Basil Scott, Kt., C.J.
1. This suit was instituted by the plaintiff's as members of a joint Hindu family of which their father the 2nd defendant was the head to set aside a sale of certain family land being Survey No. 722 measuring 19 acres and 11 gunthas executed by the defendants in favour of defendant 1 on the 19th of September 1901 and to recover possession thereof from the 1st defendant or in the alternative for their 2/3rd share therein by partition or at least for joint possession with the defendant; 1: they alleged that the sale deed was taken from the defendant 2 by undue influence and for no consideration. The learned Judge of the trial Court held that the consideration for the deed was an antecedent debt which though barred by time was acknowledged by the registered sale-deed and further advances aggregating Rs. 1,500 which he held established. He held that even the antecedent debt would authorise an alienation by the father bindjng on the sons and he dismissed the suit with costs.
2. His decree was reversed on appeal the learned appellate: Judge holding that as regards the Its. 1,500 representing the further advances they were not proved to have been made and as regards the Rs. 1,500 in respect of the acknowleged time-barred debt the 2nd defendant must have been influenced unduly by the defendant 1 and could not have given his free consent to its inclusion as part of the consideration. He decreed that the plaintiffs and defendant 2 should be restored to possession of the property in suit. It may be conceded that the learned trial Judge was in error in thinking that a time-barred debt could support an alienation by a father of joint family property even against his sons : see Subramunia Aiyar v. Gopala Aiyar I.L.R. (1909) Mad. 308 and as to the Rs. 1,500 representing fresh advances, it may for the purpose of argument be assumed that the appellate Court was right in holding them not proved: the question however still remains whether the time-barred debt acknowledged by the registered deed was not good consideration for the alienation of the defendant 2 s interest in the property.
3. Upon the findings of the lower appellate Court the plaintiffs are not, or at all events the adult plaintiff is not, bound by the deed and it may to that extent be treated as a nullity : see Uwni v. Kunchi Ama. I.L.R. (1890) Mad. 28 But it is otherwise with the defendant 2 the executing party whose interest is primia facie bound by his deed. Assuming the deed was obtained from him by undue influence it is only voidable at his option. He however has not sought to avoid it. His 'right to file a suit for such a purpose has long since been barred by limitation.- His sons have no right to exercise his option. To hold as has been held by the lower appellate Court that he cannot have done willingly what he has explicitly purported to do in his sale-deed is to make a case which was not open to him and which he never tried to make f or himself. The lower appellate Court has not found tha no moneys were expended by defendant 1 for defendant 2 which could be acknowledged. Such a finding would be impos- sible in view of the defendant 2's admission when called, as a witness on behalf of the plaintiffs. ' I was plaintiff' in Suit No. 415 of 1887. Naro Gopal (defendant 1) used to assist me with money in that suit. I passed a document for that amount.' The learned Judge says that the documents show that the defendant 2 was at least reckless in matters of business and incapable of exercising ordinary prudence. That however is no justification for disregarding the terms of Section 19A of the Indian Contract Act and Article 91 of the Indian Limitation Act. The defendant 2 is, therefore, bound by la's deed and the defendant 1 is entitled to the defendant 2's interest in the property.
4. We have next to consider what is the interest in the property which passed to the purchaser. Is it the half share to which the defendant 2 was entitled at the date of the sale or the 1/3rd to which but for the alienation the defendant 2 since the birth of his younger son would now be entitled As remarked by Sir Charles Farran in Gurlingapa v. Nandapa I.L.R. (1898) Bom. 797. the decisions in pandurang Anandrav v. Bhaskar Shadashiv (1874) 11 B.H.C.R. 72 and Mahahalaya v. Timaya (187S) 12 B.H.C.R. 138 point to the period of alienation as thut at which the rights of the alienee are to be determined but the Court nevertheless in Gurlingapa v. Nan-dapa I.L.R. (1896) Bom. 797 laid down obiter, following the decision of the Madras High Court in Rangasami v. Krishnayyan I.L.R. (1891) Mad. 408 the proposition that a purchaser of a coparcenary share stands in no better position than his alienor and consequently like the latter is liable to have his share diminished before partition by the birth of other coparceners if ho stands by and does not insist on partition.
5. This conclusion appears to be inconsistent with the proposition that an alienation by a joint tenant effects a severance as a result of which the alienee before division by metes and bounds becomes a tenant-in-common : see Jogeswar Narain Deo v. Ram chand Dutt I.L.R. (1896) IndAp 3744; Udaram Sitaram v. Rana Panduji(1875) 11 B.H.C.R. 78. It is also, as pointed out in Chinnu Pilial v. Kalimuthu, Chetti I.LR. (1910) Mad. 47 (in which Rangasami v. Krishnayyan was dissented from), inconsistent with the orders passed by the Privy Council in Baboo Hurdey Narain Sahu v. Pandit Baboo Rooder Perkash Misser I.L.R. (1888) IA 26. In this state of the authorities we must hold that the defendant 1 acquired the half share in the alienated property to which the defendant 2 was entitled at the date of the alienation owing to the fact that the minor plaintiff was not then born.
6. The plaintiffs are interested, equally in one moiety only of the property in suit. The defendant 2 whose interest is now confined to the other family property, if any, raises no objection to partition being limited to the property in suit. Under the circumstances I do not think the defendant 1 as tenant-in-common of one moiety of the suit land can object to partition : Subramanya Chettyar v. Padmanabha Chettyar I.L.R. (1896) Mad. 267; Ram Gharan v. Ajudhia Praaad I.L.R. (1905) All. 50.
1. My only difficulty in the case is this:
If there wan no consideration at all for the sale of the property by defendant 2 to defendant 1 in 1901, the sale is invalid and can be set aside at the instance of the plaintiffs. For a Hindu coparcener can only make a valid alienation of his share or part of his share in an undivided Hindu family property if he does so for valuable consideration. This aspect of the case is one which was presented in this Court, but was not considered by the Court of first appeal. The Judge of that Court dealt with the question of consideration more generally. He asked himself the question whether the consideration stated in the sale-deed was proved. He found that it was not and he further found that it was not proved what the consideration actually was. But he did not ask himself the question whether it was shown that there was not any consideration at all. There are indications in his judgment that he was not of opinion that there was no consideration whatever for the sale. He does not repudiate or contradict the finding of the trial Court that there was or at least had been an antecedent debt payable by the defendant 2 to defendant 1. Therefore we can find for ourselves that there-was valuable consideration. That, I think, is an appropriate way out of the difficulty which confronts me and moreover it is a way which brings about a conclusion consonant with law and justice.
2. I agree that by the sale, defendant 2 acquired a share of one-half not of one-third only in the land sold. But he acquired a right to partition not a right to possession prior to partition. As their Lordships of the Privy Council stated in the case of Baboo Hurdey Narain Sahu v. Pundit Baboo Roodev Perkash Misser I.L.R. (1883) IndAp 30 'according to the judgment of their Lordships in Deendyal's case I.L.R. (1877) IA 247, the decree, which ought properly to have been made would have been that the plaintiff...should recover possession of the whole of the property, with a declaration that the appellant, as purchaser at the execution sale, had acquired, the share and interest of Shib Perkash Misser and was entitled to take proceedings to have it ascertained by partition.' Still in this case the plaintiffs have sued in the alternative for partition so the theoretical objection to a decree for partition disappears.
3. There must therefore be a decree for partition in equal moieties; each party to bear his own costs throughout.