Anantanarayana Ayyar, J.
1. This is an appeal against the judgment and decree in O. S. No. 66 of 1954 on the file of the Subordinate Judge, Gudivada. The first appellant was the first defendant in that suit. By an order of this Court dated 22-9-1958 in C. M. P. No. 4817 of 1958, the third respondent in this appeal, who was the third defendant in the suit, was transposed as second appellant.
2. One Nimmagadda Venkata Subbaiah owned ample properties. He had no children and was living with his wife (D. W. 9). He was bringing up his brother's son (D. W. 6). Venkata Sub-baiah gave some properties to D. W. 6 by a document, Ex. B-19. He also wanted to give some property to the first defendant who was the son of a sister of D. W. 9. The wife of the first defendant, namely, the fourth defendant, was granddaughter of a brother of Venkata Subbaiab. Venkata Subbaiah died before he could execute any document giving properties to the first defendant. With a view to give effect to the desire of Venkata Subbaiah, his widow (D. W. 9) executed a surrender deed (Ex. A-8) in favour of P. W. 6 and other reversioners. Those reversioners executed a gift deed (Ex. A-6) conveying the properties of plaint A schedule in favour of the first defendant. Subsequently, the first defendant executed a release deed (Ex. A-10) dated 27-10-1953 in favour of his father (D. W. 5) and his only brother. The first defendant sold some land to the second defendant by the sale deed (Ex. B-3) dated 11-3-5954. On 29-4-1954, the first defendant sold some other land to the third defendant under a sale leed (Ex. B-12). The lands covered by the sale deeds Exs. B-2 and B-12 are given in Schedule B of the plaint.
3. The sole plaintiff, Tamrnareddi Tandava Krishna Rao, being minor represented by his maternal grand-father (P. W. 1) filed the suit O. S. No. 66 of 1954 in the Court of the Subordinate Judge, Gudivada. He was the minor son of the first appellant (D-1) and his wife (D-4). Subsequent to the suit being filed, another son was born to D-1 by D-4. The after-born son was impleaded as D-5 and he was represented by his guardian and grand-mother, Seetha Mahalakshmamma.
4. The case of the plaintiff is as follows.
Nimmagadda. Venkata Subbaiah wanted to bequeath a portion of his property for the benefit of the male issue of the marriage of D-1 and D-4. But, he (Venkata Subbaiah) died before he could execute any settlement deed. The reversioners wanted that D-1 should give up his interest in the ancestral properties before he could receive any portion of the properties of Venkata Subbaiah. The widow (D. W. 9) also wished that D-1 should relinquish his interest in the ancestral properties. The arrangement, by reason of which D-1 relinquished his interest in his paternal properties at Balliparru, under Ex. A-10 was arrived at even prior to the execution of the settlement deed (Ex. A-6) by the reversioners and as a condition precedent and consideration for the settlement deed (Ex. A-6). The properties covered by the settlement deed (Ex. A-6) namely, the A schedule property, were acquired by D-1 to the detriment of his interests in the ancestral properties at Balliparru and they are in substance the substitution of his share in the ancestral properties at Balliparru. The plaintiff acquired an interest by his birth in the properties at Balliparru. In view of the substitution, the plaintiff got the interest in the A schedule properties.
D-1 is a way-ward young man addicted to gambling and extravagant habits of life. Under the evil influence and advice of D-1's father (D. W. 5) and D-1's sister's husband, Gottipati Bapa Rao (D. W. 4), D-1 dealt with the properties of A schedule as if they were his self-acquired properties and executed the sale deeds Exs. 6-3 and B-12 in favour of D-2 and D-3 respectively without any legal necessity or benefit which could make the alienations binding on the minor plaintiff. The next friend of the plaintiff (P. W. 1) learnt that the proceeds realised under the sales were kept by D-1 in deposit with D. W. 4 to enable D-1 to indulge in gambling etc. The properties of B schedule are still in the possession of D-1. D-4 and the next friend of the plaintiff, protested against the alienations under Exs. B-3 and B-12.
As a result of intervention by mediators, there was a partition effected between D-1 and plaintiff by which the properties of C schedule were allotted to the plaintiff. The latter's next friend (P. W. 1) took possession of the C schedule properties and has been in possession of them. As per the arrangement at the partition, D-1 had to execute a partition deed but he failed to do so. He also ill-treated and beat his wife (D-4) and drove her as well as the plaintiff out of his house in September, 1954. Then, plaintiff and D-4 took up residence at Mudinepalli under the protectionof D-4's father (P. W. 1). The plaintiff being minor represented by his next friend (P. W. 1) filed the present suit. The plaintiff asked for declaration that he was entitled to separate possession of the plaint C schedule properties as having been allotted to his share in a partition with his father (D-1) and for an injunction restraining D-1 from interfering with his (plaintiff's) possession and enjoyment of that property, or, in the alternative, for partition of properties of plaint B and C schedules into two equal shares and to allot one of those shares comprising the C schedule property to the minor and to confirm plaintiff's possession of C schedule property.
5. D-1 contended in his written statement as follows :
The allegation in the plaint that the donors under the gift deed (Ex. A-6) and widow, An-napurnamma (D. W. 9) wished that D-1 should relinquish his interest in his ancestral properties at Ballipami before he could receive any portion of Nimmagadda Venkata Subbaiah's estate is false. D-1, of his own accord and out of a desire to improve the status of his father and brother, executed the release deed, (Ex. A-10). The plaint B schedule properties are his (D-1's) self-acquired properties. D-1 is not addicted to gambling and extravagant living. On the otber hand, the plaintiff's next friend (P. W. 1) is a profligate drunkard and habitual gambler. It was at the instance of P. W. 1 that D-1 had to dispose of the properties of B schedule. The B schedule properties were delivered to the respective vendees, D-2 and D-3. The alleged partition and allotment of C schedule property to the minor is false. The entire C schedule property was in possession of D-1.
6. D-2 and D-4 remained ex parte.
7. D-3 generally supported the contentions of D-1 that A schedule property was not the joint family property of D-1 and plaintiff. He also pleaded that he was a bona fide purchaser for value under Ex. B-12 believing the concerned property to be self-acquired property of D-1.
8. On behalf of D-5, a written statement was filed supporting the case of the plaintiff.
9. The learned Subordinate Judge framed eight issues as follows :
1. Whether the A schedule properties are the joint family properties of the plaintiff and the 1st defendant in which the plaintiff is entitled to a half-share?
2. Whether the partition put forward by the plaintiff is true and whether at the partition the C schedule properties were allotted to the plaintiff's share and put in plaintiff's possession?
3. Whether the plaintiff was in possession of the C schedule properties on the date of this suit?
4. If a partition is to be ordered, what are the equities, if any, to which the plaintiff is entitled?
5. Whether the alienations made by the 1st defendant in favour of defendants 2 and 3 are binding upon the plaintiff?
6. To what relief?
7. Whether the 5th defendant is entitled for a one-third share if a partition is to be ordered?
8. Whether the 5th defendant is entitled to a half-share in the 1st defendant's share?
10. The learned Subordinate Judge held on issue No. 1 that the plaint A schedule properties were joint family properties of D-1 and his two sons namely, the plaintiff and D-5 and that the latter two must be given their shares. On issue No. 2, he found that the alleged partition was not true. On issue No. 3 he held that the plaintiff was in possession of C Schedule properties oa the date of suit. On issue No. 4 be held that a general partition had to be ordered in respect of plaint A Schedule properties into three shares, that one such share should be delivered to each of the plaintiff and D-5 and that D-1's one-third share should be set apart to defendants 2 and 3, taking care to set apart such of the properties as are alienated. On issue No. 5, he held that the alienations in favour of D-2 and D-3 were not binding on the plaintiff and D-5 and must be set aside so far as interests of plaintiff and D-5 were concerned. On issue Nos. 7 and 8 he held that D-5 was entitled to one-third of the plaint A schedule property. On issue No. 6 he awarded a preliminary decree for partition in terms indicated above. Hence this appeal.
11. Sri N. V. B. Sankara Eao, learned counsel for the first appellant (D-1) has raised the following contentions: -
1. That the plaint A schedule properties are the self-acquired properties of D-1 and not joint familf properties.
2. That the alienations made by D-1 under Exs. B-3 and B-12 are binding on the plaintiff.
3. That, in any case, the sale by D-1 under Exs. B-3 and B-12 is valid to the extent of half-share of the property concerned in each of those documents being the half-share to which D-1 was entitled at the time of those alienations.
12. Contention No. 1:- This is concerned in Issue No. 1. The document of surrender by Anna-purnamma, namely, Ex. A-8 (same as Ex. B-1) was executed on 15-10-1953. The document of gift Ex. A-6 of which Ex. B-2 is Registration Extract, by the reversioners in favour of D-1 was executed on 25-10-1953. The release deed Ex, A-1 (Ex. A-10) is dated 27-10-1953. From the close proximity of those dates, the learned Subordinate Judge concluded that those documents must have been executed as per the desires and wishes of late N. Venkata Subbaiah. In the release deed (Ex. A-10) D-1 has surrendered in favour of his brother and his father (D. W. 5) one-third share in the entire joint family property, which means the interest of not himself alone as individual co-parcener but of the share of his branch including himself and his minor son, plaintiff. For, D-1's share as individual coparcener on the date of Ex. a-TO, was only one-sixth. The contention of D-1 in his written statement is as follows : -
'The renunciation of interest in the co-parce-nery property made by this defendant under the release deed dated 27-10-1953 was in respect of his undivided co-parcenery interest. The said renunciation, though it purports to be in favour of this defendant's brother and father, actually ennred to the benefit of all the remaining co-parcenerthereby enlarging the interest of the minor plaintiff in the family estate.'
This plea is obviously not true or tenable in view of the clear recital in Ex. A-10. The learned Subordinate Judge was right in concluding that under Ex. A-10, D-1 relinquished the share of his branch in the joint family property, tbat is, the share of himself and his minor son, plaintiff, because, in iieu thereof he got more property, i.e., A Schedule property, under the document Ex. B-1 (Ex. A-8). When D-1 deposed as D. W. 1, he could not get over the recital made by him in Ex. A-10 of which Ex. A-1 is a Registration Extract. So, D-1 said that he did not know what was contained in Ex. A-10 and as to whether what was written in Ex. A-10 was true or not.
13. D. W. 5, the father of D-1, has himselfdeposed as follows: -
'The property (of N. Veakata Subbaiah) was given to D-1 to be enjoyed by him, his children and wife.'
D. W. 6, who himself got the property from Ven-kata. Subbaiah under a document (Ex. 8-19) and relinquished his interest in joint family property like D-1, stated as follows :
'We would not have relinquished our shares in our joint family properties if we had not got property from N. Venkatasubbaiah.'
The learned Subordinate Judge has carefully discussed the oral evidence in the matter in paragraphs 14 to 17 of his judgment and referred to various passages in the evidence of D. Ws. which show that D-1's release of share in joint family property under Ex. A-10 must have been only in lieu of, and because he was getting A schedule properties. We have no hesitation in holding that the conclusion of the learned Subordinate Judge that A schedule properties were given to D-1 only in lieu of his interest in the joint family property i.e., share of himself and his minor son, being the interest of his branch of the joint family is right.
14. In Sivaramakrishnan v. Kaveri Ammal, (S) AIR 1955 Mad 705, it was held that when property was acquired by co-parcener by 'detriment to the paternal estate', the acquired property would partake of the character of ancestral property, the detriment being that the original property, which would have come to the sons (subsequently born or adopted) but for the alienation was not available at the subsequent date. We also agree with the conclusion of the learned Subordinate Judge that, as the property of A schedule was acquired to the detriment of the share of D-1's branch at that time i.e., D-1 and his son (Plaintiff) in the joint family property, A schedule properties constituted joint family properties of D-I and his sons, plaintiff and D-5 and that they are not self-acquisition of D-1.
15. Contention No. 2:- This is concerned in Issue No. 5. Ex 6-3 is a sale deed dated 11-3-1954 executed by D-1 in favour of D-2 conveying three acres of land of Mudinepalli to D-2 for a consideration of Rs. 4,500/-. It mentions that D-1 executed the sale with a view to settle the debt due under the promissory note dated 9-10-1953 in favour of Madusudana Rao and for construction of a house according to D-1's convenience. It mentions that, at the instance of D-1,the D-2 had paid to K. Madusudana Rao towards the promissory note, a sum of Rs. 2,586-14-0 and that a sum of Rs. 1,800/- was paid to D-1 by K. Ramakrishnayya on 9-3-1954. In his written statement, D-1 has not pleaded that Ex. B-3 was executed for any necessity. The only plea is that D-1 sold the land under Ex. B-3 to D-2 at the instance of D-1's father-in-law, namely, P. W. 1, who is the next friend of the plaintiff. D-2 has chosen to remain ex parte. He has not come forward with any written statement or a plea that the alienation under Ex. B-3 was done by D-1 for any necessity or other valid purpose which would be binding on the plaintiff or D-5. D-2 has not deposed as a witness either.
16. Ex. B-12 is a sale deed executed in favour of D-3 on 29-4-1954 for a consideration of Rs. 8,500/-. It is said to have been paid as follows :
'(a) For settlement of debt due under a promissory note dated 27-10-1953 (Ex. 6-13) in favour of D. W. 2 and for construction of a house for D-1 according to his convenience out of the remaining amount. ..... Rs. 899-6-0.
(b) Advance already received by D-1. ..... Rs. 900-0-0-
(c) To be paid in cash before the sub Registrar. ..... Rs. 6,700-10-0'.
Regarding this sale (Ex. B-12) also, there is no plea by D-1 in his written statement that it was made for any necessity or other valid purpose which would be binding on the plaintiff if the properties sold were joint family properties. In his written statement D-1 proceeded on the basic assertion that the property was not the joint family property of himself and his son (plaintiff) but was D-1's self-acquired property. D-3 has supported D-1's case to the effect that the property was self-acquired property of D-1 and also contended that he is a bona fide purchaser for value, without notice of any defect, as a result of the representation made by D-I that the properties were his (D-1's) self-acquired properties. Out of the large sum of Rs. 8,500/- only a smail portion namely, of Rs. 899-6-0 is said to have been paid towards a prior debt on a promissory note to D. W. 2.
17. In his evidence, D-1 said that he wanted to shift his residence from Mudinepalli to Balli-parru and that, with that object, he effected sales Exs. B-3 and B-12 with a view to purchase other lands in Balliparru. But, he admitted that he had not in fact purchased any lands with what he realised under Exs. B-3 and B-I2. The evidence of D-1 as D. W. 1 is that he had with him a sum of Rs. 8,500/.- left in cash out of the sale proceeds of Exs. B-3 and B-12, that out of that sum he had left Rs. 8,000/- with his sister's husband (D. W. 4) after taking a promissory note and left the rest of the cash with D. W. 4 after obtaining an assignment of a promissorv note for Rs. 605/- which was in favour of D. W. 4. D. W. 4 corroborated this version. Thus, the major portion of the sale proceeds of Exs. 6-3 and B-I2 is kept by D-1 as cash lent on pronotes.
18. D-1's version that he sold the lands at the instance of plaintiff's next friend (P. W. 1) has not been proved and is not believable. In evidence, D. W. 1 tried to make out that he soldthe lands under Exs. B-3 and B-I2 to discharge certain debts which had been left by Nimmagad-da Venkata Subbaiah. The defence witnesses supported this version. But the learned Subordinate Judge disbelieved the evidence of those witnesses mainly for the following reasons. D-1 himself has not raised any such plea in his written statement. The version is an after-thought. The version was that the house of Mudinepalli had to be repaired at a cost of Rs. 3,000/- and Nimmagadda. Venkata-subbaiah had to pay a sum of Rs. 4,500/- to his brother-in-law, Jasti Subbarao and that D-1 and N. Satyanarayana (D. W. 6) had to discharge debts to the tune of about Rs. 10,000/- due by Venkata Subbaiah. D-1 deposed that he executed a promissory note for Rs. 2,500/- on 9-10-1953 in favour of Madhusudhana Rao and another promissory note for Rs. 2,200/- in favour of Potluri Veeraraghavayya (D. W. 2) and that this total sum of Rs. 700/- was his share of the debt payable by Venkata Subbaiah. But, P-1 admitted that he did not incur any expenditure for repair of Venkata subbaiah's house.
On 9-10-1953, the date of the alleged promissory note in favour of K. Madhusudhana Rao, D-1 was not already given any property of Venkata Subbaiah. So, it is not possible to believe that D-1 executed the promissory note to discharge debt due by Venkata Subbaiah. There is no document to show that any money was due by Venkata Subbaiah to Jasti Subbarao on account of balance of purchase money. No debts of Venkata Subbaiah are mentioned either in the surrender deed. Ex. A-8 (Ex. B-r) or in the gift-deed Ex. A-6 (Ex. B-2). D-1 himself admitted as D. W. 1 that debts of Venkata Subbaiah were not mentioned in any document. It was admitted by D. W. 4 that Venkata Subbaiah himself had repaired the house before the latter died. D. W. 6 admitted that Venkata Subbaiah did not take any sale deed for land alleged to have been purchased by the latter from Jasti Subba Rao. It is said that the land purchased by Venkata Subbaiah from Jasti Subba Kao was given away by Venkata Subbiah to D. W. 6 under Ex. B-19. In such case, in fairness, the balance of purchase price must have been mentioned in Ex. B-19 as due to the vendor, Jasti Subba Rao if really the latter had sold the land to Venkata Subbaiah.
19. The learned Subordinate Judge has very elaborately discussed the oral and documentary evidence let in on behalf of D-1 and D-3 regarding these debts and concluded as follow? :-
'First of all, there was no need for the sale of the B schedule land. The debts said to have been discharged from out of the sale proceeds are all bogus. The alienations said to have been made in favour of defendants 2 and 3 cannot, therefore, be supported. The 2nd defendant, one of the alienees, remains ex parte and he does not come forward to contest the suit. It is only the 3rd defendant that is contesting the suit. The sales in favour of defendants 2 and 3, so far as the Interest of the sons of the 1st defendant therein is concerned, must be set aside.'
We have gone through the entire evidence and fed convinced that this conclusion of the learned Subordinate Judge is amply justified by the evidence on record. We do not find sufficient reason to disagree with the finding of the learned Subordinate Judge on this point. This contention No. 2 is not tenable.
20. Contention No. 3: This contention is supported by the learned advocate for D-3 so far as Ex. B-12 is concerned. Issues Nos. 7 and 8 related to the question of D-5's share. Under Issue No. 4, the learned Subordinate Judge considered this point and held that D-2 and D-3 would be entitled to proceed only against one-third share of D-1 and also provided that in setting apart the share of D-1 care will be taken to allot to him such of the properties as are alienated. If under this provision, the properties of B schedule are allotted in entirety to D-1 in the partition by including them in his one-third share, the arrangement would be equitable and no difficulties will arise so far as defendants 2 and 3 are concerned. On behalf of D-1 and D-3, it is contended before us that D-5 cannot challenge the alienations which had been made under Exs. B-3 and B-12.
21. The learned advocates for D-r and D-3 rely on the decision of the Madras High Court in Vasireddi Balchandrasekhara v. Lakshminarasim-ham, ILR (1040) Mad 913: AIR 1940 Mad 691: 1940-1 Mad LJ 820. In that case, a Division Bench held that, where a Hindu father having only one son mortgaged joint family property for a purpose not binding on the family and another son was born subsequent to the mortgage, the latter could not question the alienation in spite of the fact that there was another member of the joint family at the date of the mortgage who had not consented to the alienation and validated it. The learned Judges based their conclusion relying on the decision of the Privy Council in Lal Bahadur v. Ambika Prasad, ILR 47 All 795: (AIR 1925 PC 264) observing that it was a direct decision on the question and, on that basis, disagreeing with the earlier decisions of the Madras High Court and of the Judicial Committee of the Privy Council in Ramkishore v. Jainarayan, ILR 40 Cal 966 (PC). They also disagreed with the following observations of the Editor of Mayne's Hindu Law, roth Edition, at pages 511 and 512.
'An observation of the Privy Council in ILR 47 All 795: AIR 1925 PC 264 would seem to confine the right to challenge alienations of family property to the co-parceners alive at the date of the alienation and to deny such a right to a coparcener who, though born subsequent to the alienation, acquires an interest in the co-parcenery properly before the death of the objecting or non-alienating co-parceners'.
'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 overruled. If, however, the observations mean that co-parceners bora in the family subsequent to an alienation but 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 Boardin ILR 40 Cal 966 (PC) as well as with the cardinal principle of Hindu Law'.
Though the learned Judges in ILR (1940) Mad 913: (AIR 1940 Mad 691) expressly disagreed with the above passage in Mayne's Hindu Law, their opinion was cot essential and necessary for the final decision of the case and was, therefore, in the nature of obiter. Subsequently, the Judicial Committee of the Privy Council in Panchayati Akhara Udasi Nirwani v. Surajpal Singh, (1944) 2 Mad LJ 395 at p, 397 ; AIR 1945 PC 1 at p. 3 upheld the right of an after-born son to challenge the validity of an alienation by their father in the following words:
'It is not now contended that this borrowing was either for necessity or beneficial to the family. Two defences, however, are set up -- firstly, that the infant sons, of Surajpal Singh are not entitled to contest the liability of the family estate as security for the mortgage debt .....In support of the former proposition, it is asserted that a member of a joint family must be content with the family estate as he finds it at his birth or at any rate he cannot complain of anything done before the period of gestation. Upon this rule, it is admitted, there is engrafted an exception to the effect that if the child who objects to the alienation of the property comes into existence or is conceived after the alienation, but during the life of a child born or conceived before the alienation, then that overlapping of the two lives enables the later-born child to contest the validity of the father's act'.
This observation brought the law in line with the law as it existed in Madras prior to the decision in ILK 1940 Mad 913 : (AIR 1940 Mad 691). This position has burn explained by Viswanatha Sastri, J. in Seshamma v. Venkayya, (S) AIR 1957 Andh-Pra 386 wherein the learned Judge applied the law accordingly as the learned Judges did in Visweswata Rao v. Surya Rao, AIR 1936 Mad 440. In (S) AIR 1957 Andh Pra 386, it was held that though defendants 3, 4, 5, were born some years after the sale of property by their father, still, having regard to the fact that their elder brother, second defendant, was in his mother's womb on the date of the alienation, they (defendants 3 4, 5) were entitled to impeach, the sale and recover their shares of the family properties namely, three-fifth share. We express oar respectful accord with the above decision in (S) AIR 1957 Andh Pra 386.
22. In the latter edition of Mayne's Hindu Law (XIth edition, 1953), it has been observed as follows: (at pages 499-500):;
'Where an alienation was 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; and no consent given by them after his birth would render it binding upon him. The reason of the thing is not of course that the unborn son had any right in the family property at the time of the alienation, but that on his birth he acquires a share in the family property as it then stands. ..... Ifthe alienation was invalid, he acquires a share in the whole property, including the portion purported to be alienated, because it was bad even at its inception and did not in law diminish the corpus of the joint family property. Doubts with regard to his rights must be taken to have been set at rest by the recent decision of the Privy Council in (1944) 2 Mad LJ 395 : (AIR 1945 PC i)'.
23. The same position of law is also stated in Mulla's Hindu Law.
24. The result is that an improper alienation of joint family property by a father or manager can be set aside at the instance of an after-born co-parcener, provided there was in existence at the date of the alienation some co-parcener who could challenge it and he had not consented to the alienation or ratified it before the after-born son was begotten. Vide (S) AIR 1957 Andh Pra 386. If the alienation was invalid, the after-born son acquires a share in the whole property including the property alleged to be alienated because it was bad even at its inception and did not in law diminish the corpus of the joint family property.
25. In this case, the after-bora son (D-5) is obviously entitled to participate in a decree in the suit filed by the plaintiff (a son) as member of the joint family. So, not only the plaintiff but also the after-born son (D-5) acquired a share In the whole property of A schedule including the portion covered by B schedule because the alienations under Exs. E-3 and B-12 were not valid and were bad even at their inception and did not in law diminish the corpus of the joint family property. We agree with the learned Subordinate Judge that each of the plaintiff and D-5 was entitled to one-third share in the entire A schedule property and that the provision made in Issue No. 4 regarding the allotment of plaint B schedules to D-1's share is just and equitable. The contention No. (3) is also not tenable.
26. In the result, we dismiss the appeal withcosts payable by the first appellant (D-1) to therespondent I (plaintiff). In the circumstances,we direct the second appellant (D-3) to bear hiaown costs in this appeal.