1. The plaintiff respondent filed a suit for partition and possession of his share of the plaint schedule property on the ground that, it is the joint family property of himself, his brother, Defendant 6, and their father Defendant 5. The concurrent finding of the Courts below that the property is the ancestral property of Defendant 5 was not disputed before me. The property was hypothecated for discharging previous debts one of which was a debt due on a promissory note. There is absolutely no evidence, to show that the debts due by the 5th defendant were contracted for any necessity or purposes binding on the joint family. It has therefore to-be stated that the hypothecation was binding only on such interest as the 5th defendant had at the time the hypothecation deed was executed.
At that time the plaintiff had not been born. The only coparceners of the joint family were Defendant 5 and his son Defendant G. The plaintiff was born on 8-8-1928. Defendants 5 and 6 sold away the entire property to the first defendant in order to discharge the debt due on the hypothecation deed. Though the sale is binding on such interest as Defendant 6 had in the property at the time of the sale, it cannot be said that the sale is binding on such interest in the property as the plaintiff had then. The learned Munsiff has passed a decree for partition of the plaint schedule property and directed that the plaintiff be put in possession of 1/3rd share. The judgment and decree of the learned Munsiff have been confirmed by the learned Subordinate Judge.
Though the point has not been specifically raised in the appeal memo it has to be noticed that the Courts below were wrong in holding that the plaintiff is entitled to 1/3rd share, as in law the plaintiff is entitled to something less than that. As observed in the case reported in --'B. K. Gurumurthiah v. Seetharamaiya', 19 Mys LJ 310 :
'An alienation of an item of joint family property by a father when he and his eldest minor sort are the only members of the joint family, binds the father's half share in the property concerned, and no later addition to the coparcenary can affect that : nor can. any coparcener who comes into existence afterwards question the same. But if the alienee wishes to enforce the alienation against any interest of the other members of the joint family be-yond the father's share he must prove the existence of either family necessity or benefit or that, he made reasonable enquiry as to the existence of the same.
A subsequently born son, who as soon as he comes into existence acquires an interest in the joint-family property, can in those circumstances challenge the effectiveness of the alienation against anything except his father's share, and the alienee must make out his case of necessity or benefit or reasonable enquiry as aforesaid against every coparcener against whom he wishes to enforce the alienation.
If the eldest son, who did not take part in the alienation when it was made, however joins in the alienation or adopts it before the birth of another son, the alienation will become complete against the whole of the then existing joint family and the latter cannot question it'.
2. In this case it will be noticed that Defendant 5 had hypothecated the property before the plaintiff was born. At that time he had half interest in the property as already observed. The plaintiff who was born later cannot question the alienation in respect of the half share. As the debt contracted was not for legal necessity it has to be stated that half share of defendant 6 was not bound by the hypothecation. It is at this stage that the plaintiff was born. The fact that both the Courts below have passed a decree enabling plaintiff to get 1/3 share in the property and the fact that this has not been specifically raised in this appeal shows that it is not clear what share an unborn son gets in a property hypothecated by the manager of the family for a purpose not binding on the other coparceners of the family. The point deserves therefore some careful examination.
3. In the case of a joint Hindu family, a coparcener gets an interest in the joint family property as it stands at the time of his birth. Therefore, the plaintiff was entitled to one third share in the right to redeem the half share of defendant 5, which was liable to be proceeded against for the hypothecation debt. He was also entitled to a share in the other half of the property which was not liable to be proceeded against for the hypothecation debt. Subsequent sale by defendants 5 and 6 of the entire property does not affect such interest as the plaintiff had jat the time of the sale, while the alienation is good to the extent of the interest of Defendants 5 and 6.
4. As already noticed the plaintiff's 1/3rd interest in the half share of the property was liable to be proceeded against for the hypothecation debt. Defendants 5 and 6 have sold away this 1/3rd share in half the property also and it was not contended in this case that the sale is not binding on the plaintiff's 1/3rd interest in half the property that was liable to be proceeded against for the hypothecation debt, or that the hypothecation debt could have been cleared without selling plaintiff's 1/3rd interest in this half share of the property.
5. As regards the interest of the plaintiff in the other half of the property that was not liable to be proceeded against for recovery of the hypothecation debt, it cannot be said that the sale by Defendants 5 and 6 is binding on plaintiff. As the half share of defendant 5 has been lost to the family for recovery of a debt contracted by him for purposes not binding on the family, it cannot be said that he has any right to claim a share in the other half of the property. In this half portion the plaintiff is entitled to a half, that is to a 1/4th share in the entire property ; the other 1/4th share in this half has been conveyed to the first defendant under the sale deed executed by 6th defendant. The plaintiff is entitled to 1/4th share in the plaint schedule property.
6. In the result the judgments and decrees ofthe Courts below are modified to this extent thatthe plaintiff will be entitled under the decreeto 1/4th share in the property and not to 1/3rdshare as stated by the Courts below. Partieswill bear their own costs in this appeal.
7. Appeal partly allowed.