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, 16th June 1922, and 26th June 1925, and limitation began to run from those two respective dates, and the suit having been filed on 20th 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.
4. I should like to refer to two or three cases which were cited at the bar. There are two decisions of our High Court. One is reported in 41 Bom. 347 In that case the plaintiffs Paragauda and Babagauda with their father Basagauda constituted a joint Hindu family. Defendant 2, the father and the head of the family, effected a sale of certain ancestral property in favour of defendant 1 and the plaintiffs sued to recover possession of the land or, in the alternative, to get their two-thirds share by partition by metes and bounds alleging that the land was the ancestral property of the family. The plaintiff Babagauda was born after the date of the alienation. The Court of Appeal consisting of the Chief Justice Sir Basil Scott and Mr. Justice Heaton held that the after-born son could not challenge the alienation and that defendant 1 had acquired only the one-half share in the alienated property to which defendant 2 was entitled at the date of the alienation. It is urged that on the facts of this case, although the wife of defendant 2 was alive, the Court did not take into consideration her share in determining the shares of defendant 2 and the plaintiff. Now from the facts it does not appear as to whether Babagouda was the son of the same wife as Paragauda, and it may be that at the date of the alienation the father was a widower and Babagauda was born to a second wife of defendant 2. In any case the point which I have to decide here was not considered in that case. The other decision is 40 Bom. L.R. 1029In that case plaintiffs 1 to 6, who were brothers forming a joint Hindu family with their father, brought a suit to set aside an alienation made by their father which was not for payment of antecedent debts or for legal necessity. At the time of the alienation, the joint family consisted of plaintiff 1 and his father, mother and a step-brother. Plaintiffs 2 to 6 were born subsequent to the date of the alienation; and the Court of Appeal consisting of Mr. Justice Broomfield and Mr. Justice Sen held that plaintiff 1 was entitled to set aside the alienation only to the extent of his one-fourth share in the property alienated and that the other plaintiffs could not question its validity. Therefore it would be noticed that the share of plaintiff 1 was arrived at on the basis that his mother had a one-fourth share on the basis of a partition at the date of the alienation. To my mind, this is a direct authority on the matter I am considering, and being a decision of a Court of Appeal, it is binding on me. Although the question is not explicitly discussed either by Mr. Justice Sen or by Mr. Justice Broomfield, the decision is inexplicable except on the basis that the Bench considered that in order to determine the share of plaintiff 1 at the date of the alienation, it had to assume a partition and on that partition it took the view that the mother would have a share, and it was on that basis that plaintiff 1 was given a one fourth share; and it is interesting to note that Mr. Justice Broomfield in his judgment at p. 1039 observes:
The law in Bombay as settled in this Presidency by Naro Gopal v. Paragauda1 is that the alienee gets the share which the alienor would have got if a partition had taken place at the date of the alienation.
Therefore, the principle, with which, with respect. I entirely agree, enunciated by Mr. Justice Broomfield is that the alienee gets that share of the alienor which he would have got in the joint family property if a partition had taken place at the date of the alienation. Applying that principle to the facts of this case, it is clear that the share of the plaintiffs at the date of the alienation would be the share which they would have received if a partition had taken place when the father mortgaged the properties and that share would only have been one-half and not two-thirds.
5. Mr. Chitale has also relied on a decision reported in 20 Cal. 682.3 In that case it was held that the right of a widow to a share in lieu of maintenance only arises when there is a partition of the joint family estate in the sense that it ceases to exist as a joint estate. Hence upon a partition enforced by a stranger in respect of property which forms only one item of the joint estate, the widow is not entitled to such share, if notwithstanding such division, the main estate remains undivided. Now two or three things ought to be noticed in this case. First of all, the parties were governed by the Dayabhaga and not by Mitakshara. Secondly, the alienee was not suing for partition of the whole of the joint family property but only for a specific share, and even so the Court was at pains to observe that it was on the special facts of that case that it came to the conclusion that the widow was not entitled to a share. In my opinion that case is not of much assistance in deciding the quite different facts which I have before me. In my opinion, therefore, both the lower Courts were right in coming to the conclusion that the declaration sought by the plaintiff could only apply to the one-half share in the property in suit and not to the two-thirds share. In the result both the appeal and the cross-objections fail and are dismissed with costs.