Stanley, C.J and Banerji, J.:— The question raised in this appeal is whether a member of a joint Hindu family, who was born after the alienation of the family property by another member of that family can question the validity of that alienation. The facts are these.— One Bhagwan Das acquired certain property under a mortgage in 1873. He had four sons, Nainsukh Das, Gulzari Mai, Hazari Lal and Kishan Lal. Nainsukh Das, after the death of his father, purchased from the mortgagor his equity of redemption jointly with his son, Madho Earn. So that the absolute ownership of the property was acquired by Nainsukh Das and Madho Ram. Gulzari Mai, the brother of Nainsukh Das, brought a suit and obtained a decree for a fourth share of the property. After this, on the 10th of October, 1891, Madho Ram sold the remaining three-fourths share to the defendant No. 1. The plaintiff, who is one of the sons of Kishan Lal, brought the suit which has given rise to this appeal for a twelfth share of the property on the ground that the sale by Madho Ram was not binding on him.
The court of first instance dismissed the suit, holding that at the date of the sale impugned by the plaintiff he had no interest in the family property, he not having been born at that date, and that therefore he had no right of suit. This judgement was affirmed by the lower appellate court and on appeal to this Court the decree of the lower appellate court was affirmed.
The plaintiff has preferred this appeal under the Letters Patent. The learned vakil for the appellant in support of the contention that the plaintiff is entitled to maintain the suit, relies upon a passage in the Mitakshara to which referecce is made in the judgement of our learned colleague. That passage in our opinion does not support the plaintiff's contention. He further relies upon a decision of the Calcutta High Court in Hurodoot Narain Singh v. Beer Narain Singh. That case in our opinion has no bearing upon the question before us. There it was held that a Hindu father had no power to settle ancestral property by conveyance in his lifetime or by a will to take effect after his death without the consent of all his sons living at the time; and where such a settlement was not assented to by the sons living at the time and another son was afterwards born, no subsequent assent of the former would be binding on the latter. That is not the case here. The learned vakil also relies upon a dictum of the learned Judges who decided the case of Bunwari Lal v. Daya Shunker. The dictum is to the effect that an alienation, if invalid, because made without the consent of all the co-parceners then in existence, can be set aside even at the instance of another co-parcener who was born subsequent to the alienation. The authority cited for this view is the case of Hurodoot Narain Singh v. Beer Narain Singh, to which we have referred. That case, as we have pointed out above, did not decide the question whether an alienation validly made at a time when a co-parcener was not in existence could be questioned by such a co-parcener. It seems to us to be clear that a plaintiff can question the validity of an alienation of such property only in which he had an interest at the date of the alienation. If his interest came into existence subsequently to the alienation, he cannot question the validity thereof. As Mr. Mayne observes in is well-known work on Hindu Law, 7th edition, p. 449, “a son cannot object to alienations validly made by his father before he was born or begotten, because he could only by birth obtain an interest in property which was then existing in his ancestor.” Hence, if at the time of the alienation there had been no one in existence whose assent was necessary, or if those who were then in existence had consented, he could not afterwards object on the ground that there was no necessity for the transaction. The same view was held by this court in Chattarpal Singh v. Natha. In that case Blair and Burkitt, JJ., held that the plaintiffs, not being in existence at the date of the mortgage which was impugned in that case, had no right or interest in the property and were not therefore entitled to possession of it. As the alienation now in question was made so far back as 1891, the presumption would be, in the absence of any evidence to the contrary, that it was made with the assent of the other co-parceners then alive. This presumption is strengthened by the fact that the plaintiff's father, who is still alive, never questioned the validity of the transaction. Under these circumstances we are of opinion that the view taken by our learned colleague in this case is perfectly correct and is in accordance with Hindu Law. We accordingly dismiss the appeal with costs.
Appeal dismissed.