1. A question of law not considered by the lower appellate Court as it was not placed before it is the only point for decision in this case. As to the rest relating to ground 3 of appeal, I have not the slightest hesitation in agreeing with the excellent judgment of the appellate Court.
2. One Hem Singh who was father in a joint Hindu family consisting of himself and his son at the time executed a deed of gift of 17 bighas of land in favour of the plaintiff Sohan Lal, a legal practitioner and a Brahman, on 3rd March 1920. Fifteen months later on 2nd June 1921 he sold his entire property of 136 bighas to the defendant Piare Lal. Piare Lal took possession of the entire property, and Sohan Lal brought the present suit for recovery of the area gifted to him in 1920. The suit was decreed by the trial Court. Various issues were raised there. The learned Judge of the lower appellate Court did not consider the different issues, but decided the appeal, set aside the decree of the trial Court and dismissed the plaintiff's suit on this one ground that a gift by a father of a joint Hindu family was not valid as it was not made for religious purposes and exceeded the power given to a father to make a gift of a small portion of his property for religious purposes. As pointed out by the learned Judge, the plaintiff Pt. Sohan Lal is as secular a person as one would wish to see. The learned Judge must have had the advantage of the acquaintance of Mr. Sohan Lal in Court, and his opinion is, therefore, entitled to carry weight. The Court has further pointed out that Mr. Sohan Lal is well blessed with the riches of this world and did not require any addition thereto. He also pointed out that some vague mention in the deed of the building of a temple and dharmashala was put in merely by way of camouflage so that an appearance of religiosity may be given to the transaction. There can be no doubt that the purpose of Hem Singh was to make a free gift without any condition. The other point rightly dwelt upon by the learned Judge referred to the extent of the gift. A father of a joint Hindu family is permitted to transfer a reasonable portion of the family property for charitable purposes, but not, as in this case, one-eighth of his earthly possessions to a Brahman who was richer than himself and who tried to be still more opulent by practice at the Bar. It is also to be remembered that the property was encumbered at the time.
3. This disposes of ground 3 of appeal. The more important matter for consideration is the argument that the gift was voidable at the instance of the son of the donor, and not void, and, therefore, the defendant who is only the representative-in-interest of the father cannot resist the plaintiff's suit for possession. In reality the argument reverses the ordinary consideration that a plaintiff must prove his case. The plaintiff is not defending his possession but is seeking to enforce transfer in his favour, and it lay on him to prove that his transfer was valid and enforceable without regard to the title of the person in possession. Chamier, J., put this matter succinctly in his judgment in the Full Bench case of Muhammad Muzamil Ullah v. Mithu Lal  33 All. 783 at p. 790:
The majority of the Full Bench in the case of Chandradeo Singh v. Mata Prasad  31 All. 176 seem to have held that a father in a joint Hindu family governed by the Mitakshara cannot execute a mortgage of the joint family property except for family necessity or to meet an antecedent debt, and that the mortgage is in other circumstances invalid even in respect of the father's share.... In accordance therewith I feel bound to hold that the mortgage to the plaintiffs conferred no title upon them, If that is so, it follows that the defendant is entitled to resist the plaintiff's suit on the ground that the mortgage is invalid,
whatever defects there may be in the plaintiffs title. Similarly, in the present case we have held the gift by the father to be beyond his authority in a joint Hindu family governed by the Mitakshara. So, such a gift can give no title to the plaintiff nor can he sue for possession under that title whatever may be the state of the title of the defendant. The learned Counsel for the appellant quoted a Bench ruling of this Court in Jogeshar Pande v. Deo Dat Pande A.I.R. 1924 All. 51 that an alienation by the manager of a joint Hindu family without necessity is not absolutely void but is voidable at the instance of the persons whose interests are affected by it. The facts of that case were different. There also the plaintiff failed. He desired to challenge an alienation made by the father as mortgagor of a joint Hindu family which the son who had a right to challenge did not challenge during the father's lifetime. There also the defendant was permitted to say to the plaintiff:
Who are you to come and disturb my possession when the person properly entitled to challenge my possession has not come forward
4. The reasoning of that case rather favours the respondent than the appellant in this case. In my opinion it was not necessary for the purposes of that case for the learned Judges to decide whether the transfer was voidable or void. The plaintiff of that case had no locus standi to bring the suit. The opinion that the transfer was voidable and not void appears to be in conflict with the categorical pronouncement of their Lordships of the Privy Council in the case of Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61 at p. 442 of 39 All. Their Lordships in unequivocal terms emphasised the general principle applicable to such a case:
It is well to keep the general principle applicable to such a situation in mind. There have been so many decisions by Courts of law on the exception to the principle that the principle itself has been apt to be forgotten. Under the law of the Mitakshara the joint family property owned, as stated, by all the members of the family as coparceners, cannot be the subject of a gift, sale or mortgage by one coparcener except with the consent, express or implied, of all the other coparceners. Any deed of gift, sale or mortgage granted by the coparcener on his own account of or over the joint family property is invalid, the estate is wholly unaffected by it and its entirety stands free of it.
5. In the present case when the property in suit is unaffected by the gift and stands free of it the plaintiff has no title to certain a decree for possession. To modify the force of this pronouncement the case of Hanuman Kamat v. Mandur  19 Cal. 123 was quoted on behalf of the appellant. In that case their Lordships were not called upon to decide the point definitely and did not base their decision on the point whether a sale by a Hindu father should be considered void or voidable. Their Lordships were: 'inclined to think that the sale was not necessarily void, but was only voidable if objections were taken to it by the other members of the joint family.'
6. The case, however, was decided on another point that the consideration paid by the purchaser failed when the purchaser found himself unable to obtain possession of the property purchased and that, therefore, the suit was within time. To such observations of doubt made in 1891 the same importance cannot be attached as to a definite pronouncement of a principle of law made subsequently in 1917. Another case of which support was sought on behalf of the appellant is that of Bishambhar Dayal v. Parshadi Lal  10 A.L.J. 112. In that case it was held by a single Judge that the mortgagor-father could not set up the invalidity of the mortgage as against his mortgagee merely on the ground that the other coparceners had not joined in executing the mortgage. In such a case there would be consideration of estoppel also. Where the mortgagor has been paid money under certain representations, the person who made those representations would be prevented from denying the consideration. I am of opinion that the plaintiff cannot claim possession on the basis of an invalid gift even though that gift has not been avoided by the son of the Hindu father who made the gift. I dismiss the appeal with costs.