(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 : -
"the point was not considered and it may not be right to regard the observation as a decision on the question. It would bt against the whole current of indian authorities which were neither referred to nor considered and cannot therefore be deemed to be overruled. If, however, the observation means that coparceners born in the family subsequent to an alienation beiore the death of the other coparceners who could challenge it, have no right to the property and consequently no right to challenge the alienation, it would conflict with what was said by the board in ramkishore v. Jainarain, (1913) 25 m. L. J. 512 : l. R. 40 i. A. 213 : i. L. R. 40 cal. 966 (p. C.) 1, as well as with the cardinal principle of hindu law."
(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 :
"it is asserted that a member of a joint family must be content with the family estate as he finds it at his birth or at any rate he cannot complain of anything done before the period of gestation. Upon this rule, it is admitted, there is engrafted an exception to the effect that if the child who objects to an alienation of the property comes into existence or is conceived after the alienation, but during the life - time of a child born or conceived before the alienation, then that overlapping of the two lives enables the later born child to contest the validity of the father's act."
(4) Akhara udasi nirwani v. Surajpal singh, (1944) 2 m. L. J. 395, this was the view accepted in madras before vasireddi balachandra v. Lakshminarasimham, and i follow it as did the learned judges in visweswara v. Surya rao, (1935) 70 m. L. J. 360 : i. L. R. 59 mad. 667. I hold that an improper alienation of joint family property by a father or manager can be set aside at the instance of an after - born coparcener provided there was in existence at the date of the alienation some coparcener who could challenge it and he had not consented to the alienation or ratified it before the after - born son was begotten.
(5) Granting that defendants 3 to 5 had a right to set aside their father's sale exhibit b - 1, the further question is whether the right can now be exercised by them of their alienees, the plaintiffs. Though the present defendants 3 to 5 were defendants 2 to 4 in o. S. No. 61 of 1943 instituted by the 2nd defendant, they allowed the suit to proceed ex parte after filing a written statement supporting their elder brother and claiming their 3/5th share on the ground that the sale by their father under exhibit b - 1 was not binding upon their shares. The judgment and decree in that suit show that only the present 2nd defendant (plaintiff in that suit) was awarded an 1/5th share of the lands alienated by his father, which was all that he claimed in that suit. Though a division of the lands into five equal shares was directed for the purpose of awarding an 1/5th share to the 2nd defendant, no relief was granted to defendants 3 to 5. There was no appeal by them against the decree.
(6) It is open to coparceners to recover possession of ancestral or joint family property wrongfully alienated by the father or manager on the footing that they were entitled to the estate as a joint undivided one. If, however, the non - alienating coparcener challenges a sale made by the father or manager of joint family property and institutes a suit to recover only his share of the property alienated, there by impliedly admitting the right of the alienee to the other shares in that property, there is no reason why the other coparceners should be prejudiced thereby or lose their right to a similar share. If the alienation is vulnerable, the other coparceners who have a right of suit could attack it alone. Though the after - born son's right to sue is dependent upon the existence of a coparcener at the time of the alienation, he acquires an interest in the family property by reason of his birth in the family. Where the father or manager makes an improper alienation, the family property is not effectively carried away from the family except as regards his share and the other coparceners are interested in the family property not validly alienated.
(7) Though the right of the after - born coparcener to sue to set aside an improper alienation of the father or manager depends on the existence of a coparcener at the time of the alienation, still the after - born coparcener does not derive his right to sue through or from the coparcener in existence but by the factum of his birth in the family. Therefore the fact that the 2nd defendant had sued for and obtained a decree for his one - fifth share in the properties improperly alienated by his father does not bar a suit by the after - born sons for recovery of their shares of the property on the footing that the alienation is invalid. This by no means settles the question of the period of limitation within which the after - born son can sue and that is the question that next falls to be considered.
(8) Article 126 of the limitation act provides a period of 12 years for a suit by a son to set aside his father's alienation of ancestral property, the starting point being the date when the alienee takes possession. Since the alienee from the father took possession of the property in 1925, a suit by the sons for recovery of their shares would be barred by 1937 unless the extension of time provided by sections 6 and 8 of the limitation act can be availed of by them. Shri neti subramaniam strenuously argued that the cause of action for defendants 3 to 5 arose only on their birth and that as defendants 4 and 5 were still minors and as the 3rd defendant was only 19 years old at the time of suit, the claim of the plaintiffs was not barred by limitation.
(9) Under article 126 of the limitation act, time begins to run from the date the alienee takes possession and under section 9 once time begins to run, nothing stops it. There may however be an extension or enlargement of the period of limitation in particular cases, as for instance, in the case of minors or other persons under legal disability under sections 6 to 8 of the limitation act. Now it is only a person who has a right to sue at the time from which the period of limitation is to be reckoned, that is to say, a person who is entitled to sue at the commencement of the period of limitation that can seek the aid of section 6. The section does not apply to a person who is not entitled to sue at the commencement of the period of limitation. See general a. F. And l. Life assurance corporation v. Jan mahomed, (1941) 1 m. L. J. 88 : l. R. 67 i. A. 416 : i. L. R. (1941) bom. 202 (p. C.). Persons not in existence at the time when limitation began to run cannot invoke section 6 of the limitation act. See rano dip singh v. Parameshwar prasad, (1924) 48 m. L. J. 29 : i. L. R. 47 all 165 : l. R. 52 i. A. 69 (p. C.). In the case last cited it was held that a son seeking to challenge his father's alienation but who was not in existence at the date when the alienee took possession, did not fall within the description of a person " entitled to institute the suit at the time from which the period of limitation is to be reckoned " within the meaning of section 6. The further contention of mr. Neti subramaniam is also negatived by this decision, which held that the cause of action for a son's suit to set aside an improper alienation by the father arose when the alienee took possession and that the subsequent birth of a son "did not create a fresh cause of action or a new starting point from which limitation should be reckoned ". Though the judgment of the judicial committee is brief, the ratio decidendi appears to be this : where a father effects an improper alienation of family property there is only one cause of action for the sons, then existing or thereafter to be born, to set aside the alienation. The cause of action arises to the son or sons in existence at the time of the alienation in a representative capacity for the benefit of themselves as well as other sons that might be born subsequently. The subsequently born sons have the same cause of action as the sons in existence at the time of the alienation and limitation does not start afresh on their birth, vln the case of an after - born son the time from which the period of limitation is to be reckoned is the date on which the alienee took possession and as he was not born on that date and was under no disability on that date, he cannot claim the benefit of section 6 of the limitation act.
(10) Learned counsel for the appellant referred me to decisions where the court had to consider the period of limitation applicable to a suit by an after - born son to set aside his father's improper alienation in cases where the son in existence at the time of the alienation was a minor. Can the after - born son take advantage of the extended period of limitation available by reason of sections 6 and 8 of the limitation act to the son in existence at the time of the alienation or is he bound to sue within 12 years of the alienee taking possesssion of the property ? on this point there has been a difference of opinion. One view is that so long as the cause of action subsists, the after - born son can take advantage of the period of limitation, not because he dervies his right from the existing coparcener whose right to sue is not barred by limitation but because the existence of that right to sue unbarred by limitation makes the cause of action still subsisting and the after - born son can, therefore, sue within the longest period of limitation which the coparcener existing at the time of the alienation has. If the existence of a coparcener clothes an after - born son with a right to sue, though an after - born son cannot claim the benefit of section 6 of the limitation act in his own right, he cannot be deprived of the benefit of the extended period claimable by the coparcener in existence at the time of the alienation. The other view is that the right of the after - born son is not derived from the existence of the coparcener at the time of the alienation. An after - born, son has an independent right to sue on the cause of action which arose when the alienee took possession under the father's invalid alienation and his suit must be brought within 12 years under article 126, unaffected by any extended period of limitation available under section 6 of the limitation act to a coparcener existing at the time of the alienation. The latter view is, in my opinion, more logical and i am prepared to act upon it, though the former view is also supported by authority. See for instance dharu indar pal singh v. Badri das sohan lal, (1943) i. L. R. 25 lah. 287 (f. B.) ; srinivasalu v. Munisami, (1943) 1 m. L. J. 157 : a. I. R. 1943 mad. 378. Whichever view is adopted, the rights of the defendants 3 to 5 became barred when the plaintiffs brought the suit.
(11) The question whether assignees like the plaintiffs could claim the benefit of an extended period of limitation under section 6 of the limitation act available to the assignors was not argued before me. For these reasons i reverse the decree of the lower appellate court and restore that of the trial court with costs here and in the lower appellate court. No leave. Appeal allowed. No leave.