Umamaheswaram, J. :
1. The important question of law that arises for decision in the appeal is whether when an alienation effected by a father is set aside at the instance of the sons, the purchaser in possession is bound to pay mesne profits from the date of the alienation. There is a conflict of authority on the point. In Subba Goundan v. Krishnamachari, ILR 45 Mad 449: (AIR 1922 Mad 112,) It was held at p. 465 (of ILR Mad) : (at p. 118 of AIR) that the sale effected by a father or managing member of the joint family will be good till avoided, as it is open to other coparceners to affirm the transaction. Following the decision of the Allahabad High Court in Bhirgu Nath Chaube V. Narsingh Tewari, ILR 39 All 61: (AIR 1917 All 479) the learned Judges limited the claim for mesne profits from the date of suit as there was no repudiation before the suit. The same 'view was taken by the Madras High Court in Ganesa Aiyar v. Amirathasami, AIR 1918 Mad 178, and the learned Judges held that as mesne profits are in the nature of damages, each case must be dealt with on merits. In Ramaswami Aiyar v. Venkatarama Aiyar, ILR 48 Mad 815 : (AIR 1924 Mad 81) it was held that as the sale hy the manager of the family is not prima facie void but only voidable at the instance of the other members of the family, the plaintiff is not entitled to any mesne profits until the date of the suit. In Mulla's Hindu Law, 12th edition, at p. 406, the law is set out in the following terms :
'Where an alienation is set aside under this section and the purchaser is in possession, he may be required to pay mesne profits from the date on which the sale is repudiated by the other coparce- ners, but not from the date of sale, the sale being valid until it is repudiated.'
Reference is made in the text book to the decision of the Bombay High Court in Gangabisan Jeevanram v. Vallabhdas Shankarlal, ILR 48 Bom 428 : (AIR 1924 Bom 433) where there is no discussion.
A contrary view is sounded by Varadachari J. (the great lawyer-Judge, well-versed in Hindu Law) in delivering the judgment of the Bench in Veerayya v. Venkata Bhashyakarlarao, ILR (1937) Mad 66: AIR 1936 Mad 887. The learned Judge referred to the decisions of the Madras High Court in ILR 45 Mad 449 : (AIR 1922 Mad 112) and ILR 46 Mad 815 : (AIR 1924 Mad 81) which lay down in general terms that in respect of voidable transactions there is no right to claim mesne profits prior to the date of suit Or the date of repudiation.
The learned Judge clearly stated that after the decision of the Privy Council in Satgur Prasad v. Har Narain Das. 62 Mad LJ 451 : ILR 7 Luck 64 : (AIR 1932 PC 89) no such general proposition can be advanced. Or, in other words he doubted the correctness of the two decisions of the Madras High Court referred to by that learned Judge sitting with Mr. Justice Abdur Rahman in Krishnamurty v. Satyaoarayana, ILR(1939) Mad 917 : (AIR 1939 Mad 824).
Having regard to the importance of the question involved in the appeal as also the conflict of authority, I think it necessary to refer it to a Bench in order to have an authoritative decision on the matter. Post before a Bench.