1. These two appeals are by defendants Nos. 2 to 5 and by plaintiffs respectively in a suit for a declaration that the alienations made by defendant No. 1, the father of the plaintiffs, are not binding on the plaintiffs and for possession of the suit property, or in the alternative for partition and possession of the plaintiffs' shares in the suit property which is stated to be a three-fourths share. One of the suit properties, survey No. 32 in the village of Ingalahalli in Hubli taluka, was sold by defendant No. 1 to Adiveyya, father of defendants Nos. 2 and 3 and grandfather of defendants Nos. 4 and 5, on May 10, 1912, and this alienation is the subject-matter of appeal No. 87. At the time of this alienation the members of defendant No. 1's family were himself, his wife, defendant No. 11, plaintiff No. 1 and Rudrappa, defendant No. 1's son by a former wife.
2. The grounds alleged in the plaint for the contention that the alienations are not binding on the plaintiffs are : the partition of the family property in 1924, the absence or inadequacy of the consideration, the absence of antecedent family debts and the immoral and illegal nature of the purposes for which the alienations were made.
3. The contention as to immoral purposes was given up at the hearing and the Trial Court held that the partition was not proved. The contentions of defendants Nos. 2 to 5 that plaintiffs Nos. 2 to 6 who had not been born at the time of the alienation had no right to challenge it and that the alienation was for antecedent debts were overruled by the Trial Court, which also held that Adiveyya had purchased the land without making any inquiry as to the existence of antecedent debts or family necessity ; and it passed a decree in favour of the plaintiffs directing their recovery of a three-fourths share in the suit property. The other alienations in the suit concern survey No. 31/2 and took place in 1924, 1925 and 1928. They affect defendants Nos. 7 to 10 and are the subject-matter of First Appeal No. 164 of 1934.
4. The contentions in appeal No. 87 are that the sale had sufficient legal justification, that the suit was barred by limitation, and that as only plaintiff No. 1 out of the plaintiffs was in existence at the time of the alienation, at most, only he can get the alienation set aside to the extent of his share. It is not denied that the property was a coparcenary property as to the alienation of which defendant No. 1 had not only the powers of a manager, i.e. the right to alienate it for legal necessity or for the benefit of the family, but also the special powers of a Hindu father to sell or mortgage the joint family property, including his sons' interests therein, to discharge debts contracted by himself for his own personal benefit, and that such alienation would bind the sons provided that such debts were antecedent to the alienation and that they were not incurred for immoral purposes. (Mulla's Hindu Law, 8th edn., sections 256 and 259). The ground as to immoral purposes having been given up, it is sufficient for the appellants to show that the alienation was justified by antecedent debts or by the benefit of the family. The Trial Court has held that no such debts or purposes have been made out or were found by the alienees on enquiry to have existed at the time of the alienation. The sale-deed (exhibit 50) states the grounds of the sale as ' for the purpose of my family and its required management'. Defendant No. 2 in his evidence has given details of these purposes. They are : a debt of Rs. 1,000 due from his father's grocery shop, Rs. 300 to Rs. 350 due for rent of the land which had not been paid on account of bad harvest, Rs. 200 owed to agricultural employees, Rs. 300 required for purchasing bullocks, cotton-seed, fodder, etc., and about Rs. 500 due on three bonds (exhibits 84, 85 and 86). The aggregate of these amounts comes to Rs. 2,300 to Rs. 2,350. Defendant No. 2 has examined two witnesses, one Ramchandra Shankar Kulkarni, who identified defendant No. 1 before the Sub-Registrar and who had been a talati of the village for two years and one Fakirraddy, one of the attesting witnesses.
5. The Trial Court held that exhibits Nos. 84 and 85 which had been passed in 1907 had become time-barred in 1912. In this it seems to have been in error as these bonds bear endorsements of acknowledgment made in 1910, and this fact seems to have escaped its notice. At the same time the sale-deed does not specifically mention any bonds as satisfied nor is there any endorsement on these three bonds as to satisfaction. Defendant No. 2 admits that no pressure was being put on defendant No. 1 to pay his debts and that the sale was not specifically for the satisfaction of the previous bonds. He also admits that neither he nor his father made any inquiry as to the alleged debts of defendant No. 1's shop, and he does not say whether any inquiries were made regarding the other debts. It also appears likely that the two witnesses had no direct knowledge of the debts. Ramchandra says, ' No other debt was mentioned ', apparently implying that the debts which are alleged were mentioned by defendant No. 1. Fakirraddy states, 'Defendant No. 1 did not say how much he owed to Neeli's and how much to Kattewadi,' the two villagers to whom defendant No. 1 alleged that he owed shop balances. Defendant No. 1 has admitted that Neeli kept accounts, but no accounts have been produced.
6. In these circumstances the Trial Court held that no sufficient reasons had been made out as legal justification of the sale. We have to consider whether there is any reason for us to take a different view.
7. The alienation was made eighteen years before the suit and defendant No. 1 being dead defendant No. 2 could perhaps rely only on the two witnesses who have been mentioned above. But defendant No. 2 has admitted that he was working under his father at the time of the sale-deed and that therefore he had knowledge of the details of the transaction. We have been referred in this connection to certain passages in Mayne's Hindu Law, 9th edition. At p. 482 it is stated that the presumption proper to be made as to the existence of legal grounds for the transfer will vary with circumstances, and must be regulated by, and dependent on, them. Reference is made at p. 484 of the same book to Banga Chandra Dhur Biswas v. Jagat Kishore Chowdhuri from which the following remarks by Lord Buckmaster may be quoted (p. 253) :-
If the deeds were challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But, as time goes by and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case assumes greater importance and cannot lightly be set aside ; for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper inquiry to satisfy himself of its truth. The recital is clear evidence of the representation, and if the circumstances are such as to justify a reasonable belief that an inquiry would have confirmed its truth, then, when proof of actual inquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed.
In the present case though eighteen years had elapsed before the suit was brought, defendant No. 2 was twenty-nine years of age at the time of the alienation, and he admits that he knew all the details of the transaction and also that he and his father made no inquiries as to the alleged debts of the grocery shop. He does not say that he made inquiries as to any of the other alleged debts and necessities. It is true that defendant No. 1 had been taking loans from his father since 1907 and therefore defendant No. 1 and Adiveyya were not strangers. But in this case the recitals in the deeds are of the vaguest description, and it would be reasonable to require that Adiveyya, who was purchasing a land of considerable value, should have made some inquiries as to the alleged debts and should have been careful either to see that the satisfaction of the three bonds were specifically mentioned in the sale-deed or to get entries made in the documents themselves that they have been satisfied. We do not think that sufficient grounds have been made out in appeal to justify our taking a view different from that of the Trial Court on this point.
8. The next point taken by the learned advocate for the appellants is one of limitation, The suit was filed on October 17, 1930, the alienation in favour of Adiveyya having been made on May 10, 1912. It is admitted that in this case Article 126 of the Indian Limitation Act applies, under which article the period of limitation is twelve years from the date of the alienee's taking possession. Possession in this case was taken immediately on the passing of the deed, but plaintiff No. 1 became a major on April 22, 1927, i.e., less than three years before the suit. The point taken, however, is that Rudrappa, plaintiff No. 1's step-brother who appears to have separated from the family in 1924, was presumably a major at that date and that if he had brought a suit on the date of the present suit for getting the sale set aside, it would have been time-barred. That being so, it is contended that under Section 7 of the Indian Limitation Act time will run against plaintiffs Nos. 1 to 6 also and the present suit will also be time-barred. Section 7 of the Indian Limitation Act runs thus :-
Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all : but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.
9. Reliance has been placed on Bapu Tatya v. Bala Ravji I.L.R. (1920) Bom. 466 : 22 Bom. L.R. 1383 Sita Ram Singh v. Cheddi Singh I.L.R. (1924) All. 882 and Ranodip Singh v. Parmeshwar Pershad (1924) L.R. 52 IndAp 69 : 27 Bom. L.R. 175. In the first of these cases three brothers sued to get an alienation made during their minority by their mother set aside, plaintiffs Nos. 1 and 2 being minors and plaintiff No. 3 being over twenty-one years of age at the date of the suit. It was held that the suit was barred against plaintiff No. 3 and also against plaintiffs Nos. 1 and 2 under Section 7 inasmuch as plaintiff No. 3 on his attaining majority became the manager of the joint family and as such could give a valid discharge and acquittance of all claims against the defendants without the concurrence of the minor plaintiffs. As Rudrappa was never a manager of the family property, this case has no application, in our opinion, to the facts of the present case. In Sita Ram Singh v. Cheddi Singh I.L.R. (1924) All. 882 which was a suit brought by two brothers for setting aside an alienation made by their father, it was held that when an alienation was made which was not justified by necessity, a cause of action arose in favour of all the other members to have it set aside and to recover possession from the alienee, but that there was only one cause of action in favour of the other members of the family and that successive causes of action could not arise as new members were born year after year. In Ranodip Singh v. Parmeshwar Pershad four brothers forming a joint Hindu family sued to set aside their father's alienation, three of them being over and the fourth being under twenty-one years of age. It was held that the suit was barred against all of them as the cause of action arose when the youngest plaintiff was not in existence and no new cause of action arose upon his birth. The effect of the last two cases is that where several brothers seek to set aside an alienation and the eldest of them attained majority more than three years before suit, the suit of all the brothers will be time-barred. It was, however, held in fawahir Singh v. Udai Parkash that where an elder brother had taken no steps to question the alienation, a suit brought by a younger brother within three years of his attaining majority to avoid the alienation is not time-barred. In that case their Lordships of the Privy Council confirmed the decision of the High Court of Allahabad which had followed their own decision in Ganga Dayal v. Mani Ram I.L.R. (1908) All. 156 In that case the certified guardian of two Hindu minors had sold a certain property of the minors without the sanction of the District Judge. Within three years of his attaining majority the younger of the two minors, who were brothers, sued to avoid the sale. The elder, however, had come of age several years earlier and had taken no steps to repudiate the transaction. It was held that the suit was not barred by limitation,. It was argued in this case that plaintiff No. 1, who was the elder brother, must be deemed to be the managing member of the family who would have a right to give a discharge. Their Lordships said (p. 160):-
The powers of the manager of a Hindu family are undoubtedly very extensive, but there is nothing in the present case to show that the plaintiff No. 1 ever acted as the manager. In the present case all that he did was to remain quite inactive without taking any step to recover possession of the property or to set aside the transaction which was completely against the interest of himself and his minor brother. On the whole we have come to the conclusion that the plaintiff No. 1 was not capable of giving a discharge without the concurrence of plaintiff No. 2 within the meaning of Section 8 of Act XV of 1877. The consequence is that time did not run against either of the plaintiffs and the suit is maintainable.
10. On the same principle we must hold that Rudrappa, who never acted as the manager, could not have given a valid discharge without the concurrence of the plaintiffs, and that the latter's suit cannot be said to have become time-barred.
11. The third point taken by the learned advocate for the appellants is that only plaintiff No. 1, who had been born at the time of the alienation out of all the plaintiffs, can challenge the alienation and that he can do so only for the purpose of setting it aside to the extent of his share. In our opinion, this contention must be upheld, his share meaning his share as it stood at the time of the alienation. The law applicable on this point has been thus set out by Mulla at p. 318 in his Principles of Hindu Law, 8th edn.:-.an alienation made by a father who has sons then living, not being one for legal necessity, or for payment of an antecedent debt, if made without their consent, may be set aside by one of those sons-partially or wholly according to the province in which the question arises.
The word 'partially' in this sentence is meant to apply to the provinces of Bombay and Madras where a coparcener may alienate for value his undivided interest in the coparcenary property without the consent of the other coparceners. At p. 312 of the same book, paragraph 268, it is stated-
Where a member of a joint family governed by the Mitakshara law as administered in the Bombay and Madras Presidencies sells or mortgages more than his own interest in the joint family property, the alienation not being one for legal necessity or for payment by a father of an antecedent debt, the other members are entitled to have the alienation set aside to the extent of their own interests therein.
The words ' the other1 members ' in this sentence appear to mean members who exist at the date of the alienation.
12. In Chuttan Lal v. Kallu I.L.R. (1910) All. 283 it was held that a member of a joint Hindu family who was born after the alienation of the family property by another member of that family cannot question the validity of that alienation. In Chinnu Pillai v. Kalimuthu Chetti I.L.R. (1910) Mad. 47. a Full Bench considered the question whether the mortgagee of a Hindu father is entitled to proceed against the share of a son subsequently born in family property mortgaged by the father. The answer was in the affirmative. The Full Bench decision dissented from the Full Bench decision of the same High Court in Rangasami v. Krishnayyan I.L.R. (1890) Mad. 408. where the following view had been held (p. 418):-.the purchaser, who can only take what can be lawfully sold, must be taken to purchase an uncertain and fluctuating interest with the right of converting it at any moment after the purchase by partition into definite separate property.
It referred to a later decision in Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) Mad. 690 in which it had been held that the death of the coparcener who had made the alienation did not divest the interest of the alienee ; and White C.J. said (p. 53) :-. it seems to me that when once it has been held that the death of the alienor does not create any right of survivorship in the other co-parceners, it follows, almost as a necessary corollary, that the quantum of the interest which vests in the alienee is not affected by subsequent changes in the number of coparceners.
Benson J. said that the question was really concluded by the decision of the Privy Council in the case of Hardi Narain Sahu v. Ruder Perkash Misser I.L.R. (1883) Cal. 626 In that case a judgment-creditor had bought in execution and obtained possession of the right, title and interest of the judgment-debtor in a certain property which belonged to him and his minor son jointly; and their Lord ships had held, agreeing with Deendyal Lal v. Jugdeep Narain Singh I.L.R. (1877) Cal. 198 and Suraj Bunsi Koer v. Sheo Persad Singh I.L.R. (1879) Cal. 148. that the property which had passed to the purchaser was the share and interest of the father which would have been allotted to him if a partition of the family property had taken place at the time of the execution sale.
13. In a later case, Sathapathiar v. Sivanarayana Pillai I.L.R. (1932) Mad. 534 a Division Bench of the Madras High Court dissented from the Full Bench case of Chinna Pillai v. Kalimuthu Chetti I.L.R. (1910) Mad. 47. and went back to the Full Bench decision enunciated in Rangasami v. Krishnayyan I.L.R. (1890) Mad. 408. With great respect we are unable to follow the ground on which the last decision was reached. One ground for decision may be that, as held in Shanmugam Pillai v. Panchali Ammal I.L.R. (1925) Mad. 596 an auction-purchaser of the undivided share of a coparcener of a joint Hindu family in the Madras Presidency got by his purchase a mere equity to a partition of the joint family property and did not become a tenant-in-common with the other members of the family. In Bombay, however, as stated in Mayne's Hindu Law at p. 496 (9th edition), it is held that even before partition, a purchaser of the interests of one coparcener is a tenant-in-common with the others. (Naro Gopal v. Paragouda I.L.R. (1916) Bom. 347 : 19 Bom. L.R. 69) The Bombay decisions on the question under consideration are in accordance with Chinnu Pillai v. Chandram Pillai, and not with Rangasami v. Krishnayyan, or Sathapathiar v. Sivanarayana Pillai. In Kastur Bhavani v. Appa I.L.R. (1876) Bom. 621 the father of the plaintiffs, two of whom were minors, sold some lands belonging to the joint family to the defendant's father. Plaintiffs in that case failed to establish any case entitling them to set aside the sale. Their Lordships, however, remarked (p. 629):-
Lastly, although in the view that we take of this case, the question is not now of importance ; it ought to have been ascertained whether either the second or third plaintiff had been born before the 25th of May, 1858 [the date of the alienation]. If, as is extremely probable, they were not so, this suit would have been unsustainable by them, as they never could have had a vested interest in the lands.
14. In Naro Gopal v. Paragauda two brothers sued to set aside the sale by their father to defendant No. 1 of a certain piece of land belonging to the joint family. One of the brothers had been born subsequently to the date of the alienation. It was held that defendant No. 1 had acquired the one-half share in the alienated property to which defendant No. 2 had been entitled at the date of the alienation owing to the fact that the minor plaintiff had not then been born. Their Lordships referred to Gurlingapa v. Nandapa I.L.R. (1896) Bom. 797 in which Sir Charles Farran C.J. had remarked that two previous decisions of the Bombay High Court, Pandurang Anandrav v. Bhaskar Shadashiv (1874) 11 B.H.C.R. 72 and Mahabalaya bin Parmaya v. Timaya bin Appaya (1875) 12 B.H.C.R. 138 pointed to the period of the alienation by a Hindu coparcener, whether voluntary or compulsory, as that at which the rights of the alienee were to be determined, but that the Court, nevertheless, in Gurlingapa v. Nandapa had laid down obiter, following Rangasami v. Krishnayyan, the proposition that the purchaser of the coparcenary share stood in no better position than his alienor and was consequently, like the latter, liable to have his share diminished by the birth of other coparceners, if he stood by and did not insist on an immediate partition. This conclusion was held by their Lordships to be inconsistent with the proposition that an alienation by the joint tenant effects a severance as a result of which the alienee, before division by metes and bounds, becomes a tenant-in-common. (Jogeswar v. Ram Chund and Pandurang Anandrav v. Bhaskar Shadashiv (1874) 11 B.H.C.R. 72, 81. We are bound by the decision in Naro Gopal v. Paragauda, and must, therefore, hold that at the time of the alienation in 1912, when the plaintiff's family consisted of defendant No. 1, defendant No. 11, plaintiff No. 1 and Rudrappa, plaintiff No. 1 would have got a one-fourth share in the property on partition and that as defendant No. 11 cannot challenge and Rudrappa has not chosen to challenge the alienation, plaintiff No. 1 is entitled to question the alienation to the extent of only such one-fourth share in survey No. 32. In this one-fourth share defendant No. 11 will have no share, as she would have been entitled to receive a share, equal to that of a son only if the partition had taken place between her husband and his sons or between the sons after her husband's death. (Mulla's Hindu Law, 8th edn., paragraphs 315 and 316).
15. In First Appeal No. 164 of 1934 the facts are as follows. On September 17, 1924, defendant No. 1 mortgaged survey No. 31/2, which belonged to the joint family, to the father of defendants Nos. 7 and 8 for Rs. 700. On December 5, 1925, defendant No. 1, on behalf of himself and his minor sons, the plaintiffs mortgaged the same land as well as a house with a yard to one Andanappa for Rs. 2,400. Andanappa transferred his right to defendant No. 9 on January 6, 1930, for Rs. 3,500. Lastly, in 1928 defendant No. 10 having obtained a money decree against defendant No. 1 purchased the land, survey No. 31/2, in execution. The plaintiffs-appellants seek to get these alienations set aside.
16. The last of these alienations by which defendant No. 10 purchased survey No. 31/2 in execution, subject to the previous mortgages, is not challenged by the present appellants, as the learned advocate on their behalf admits that the ground of the trial Court's decision as to the alienation being binding on them is correct. The plaintiffs questioned this alienation in the suit, inter alia, on the ground that the alienation was for immoral and illegal purposes, but subsequently gave up this ground. That being so, and the right, title and interest of defendant No. 1 having been sold at a Court-sale in execution, the plaintiffs being sons of the judgment-debtor are necessarily bound by the Court-sale.
17. A question as to res judkata has been raised as regards the first alienation in favour of defendants Nos. 7 and 8, but we do not think that it would be proper on our part to go into the validity of the alienations of 1924 and 1925, so far as the plaintiffs are concerned, in view of the legal consequence of the execution sale of 1928. The plaintiffs having now no personal interest left in the suit property as the result of the sale, they cannot be said to have any locus standi in First Appeal No. 164 of 1934. We, therefore, think that we cannot interfere with the decree of the trial Court as regards the subject-matter of this appeal, which will accordingly be dismissed with costs.
18. As regards First Appeal No. 87 of 1934, the order of the Trial Court as regards survey No. 32 is that the plaintiffs do recover by partition a three-fourths share in the property. In the view that we have taken this fraction will have to be reduced to one-fourth. The declaration of the trial Court that the mortgage held by defendant No. 9 is binding against the plaintiffs will be set aside, as we have not gone into the question of the validity of the mortgage. The Trial Court has also awarded defendant No. 11 a one-eighth share in the plaint property. As the mother will not be entitled to any share in the present suit, this part of the trial Court's decree will also be set aside. The Court has further ordered an inquiry as to future mesne profits as regards survey No. 32 from the date of the suit till recovery of the possession or till the expiry of three years from the date of the trial Court's decree. That date will be replaced by the date of the present decision. The rest of the order of the trial Court will stand.
19. The appellants have largely succeeded in appeal No. 87 and we think the proper order will be that they will be entitled to two-thirds of the costs in that appeal.
20. I agree with the orders proposed by my learned brother. I have to add only a few remarks on two points. First, as to the quantum of the share which the plaintiffs are entitled to get as a result of holding that the sale of land No. 32 in the year 1912 is not binding on their interest.
21. The law in Bombay as settled in this presidency by Naro Gopal v. Para-gauda I.L.R. (1916) 41 Bom. 347. 19 Bom. L.R. 69 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. That share would actually have been one-fourth in this case, the family consisting of defendant No. 1, defendant No. 11, mother of plaintiff No. 1, plaintiff No. 1 himself and Rudrappa. But Rudrappa who accepted the alienation in 1924 when he took his share and went out of the family has no right to challenge it, nor has the mother, defendant No. 11. It is conceded that only a coparcener can do so. The plaintiffs who are in effect suing to evict persons who have been in possession since 1912 can take no more between them than the share to which plaintiff No. 1 would have been entitled to in 1912. Defendant No. 11 can claim no share in this suit. If the plaintiffs should partition their one-fourth share, which they have not sought to do so far, she would get the share of a son, i.e. one-seventh in that.
22. In appeal No. 164 the plaintiffs raised the question of the validity of the mortgages executed by defendant No. 1 in favour of the father of defendants Nos. 7 and 8 and in favour of defendant No. 9 so far as their interests in the property are concerned. But in this suit the consideration of these questions is academic and premature. Defendant No. 10 purchased the property in 1928 at a Court-sale subject to the mortgage rights of defendants Nos. 7, 8 and 9. Plaintiffs' equity of redemption is, therefore, lost and they have no interest in the property. The mortgagees could not proceed against them. If they sue defendant No. 10, it might be open to him to contend that the mortgages are not effective against the whole of the property. Plaintiffs cannot call upon the Court to go into that question now. They apparently hoped to be able to set aside the Court-sale. But they have had to admit that the sale is binding on them. It necessarily follows that their interest in the property is gone and they have no locus standi to challenge the mortgages either.