan Kishore AIR 1921 Lah 34, Bhup Kunwar v. Balbir Sahai AIR 1922 All 342 and Tulshi Ram v. Babu (1911) 33 All 654. So far as the Lahore case is concerned it merely follows the Allahabad view. The other cases state that since an alienation by an undivided member of a joint Hindu family is invalid except for necessity, any member of the coparcenary can question his alienation, and the question as to whether one son was born at the date of the alienation or not becomes immaterial so long as there are other sons alive to question the transaction. This follows logically from the Allahabad view where no member of a joint Hindu family can alienate his undivided share. But in these Provinces he can; so the Allahabad cases are no guide in this matter. In our Provinces an alienation of this kind is not invalid, so it must stand except as against the shares of those entitled to challenge it.

(2.) IT has been laid down in Moti v. Kanhya (1909) 5 NLR 181 that the right to challenge such an alienation is a personal right which does not pass to other sons on the death of those entitled in their own right to do so. It follows then that defendant, 4, Shridhar, cannot avail himself of the privilege which belongs to his brothers, as it is personal to them. He must show a right in himself; and it is clear he has none as an afterborn son. His interests are limited to those of the family at the date of his birth; and since the family estate was then burdened with a mortgage he can only get it subject to that burden. The real question is when are the shares to be calculated, at the date of the alienation or the date of suit. In the one case the mortgagee would get 10 annas 8 pies, and in the other 12 annas. Mulla at p. 303 of his Hindu Law indicates that the calculation should be at the date of the alienation. I need not decide the matter hare as the appellants have accepted that position in the fourth ground of their appeal, and that is the position least favourable to them. Since this appeal is being heard ex parte I need go no further than accept their contention.