RAMCHANDRA MULCHAND Vs. BHAGWAN GOPAL

JUDGEMENT

(1.) The four plaintiffs in the suit from which this appeal arises are brothers and sons of defendant 2. They filed the suit for a declaration that the two mortgages dated 16-6-1922 and 26-6-1925, executed by defendant 2 in favour of defendant 1 were not binding on the plaintiffs share in the property in suit. The plaintiffs case was that the property was ancestral property and the alienation was not made for legal necessity. The trial Court held that plaintiffs 3 and 4 were born after the date of the alienation and, therefore, they could not challenge the alienation of their father. With regard to plaintiffs 1 and 2, it held that the alienation was bad and gave a declaration that the alienation was not binding on the one-half share of plaintiffs 1 and 2 in the suit property. There was an appeal to the learned Assistant Judge, and that appeal was dismissed. There were cross-objections filed by the plaintiffs urging that the plaintiffs share was not one-half but two-thirds in the property in suit and the trial Court should have held that the mortgage was not binding on the two-thirds share. The cross-objections were also dismissed.

(2.) Before me, Mr. B.G. Thakor for the appellant has only urged the question of limitation. The position with regard to limitation is this. Defendant 1 filed a suit to enforce the two mortgages and in this suit a compromise decree was passed. Then defendant 1 applied to execute the decree by filing a darkhast. It is urged by Mr. Thakor that it was open to the plaintiffs to challenge the alienations at the date when they were made, namely, 16 June 1922, and 26 June 1925, and limitation began to run from those two respective dates, and the suit having been filed on 20 April 1940, the plaintiffs suit was out of time. Now it is true that it was open to the plaintiffs as coparceners to challenge the mortgages executed by their father, but they did not choose to do so. Their cause of action in the present suit is not the execution of the mortgages but the application for execution by defendant 1 whereby he threatened to bring the property in suit to sale. Therefore, the cause of action accrued to the plaintiffs when defendant 1 filed the application for execution. As the mortgagee defendant 1 did not go into possession and merely a document was executed by defendant 2, the plaintiffs chose to ignore the mortgages. It was only when the joint family property was threatened by execution proceedings launched by defendant 1 that a cause of action accrued to the plaintiffs and they filed the suit. In my opinion Mr. Thakor's contention must fail and the suit is within time and, therefore, the appeal must fail.

(3.) Mr. Chitale has urged before me the same cross-objections which he urged before the lower appellate Court, and it raises a very interesting question of Hindu law. If a coparcener alienates a portion of an ancestral property without legal necessity and which alienation in Hindu law is bad, it is competent to the other coparceners to challenge that alienation; and to the extent that the alienation goes beyond the share of the coparcener who alienated the property, the alienation would be set aside. Now, in this case, the father defendant 2 alienated a portion of the joint family property. The two sons, plaintiffs 1 and 8, who were alive at that date come to Court and challenge the alienation and the alienation has been proved to have been bad. Therefore the share of the coparceners who are contesting the alienation would not be bound by that alienation. The question, therefore, is what is the share of plaintiffs 1 and 2 in the property? Now it is a very well-recognized principle of Hindu law that what has got to be ascertained is the shares of the coparceners at the date of the alienation and not at the date when the alienation is challenged. Now when the two mortgages were executed, the joint family consisted of defendant 2 and his two sons, plaintiffs 1 and 2. At that time the wife of defendant 2 was also living. What Mr. Chitale says is this: he says that the joint family consisted of three coparceners and the share of his clients must, therefore, be two-thirds, as against one-third of the father and therefore both the lower Courts were wrong in holding that only one half share was saved from the alienation. What the Court should have held, so says Mr. Chitale, was that two-thirds share in the property in suit was not affected by alienation. Now what Mr. Chitale overlooks is this: under the Mitakshara law no coparcener can say that he has a specific share in ancestral property. The position is different from what obtains under the Dayabhaga law. It is only on partition that shares can become specified. Therefore in order to ascertain what the shares of the plaintiffs were when the alienation took place, I have to assume what the shares would be on a partition; and if there was a partition when the alienation was made as between defendant 2 and his sons plaintiffs 1 and 2, the mother of plaintiffs 1 and 2, would have had a share equal to the shares of plaintiffs 1 and 2. Therefore, on a partition at the date of the alienation, plaintiffs 1 and 2 would have only received one-half share in the property in suit. Mr. Chitale contends that I must ignore the share of the wife because he urges that a wife is not a coparcener and she is not entitled to challenge the alienation and, therefore, all that has got to be considered is the share of the coparceners, namely, defendant 2 and plaintiffs 1 and 2. This argument is based on a misconception. It is perfectly true that the Hindu law does not give a right to a wife to challenge an alienation made by her husband. It is equally true that the Hindu law does not give a right to a wife to ask for partition. But the Hindu law does give the wife a share equal to her sons if there is a partition between her husband and her sons. When the sons challenge the alienation and their shares are to be determined, it is only on the basis of a partition that these shares can be determined; and, as I have pointed out if there was a partition when the father executed the mortgages, the wife would undoubtedly have received a share and the only share that plaintiffs 1 and 2 would have received would have been one-half share in the property in suit.