Henry Richard, C.J. and Pramada Charan Benerji, J.
1. The suit which has given rise to this appeal was brought by the plaintiff appellant for a declaration that a sale-deed, dated the 17th of August, 1909, executed by his father Hansraj Singh in favour of Naurang Singh, the predecessor in title of the defendants, is null and void as against the plaintiff. The validity of the sale is questioned on various grounds. The lower court has dismissed the suit on the finding that the plaintiff was born after the date of the sale and is not, therefore, entitled to question its validity. It has further been found that the plaintiff was in his mother's womb when the sale was made, and it is not disputed for the purposes of this appeal that the property sold is ancestral property. The question to be determined in this appeal is whether a son who was in his mother's womb at the date of an alienation by the father, of ancestral property can contest the alienation. The decision of this question depends on the further question whether a son in the mother's womb can be deemed to be a co-owner of joint ancestral property.
2. Under the Mitakshara a son acquires an interest in ancestral property by birth, the reason for the rule being, as pointed out by Mr. Golap Chandra Sarkar in his Work on Hindu Law, page 210, 4th edition, that the father and other ancestors are reproduced in the son. The question is whether birth relates back to the period when the child was in its mother's womb. Under other systems of law, such as the Civil Law and the English Law, a child is deemed for some purposes to be born when it is in its mother's womb. This rule is in several instances recognized by the Hindu law. In the case of succession by a posthumous son he takes a share in his father's property from the date of his father's death, and he is regarded as being in existence though he is only in his mother's womb and not actually born until afterwards. Again, in the case of partition, a son in utero at the time of partition is deemed to be in existence and the partition may either be postponed or a share should be set apart for him. See Strange's Hindu law, page 182, Jolly's Tagore Law Lectures, page 132, Kalidas Das v. Krishan Chandra Das (1869) 2 B.L.R. 103 F.B.; Mayne's Hindu Law, Section 472, 7th edition). It has also been held that the 'rights of a son in the womb could not be defeated by a will made by the father.' Hanmant Ramchandra v. Bhimacharya (1887) I.L.R. 12 Bom. 105 and Minakshi v. Virappa (1884) I.L.R. 8 Mad. 89. So that, in the cases of succession, partition and will, a son in the womb has been regarded as one in esse. There is nothing to show that in the case of an alienation by sale a different rule obtains. Our attention has not been called to any text of Hindu Law in which an alienation has been excluded from what is deemed to be the general rule. The courts below have relied on a passage in Mr. Golap Chandra Sarkar's Hindu Law, page 210, 4th edition, which is as follows : - 'A child in the womb is not entitled to all the rights of a child in esse. A son's right of prohibiting an unauthorized alienation by the father, of ancestral property cannot be exercised in favour of an unborn son.' The learned author has referred to the case of Mussamut Goura Chowdhrain v. Chummun Chowdry (1864) W.R. Gap. No. 340 as an authority for the proposition laid down by him. That case no doubt supports his view, but it was dissented from by the Madras High Court in Sabapathi v. Somasundram (1892) I.L.R. 16 Mad. 76. The learned Judges held that 'an alienation by a Hindu to a bond, fide purchaser for value is liable to be set aside by a son who was in his mother's womb at the time of the alienation.' In the recent case of Sri Datla Venkata Subba Raju Garu v. Gatham Venlcatrayudu : (1914)27MLJ580 , the same court assumed that a son could contest an alienation made by his father at a time when the son was in his mother's womb. The same view appears to have been adopted by the Bombay High Court. (See West and Buhler's Hindu Law, page 803). We agree with this view. Both on authority and on principle we are of opinion that a son subsequently born alive is competent to contest an alienation made by the father when the son was in the womb. The court below was, therefore, wrong in dismissing the suit on the ground on which it dismissed it. We allow the appeal, set aside the decree of the court below and remand the case to that court with directions to re-admit it under its original number in the register and dispose of the other questions which arise in the case. Costs here and hitherto will be costs in the cause.