Varma, J.:— This is an appeal on behalf of defendant no. 1 in a suit for declaration of the plaintiff's right over the suit lands and for confirmation or, in the alternative, for recovery of possession of the said lands.

The facts of the case are well summarised by the lower appellate Court. One Madan Mohan had a money decree against one Amritlal Bahidar. In the execution of that decree 4-annas gounti share of Amritlal with appurtenant bhogra lands in village Ainthapali had been attached and sold, but before the confirmation of the sale one Labanidhar Meher purchased 3-annas share out of the said 4-annas with bhogra lands mentioned in schedule A of the plaint by a registered kebala, dated the 19th of June, 1924, which was subsequently corrected and substituted by another deed, dated the 15th July, 1924. Labanidhar got possession through Court and got his name entered in respect of the said share in the Collectorate, and was also recorded in the Hamid Settlement. The plaintiff, thereafter, purchased the said share with the lands mentioned in schedule A from Labanidhar by a registered sale deed, dated the 10th of January, 1930, and got possession over the lands and also got his name entered in the Collectorate in respect of the purchased share. The plaintiff's case was that out of the lands mentioned in schedule A to the plaint, the defendant no. 1 began to interfere with his possession by encroaching upon seventeen Hamid plots, described in schedule B to the plaint, comprising an area of 3.09 acres. The plaintiff alleged that the defendants had no manner of right over the suit lands and they were trespassers thereon, and he, therefore, filed the suit as aforesaid.

In order to understand the defence, it is best to give a brief genealogy of the family of the defendants. One Gobind Bahidar had four sons—Jagannath, Lokanath, Ramprasad and Bhagwat Prasad (defendant no. 1 and defence witness no. 7 in the suit); Jagannath had a son Madhusudan (who is now dead) who got two sons Nandlal (now dead) and Amritlal; Loknath's son Biseshwar is D.W 4 in the suit, and another son named Maithili; Ramprasad had no issue; and Bhagwat Prasad's son is Shibcharan, who is defendant no. 2. The case for the defence was that they were not aware of any attachment or sale of the property of Amritlal or of any such sale to Labanidhar, or any purchase by the plaintiff from Labanidhar; that the bhogra lands bearing Hamid's plots nos. 138, 388, 413, 414 and 512 out of B schedule lands are of the joint property which belong to defendant no. 1 and his three brothers; that on the 22nd of May, 1916, Loknath Bahidar himself and on behalf of his two minor sons, Bisheshwar and Maithili, and Madhusudan on behalf of himself and his two minor sons executed a mortgage bond in favour of one Musammat Parbati Bui for a consideration of Rs. 310. These lands are mentioned in schedule C of the written statement and include twelve of the Hamid plots mentioned in schedule B. One Bankatswami was also one of the mortgagees with Parbati Bui, but the money really belonged to Musammat Parbati, and after Bankatswami died Loknath Bahidar and his sons redeemed the mortgage and were thus relegated to the position of the original mortgagee, and afterwards they gave lands in usufructuary mortgage to the defendants for a consideration of Rs. 410 by a registered bond, dated the 8th of January, 1925, the bond having been executed in the name of defendant no. 2 only. The defendants allege that the plaintiff cannot get possession over twelve out of the seventeen plots in schedule B without redeeming the defendant's mortgage of 1925 and paying them Rs. 410 the full consideration of the said bond. They also allege that the plaintiff was not entitled to get possession of the remaining five plots for the reason that they are joint family property.

The Munsif found that so far as the five plots were concerned, those mentioned above, they did not form part of the joint property of defendant no. 1 and his brothers and, therefore, the plaintiff was entitled to get possession of the same unconditionally, but about the other twelve plots the plaintiff was put to terms and was held entitled to recover possession on payment of Rs. 310 to the defendants. The plaintiff appealed, and there was a cross-objection also to the effect that the five plots were the joint property of defendant no. 1 and his brothers and that the plaintiff was not entitled to recover possession of the remaining twelve plots without paying the full consideration of Rs. 410. The lower appellate Court formulated two points for consideration, namely, (1) whether the five plots mentioned above are the joint property of the brothers as alleged by the defence; and (2) whether the plaintiff is to be put to any terms before he can be entitled to recover possession of the remaining twelve plots out of schedule B.

So far as the first point is concerned, there was not much controversy before the lower appellate Court, nor was there any controversy before us, and the Court below rightly decided that these five plots were not the joint property of defendant no. 1 and his brothers and, therefore, the plaintiff had his right, title and interest in these plots. The whole controversy ranges round the twelve plots in the suit. The lower appellate Court has come to the conclusion that the first mortgage bond being without legal necessity, although Amrit Lal was born subsequently, yet he could challenge it, and the bond being void, the position of subrogation would not arise, and, therefore, the plaintiff could not be put to any terms. The lower appellate Court decreed the suit of the plaintiff in full and dismissed the cross-objection. Defendant no. 1 has now come up in second appeal.

Mr. S.N Sen Gupta, on behalf of the appellant, has raised the point that as Madhusudan's son Nandlal died without filing any suit, Amritlal, his younger brother, has no right to challenge the mortgage by Madhusudan. It may be noted that Amritlal was born in 1917, Nandlal died after 1922 soon after Madhusudan's death in 1922, and as the purchaser claims his title through the vendee of Amritlal he could not have any greater right than Amritlal himself. Moreover, as this was a suit for recovery of possession the suit was barred by limitation, counting the period of limitation from the date of the mortgage dated the 22nd of May, 1916. So far as the first point is concerned, the case is covered by the decision in Bhup Kuar v. Balbir Sahai where it was laid down that 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. If, however, an alienation was made by a father without necessity and without the consent of sons then living, it would not only be invalid against them but also against any son born before they had ratified the transaction, and no consent given by them after his birth would be binding upon him. Here it may be noted that Nandlal died when Amritlal was about five or six years of age, and Amritlal was seven years of age when the kebala Exhibit 2-a was executed on the 19th of June, 1924, in favour of Labanidhar. Nandlal had died without having ratified the mortgage alienation, and, therefore, on the authority of Bhup Kuar's case it appears to me that it was open to Amritlal to raise the question of legal necessity, and, therefore, it appears that the interest of Amrit Lal in the joint family property which he got when Madhusudan and Nandlal were alive and which passed on to him after the death of Madhusudan and Nandlal by survivorship was not affected by the aid mortgage.

The defendants in this case claim their right on the basis of Exhibit A which was executed by Loknath on the 8th of January, 1925. It is said that this bond was executed in favour of defendant no. 2 out of which a sum of Rs. 310 was paid to the original mortgagee in Exhibit A-1, and the remaining Rs. 100 had been taken by Loknath and his sons for other purposes. Therefore, Loknath had been subrogated to the position of the original mortgagee Musammat Parbati, and in that position he had the rights of the mortgagee against the co-mortgagors and was entitled to contribution from the co-mortgagors; but Amritlal was not bound by that mortgage.

Mr. Sen Gupta, however, urges that the suit of the plaintiff is barred by limitation, and for that purpose he has relied on the decision in Ranodip Singh v. Parmeshwar Pershad where their Lordships of the Judicial Committee held that sections 6 and 7 of the Indian Limitation Act do not give a fresh period of limitation inasmuch as in order to take advantage of section 6, the person who wants to take advantage of it must be a person entitled to institute the suit at the time from which the period of limitation was to be reckoned. He has also cited the decisions in Maddali Visweswara Rao v. Maddala Surya Rao and Minor Pappu Reddi v. Appaji Nsayakkar and he says that as the time from which the period of limitation was to be counted was in the year 1916, the present suit was barred by limitation. As against this, it has to be said that this question was never mooted in the Courts below. Moreover, there does not seem to be any continuity, as pointed out by Mr. B.K Ray, between the mortgage of 1925 and the earlier mortgage of 1916, and as the trespass is to be taken from the year 1925, the suit, which was filed in 1936, was well within time. So this point also fails.

The next point was on the question of putting the plaintiff to terms before he could be entitled to recover possession of the twelve plots of land, and on this point a number of cases have been cited. But, as has been pointed out by the Court below, when the right of Amritlal was not affected at all no question of putting the plaintiff to terms arises.

All the points raised on behalf of the appellant fail, and the appeal must, therefore, be dismissed with costs.

Fazl Ali, J.:— While agreeing with the order proposed by my learned brother I wish to add a few words in regard to the only difficult point which arises in this case, namely, whether Amrit Lal could challenge the mortgage deed executed by Madhusudan. As my learned brother has pointed out Amrit Lal was born in 1917, that is to say, after the date of the mortgage deed and at the date when the deed was executed Madhusudan had only one son Nand Lal who died in 1922. The point to be considered is whether Amrit Lal is entitled to challenge the mortgage in question though it was not challenged by Nand Lal. It has been found by the lower appellate Court that the mortgage executed by Madhusudan was not justified by legal necessity nor was there any antecedent debt to be paid. The mortgage deed, therefore, could have been questioned by Nand Lal. The view which has been consistently taken in a number of cases is that when an alienation is made by a father or other manager without necessity and without the consent of sons or other co-parceners then living, it would not only be invalid against them, but also against any son or co-parcener born before they had ratified the transaction. It is said that this view has been questioned in Maddali Visweswara Rao v. Maddala Surya Rao and the correctness of it is open to doubt in view of the decision of the Privy Council in Lal Bahadur v. Ambika Prasad. As to the last case the comment made in Mayne's Hindu Law (Tenth edition—p. 512) is as follows:—

“The point was not considered and it may not be right to regard the observation as a decision on the question. It would be against the whole current of Indian authorities which were neither referred to nor considered and cannot therefore be deemed to be over-ruled. If, however, the observation means that co-parceners born in the family subsequent to an alienation before the death of the other co-parceners 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 Privy Council in Ramkishore v. Jainarain”.

I agree with the learned author that there is nothing in the decision of the Judicial Committee in Lal Bahadur v. Ambika Prasad to justify the view that the old Indian decisions were meant to be overruled. The principle underlying those decisions was merely this that though the unborn son had no right in the family property at the time of the alienation, yet on his birth he acquires a share in the family property as it then stands. If a previous alienation was validated by consent or failure to set it aside in time on the part of the other members of the family then in existence, the son who is born afterwards cannot question it because the alienation is no longer questionable and the property has validly passed out of the hands of the family. If, however, the alienation is still open to challenge, then it must be open to challenge by the entire co-parcenary which is interested in the property and which is continually enlarged by births as it is diminished by deaths. With great respect I am not prepared to follow the decision of the Madras High Court in Maddali Visweswara Rao v. Maddala Surya Rao because it is opposed to the whole current of Indian authorities.

K.D

Appeal dismissed.