Krishnamoorthy Iyer, J.
1. Defendants 1 and 2 are the appellants. The first appellant died and his legal representatives have been impleaded as additional appellants 3 to 9. The facts relevant for the disposal of the appeal are stated here. Respondents 24 and 25 are brothers, being the sons of Karuppudayan. Respondents 1 and 2 who instituted the suit in the court below are the sons of the 24th respondent. It is admitted by both sides that these parties are governed by Hindu Mitakshara Law. The suit properties were demised on verumpattom by the Cochin Sirkar in favour of a tarwad. The rent due to the Cochin Sirkar under the demise was Rs. 1224-8-2 per annum. Karuppudayan got an assignment of the verumpattom right from the members of the tarwad and after his death it devolved on respondents 24 and 25, who executed an assignment Ext. B-5 dated 4-6-1937 in favour of Karuppaswami Chettiar. The rights under Ext. B-5 were assigned by Karuppaswami Chettiar under Ext. B-1 dated 10-7-1940 to the first appellant and his brother Perumal Mudallar. Respondents 3, 4 and 5 are the sons of Perumal Mudaliar. The right under Ext. B-1 was partitioned between the first appellant on the one hand and respondents 3 to 5 on the other under Ext. B-2 dated 4-3-1951 and the appellants are in possession of one half of the plaint items while the Other half is in the possession of respondents 3 to 5. The 26th respondent is the mortgagee of respondents 3 to 5 in respect of their interests in the plaint items. Respondents 24 and 25 effected a partition of their joint family properties under Ext. B-3 dated 18-5-1954. The properties which fell to the share of the 24th respondent were divided under Ext. A-4 dated 11-4-1957 to which the 24th respondent and respondents 1 and 2 were parties.
2. The suit was instituted by respondents 1 and 2 for partition and recovery of their 2/6th share in the plaint items on the ground that Ext. B-5 is not supported by consideration and family necessity and could not bind the interests of respondents 1 and 2 in the plaint items and for other reliefs. It was alleged in the plaint that the first respondent was four days old on the date of Ext. B-5 having been born on 1.6.1937 and the second respondent was born subsequent to Ext. B-5. The second respondent was a minor on the date of the suit represented by the first respondent.
3. The suit was contested mainly by the appellants, respondents 3 to 5 and 26. Their main contentions were that Ext. B-5 is supported by consideration and family necessity and binding on the interests of respondents 1 and 2 in the plaint items, that the first respondent also was an afterborn son and therefore respondents 1 and 2 were not competent to impeach Ext, B-5, that the suit is barred by limitation and adverse possession and that respondents 1 and 2 are debarred from filing the suit on account of Exts. B-3 and A-4.
4. The trial court held that the first respondent was born on 1-6-1937 prior to Ext. B-5, that the suit is not barred by limitation having been filed within 3 years of the first respondent attaining majority, that Ext B-5 is not supported by family necessity and therefore not binding on the interests of respondents 1 and 2 in the plaint items. The court below held that the alienees under Ext. B-5 would be entitled to yet the share of the 24th respondent in the plaint items as on the date of Ext. B-5 which was 1/4. The suit was therefore decreed allowing respondents 1 and 2 to recover 1/4 share in the plaint items with consequential reliefs.
5. Respondents 1 and 2 have filed a memorandum of objections claiming 2/6th share in the plaint items.
6. The learned advocate for the appellants did not challenge the findings of the court below that the first respondent was born on 1-6-1937 prior to Ext. B-5 and that the suit was not barred by limitation. But he contended that respondents 1 and 2 are debarred from filing the suit on account of Exts. B-3 and A-4 and that Ext. B-5 is supported by family necessity.
7. In support of the first point it was urged by the appellants' advocate that the suit is not maintainable without seeking to reopen Exts. B-3 and A-4 which can be done only on the ground of mistake or fraud. In support of his contention the learned advocate relied on the following passages from Mulla's Principles of Hindu Law, 12th Edition, page 514, paragraphs 337 and 338:
'337. Fraud -- A partition may be reopened, if any coparcener has obtained an unfair advantage in the division of the property by fraud upon the other coparceners.
338. Mistake -- Where, after a partition has been made, it is discovered that property allotted to one of the coparceners did not belong to the family, but to a stranger, or that it was subject to a mortgage, the coparcener to whom such property has been allotted is entitled to compensation out of the shares of the other coparceners, and the partition may, if necessary, be reopened for readjustment of the shares.'
8. We do not think that the above passages have any relevancy to this case.
9. On the dates of Ext. B-3 and A-4 the plaint properties were not available for partition as they were alienated under Ext. B-5. Under Hindu Law it is well established that where an; item of joint family property was left out in the partition by mistake, fraud or accident it is not necessary to reopen the partition and that the right of the coparceners in the excluded property will not be lost by the partition entered into and can be enforced by a fresh partition of that property. So long as there is no infirmity attached to the partition deed in respect of the properties included therein, no question of reopening the same arises. If it is fount that the property allotted to a sharer is charged for the benefit of a stranger, or if it is discovered that it does not really belong to the joint family and the sharer is subsequently dispossessed thereof or that a fraud has been practised by one of the coparceners at the time of the partition to gain an unfair advantage for himself the partition is liable to be reopened at the instance of the party prejudiced by such mistake or fraud. The question of partitioning by metes and bounds a joint family property unauthorisedly alienated by the father or manager can arise only when the joint family property is recovered for the family after avoiding the alienation.
10. The first respondent who on the date of Ext. B-5 was a member of the coparcenery of the joint family of respondents 24 and 25 was entitled to impugn Ext. B-5. Since the second respondent was born during the lifetime of the first respondent though subsequent to Ext. B-5 he has also a right to avoid the alienation.
11. The right of an afterborn son to challenge the alienation by a father was recognised in Panchaiti Akhara v. Surajpal Singh AIR 1945 PC 1 at p. 3, in the following words:
'It is asserted that a member of it 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 the overlapping of the two lives enables the later-born child to contest the validity of the father's act.'
12. J. Duncan M. Derrett in his Introduction to Modern Hindu Law, page 294, paragraph 475, observed:
' 'After-born' coparceners cannot sue to set aside alienations made before their conception Or adoption, as the case may be. But overlapping of lives may give this very right to them. If at the time of his conception there existed an unexpired right amongst the coparcenery body to challenge the same alienation, the joint family property in which he acquired a birthright includes the 'invisible' asset, the property whose alienation could be effectively challenged, an asset which, like an equity of redemption, may turn out to be of great value. The rule is not open to abuse because, although a succession of minors might otherwise extend the period of challenge over a long space of time, it is settled (fortunately but not very convincingly) that the period of limitation will in no circumstances be extended by this 'overlapping'.'
Subba Rao, J., in Guramma Bhratar v. Mallappa Chanbasappa AIR 1964 SC 510 at p. 515 stated the relevant principles thus:
'A coparcener, whether he is natural born or adopted into the family, acquires an interest by birth or adoption, as the case may be, in the ancestral property of the family. A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. An alienation can also be made by a managing member with the consent of all the coparceners of the family. The sole surviving member of a coparcenery has an absolute power to alienate the family property, as at the time of alienation there is no other member who has joint interest in the family. If another member was in existence or in the womb of his mother at the time of the alienation, the power of the manager was circumscribed as aforesaid and his alienation would be voidable at the instance of the existing member or the member who was in the womb but was subsequently born, as the ease may be, unless it was made for purposes binding on the members of the family or the existing member consented to it or the subsequently born member ratified it after he attained majority. If another member was conceived in the family or inducted therein by adoption before such consent or ratification, his right to avoid the alienation will not be affected . . . . In the instant case the impugned alienations were made at a time when the 4th defendant was in the womb i.e., at a time when Chanbasappa had only a limited right of disposal over the joint family property. The 4th defendant being in the womb, he could not obviously give his consent nor ratify the alienations before the adoption of the 3rd defendant took place and he was inducted in the family. If the alienations were made by the father for a purpose not binding on the estate, they would be voidable at the instance of the 3rd or 4th defendant.'
An alienation made by a coparcener, manager or father in excess of his powers is liable to be set aside at the instance of the other coparceners. An alienation of ancestral property by the father or manager of the joint family, even when not for the discharge of antecedent debt or for the benefit or necessity of the family is only voidable and not void.
13. The right to impeach an unauthorised alienation of the joint family property is inherent in every member of the coparcenery, even in afterborn coparceners as above mentioned. If so, how can this right be taken away by a partition of the remaining joint family properties among all the coparceners. There is no principle of law by which it can be said that such right of the non-alienating coparceners to avoid the transaction will be extinguished by the subsequent partition. The suggestion underlying the argument by the learned advocate for the appellant is that either the division of the remaining joint family properties has to be postponed until the unauthorised alienations are set aside or it must be deemed that by the partition of the remaining properties the right of the coparceners to impeach the alienation has been extinguished. No authorities were cited in support of the position contended for by the learned advocate. It is possible to divide only those properties which are at the disposal of the joint family on the date of the partition.
The right of the coparceners to recover coparcenery property lost to the joint Hindu family cannot at all be affected on account of a partition either consensual or through court. Such right can always be exercised subject to any rule of limitation or estoppel. If the unauthorised alienation has been ratified by the non-alienating coparceners in the deed of partition, then at least it can be argued that the suit is not maintainable. The matter is stated succinctly by Raman Nayar J., in Thomas v. Kesavan Namboodiri ILR (1963) 2 Kerala 238 at pp. 250 and 251: (AIR 1964 Kerala 144 at p. 147). 'But, it seems to me that the true position is that a joint family is a group of persons the membership of which, and the manner in which the members whereof hold joint property and Joint rights, are regulated by law. It is a concept or institution which is a creature of the law and not of act of parties (though act of parties can put an end to it) and that is why It is called a legal entity. Property and other rights are Jointly held by all the members of the family and, surely, those rights cannot disappear by reason of an arrangement between the members whereby certain rights are thereafter to be held by one or more of the members to the exclusion of the rest. The right to avoid an alienation made by a manager is a right which inheres personally in each individual member of a joint family although he must exercise it not for himself alone but for the benefit of all, and, if in a partition, any particular right is not the subject-matter of allotment, it seems to me that it must still belong to all the members of the original joint family, whether as tenants-in-common or as coparceners is a matter of no consequence.'
14. It therefore follows that the mere execution of Exts. B-3 and A-4 in respect of the remaining properties of the joint family cannot in any way affect the right of respondents 1 and 2 to impeach Ext. B-5.
15. Then the question arises whether there is anything in Ext. B-3 or A-4 which evidences a ratification of Ext. B-5 by the first respondent. The second respondent was not a party to Ext. B-3 and since he was a minor he was represented in Ext. A-4 by the first respondent. The first respondent was a minor on the date of Ext. B-3 and he was represented by his father therein. So no question of ratification of Ext. B-5 by the first respondent can arise on the basis of Ext. B-3. Even if there was any ratification of Ext. B-5 by the first respondent on account of Ext. A-4 that cannot in any way affect the right of the second respondent to avoid the transaction. But we are of the view, that there is no ratification of Ext. B-5 by the first respondent. Section 198 of the Contract Act says that 'no valid ratification can be made by a person whose knowledge of the facts of the case is materially defective'. The burden is on the appellants to prove that the first respondent ratified Ext. B-5. None of the contesting defendants were examined. Ext. A-4 does not make any reference to Ext, B-5. Even assuming that a case of ratification of Ext. B-5 is set up in the pleadings in the absence of any evidence to show that the first respondent was aware of the defects in Ex. B-5, it is not possible to agree with the learned advocate for the appellants that it was ratified on account of Ext.A-4.
16. Lord Romer observed in Smt. Premila Devi v. Peoples Bank of Northern India Ltd., AIR 1938 PC 284 at p. 289 thus:
'There can in truth be no ratification without an intention to ratify, and there can be no intention to ratify an illegal act without knowledge of the illegality.'
17. In view of the principles stated above, it has to be held that there is no ratification of Ext. B-5 by the first respondent.
18. The second point raised by the appellants' advocate relates to the binding nature of Ext. B-5 on the interests of respondents 1 and 2 in the plaint items. The burden is on the appellants to establish that Ext. B-5 was supported by legal necessity or benefit of the family, or that the alienee made bona fide and reasonable enquiries which made him believe that the necessity existed even though no such necessity did in fact exist. The necessity for Ext. B-5 is mentioned in paragraph 5 of the written statement of appellants 1 and 2 thus:--
'The sale in favour of the predecessor-in interest of these defendants in 1937 was a perfectly valid one which is binding on the plaintiffs and their father. The plaintiffs are not entitled to question its validity or binding nature on them. The sale was for consideration which is valid and correct. It was a perfectly valid transaction entered into for the benefit of the family of the vendors. The consideration was adequate. The reasons mentioned in the sale deed are good and correct.'
19. The only reasons given in Ext. B-5 for the necessity of the sale is that respondents 24 and 25 found it difficult to manage the properties as they were residing in two separate places and as the family possessed properties including the plaint properties in two separate places. From Ext. B-5 it is seen that respondent 24 was residing in Pudussery village and respondent 25 was residing in Polpully village. The plaint items are situated in Pudussery village. P.W. 3 deposed that the plaint items were situated only at a distance of four miles from the place of residence in Pudussery village. The alienee has not been examined. There is no averment by the appellants that the income from the property was not sufficient to pay the rent due to Cochin Government, though this contention was raised before us by the advocate for the appellants. There is no suggestion that the plaint properties were unproductive on the date of Ext. B-5 Even if it is assumed without deciding that an alienation of joint family property by the manager or father for acquiring other properties or other suitable family assets is binding on the non-alienating coparceners, a sale of land even at a good price without the immediate anticipation of replacing it by equally suitable and profitable assets is not binding on their interests. There is no evidence in the case on hand even to suggest that on the date of Ext. B-5 there was any proposal to purchase any other property with the consideration received under Ext. B-5. The recitals in Ext. B-5 will show that there could not have been any such idea. The consideration for Ext. B-5 is Rs. 12,000/-. This was made up of by paying Rs. 1000/- on 22-5-1957 in pursuance of an agreement of sale, Rs. 6000/-paid in cash on the date of Ext. B-5 and by executing a mortgage in respect of the plaint items by the vendee in favour of the vendors for the balance of Rs. 5000. The mortgage document is not in evidence. There is no knowing when this amount was paid off. The sale under Ext. B-5 was therefore a conversion of the immovable property of the joint family into liquid cash with no object of investing it or of acquiring any other property on behalf of the family. The suggestion in the cross-examination of P.W. 1 about the purchase of certain properties on behalf of the family was not accepted. A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. Sri. Kuttikrishna Menon, relying on the decision in Tagatnarain v. Mathura Das AIR 1928 All. 454 (FB) contended that the manager of a joint family can sell joint family property not only for a defensive purpose but also where circumstances are such that an owner of property would alienate it for consideration which he regards as adequate. Their Lordships of the Supreme Court while approving the principle of law stated in AIR 1928 All 454 (FB) observed in Balmukand v. Kamla Wati AIR 1964 SC 1385 at p. 1387.
'In support of his contention he has placed reliance on three decisions. The first of these is ILR 50 All 969: AIR 1928 All 454 (FB). That is a decision of the Full Bench of that High Court in which the meaning and implication of the term 'benefit of the estate' as used with reference to transfers made by a Manager of a joint Hindu family was considered. The learned Judges examined a large number of decisions, including that in Hunooman Persaud Pandey v Babooee Mundraj Koonweree, 6 Moo Ind. App 393 (PC); Sahu Ram Chandra v. Bhup Singh, I.L.R. 39 All. 437: AJR 1917 P.C. 61 and Palaniappa Chetty v. Devasikamony Pandara Sannadhi, 44 Ind. App. 147: AIR 1917 P.C. 33 and held that transactions justifiable on the principle of benefit to the estate are not limited to those which are of a defensive nature. According to the High Court if the transaction is such as a prudent owner of property would, in the light of circumstances which were within his knowledge at that time, have entered into, though the degree of prudence required from the manager would be a little greater than that expected of a sole owner of property (sic). The facts of that case as found by the High Court were:
. . . .the adult managers of the family found it very inconvenient and to the prejudice of the family's interests to retain property, 18 or 19 miles away from Bijnoor, to the management of which neither of them could possibly give proper attention that they considered it to the advantage of the estate to sell that property and purchase other property more accessible with the proceeds, that they did in fact sell that property on very advantageous terms, that there is nothing to indicate that the transaction would not have reached a profitable conclusion. . ... (p 979 of ILR All): (at pp. 457, 458 of AIR): We have no doubt that for a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character. But what transaction would be for the benefit of the family must necessarily depend upon the facts of such case. In the case before the Full Bench the two managers of family found it difficult to manage the property at all with the result, apparently, that the family was incurring losses. To sell such property, and that too on advantageous terms, and to invest the sale proceeds in a profitable way could certainly be regarded as beneficial to the family. 'In the present case there is unfortunately nothing in the plaint to suggest that Pindidas agreed to sell the property because he found it difficult to manage it or because he found that the family was inclining loss by retaining the property. Nor again is there anything to suggest that the idea was to invest the sale proceeds in some profitable manner. Indeed there are no allegations in the plaint to the effect that the sale was being contemplated by considerations of prudence. All that is said is that the fraction of the family's share of the landowned by the family bore a very small proportion to the land which the plaintiff held at thedate of the transaction.' But that was indeed thecase even before the purchase by the plaintiffof the 23/120th share from Devisahai. Thereis nothing to indicate that the position of thefamily vis-a-vis their share in the land had inany way been altered by reason of the circumstance that the remaining 17/20th interest inthe land came to be owned by the plaintiffalone. Therefore, even upon the view taken inthe Allahabad case the plaintiff cannot hope tosucceed in this suit.' (The underlining (hereinto ' ') is ours).
20. In the appeal before us also the position is much the same as was in AIR 1964 SC 1385 namely that there was no idea at the time of Ext. B-5 to invest the sale proceeds in any profitable way. Beaumont, C. J., in Hemraj Dattubuva v. Nathu Ramu, AIR 1935 Bom. 295 at p. 298 observed:
'The question whether a transaction is for Hie benefit of an estate or not involves the consideration of something more than merely whether the purchase price paid is a good price; it involves the further question of what is to be done with the purchase-money. In the present case the purchase-money was invested in business, so that the ultimate result of the transaction was that the minor, in the place of a piece of land worth Rs. 600 had an interest costing Rs. 900 in a business; but whether that interest was worth more than Rs. 600 does not appear on the evidence. To sell a piece of land at a very good price would not be beneficial if the purchase-money was to be invested in an insolvent business. However, apart from that consideration, the manager of a minor under Hindu law is not entitled to sell merely for the purpose of enhancing the value of the property of the minor, or for increasing the minors income. On the other hand I am not prepared to go quite so far as Patkar, J., went in ILR 53 Bom. 419: (AIR 1929 Bom. 251), and to say that no transaction can be for the benefit of the minor which is not of a character to protect or preserve property of the minor.
* * * * In the present case there is nothing to justify the sale except the fact, which I accept, that the price obtained was greater than that which would normally be obtained in the market. Apart from the fact that we have no satisfactory evidence as to the manner in which the purchase-money was to be dealt with, I think that a sale of that character and for that purpose is not justified by the cases to which I have referred.'
21. It is therefore clear that the finding of the trial court that Ext. B-5 is not binding on the interests of respondents 1 and 2 does not call for any interference.
22. We are now left with the memorandum of objections filed by respondents 1 and 2 which raises the question of the extent of the share they are entitled in the plaint property. The claim of respondents 1 and 2 was to recover 2/6th share while the learned Judge allowed them only 1/4th share. The learned Judge took the view, that the share of the 24th defendant out; at the alienors in Ext. B-5 should be fixed as on the date of the alienation and i so it would be 1/4 and the respondents therefore are entitled to only 1/4 share in the plaint items. The correctness of this finding of the learned Judge was canvassed by the learned advocate appearing for respondents 1 and 2 quoting the following passage in Mayne's Hindu Law and Usage, 11th edition, at page 499:
'Where an alienation was made by a father or other manager, without necessity, and without the consent of sons or other coparceners then living, it would not only be invalid against them, but also against any son or coparcener 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. If a previous alienation of any portion of the family property was validated by consent or failure to set it aside in time on the part of the other members of the family then in existence, the property in which he acquires a share at birth is diminished to the extent of the portion thus alienated. If the 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 MLJ 395; AIR 1945 PC 1. Where their Lordships observed: '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 when that overlapping of the two lives enables the later-born child to contest the validity of the father's act'. Their Lordships then examined the evidence and came to the conclusion that the first born son did not die until after the birth of a younger brother and held that the minor sons were entitled to challenge the validity of the mortgage sued upon.'
On the basis of the above passage and the decision in AIR 1945 PC 1 the learned advocate contended that the right of the alienee which is Only a right in equity has to be fixed not on the date of Ext. B-5, but on the date of the institution of the suit.
If so, respondents 1 and 2 will be entitled to get 2/6th share instead of 1/4th in the share as found by the Judge.
23. II is unnecessary in this appeal to consider the nature of the rights of an alienee of joint family property from a coparcener and about the method of working out those rights. The only question that falls to be decided is the extent of the share in the plaint property which the alienee is entitled to get on the basis of Ext. B-5. The passage from Mayne on Hindu Law and Usage quoted above and the decision in AIR 1945 PC 1 do not deal with this aspect at all. They only consider the question when & under what circumstances an afterborn coparcener can challenge the alienation of coparcenery property. The extent of the share which an alienee of one of the coparceners is entitled to claim in the joint family property came up for consideration in Vasireddi v. Lakshminarasimham: AIR 1940 Mad 691 at p. 695:
'In the present case at the date of the alienation the father was entitled to a half share in the joint family property and that interest which was vested in him would pass to the mortgagee. The property which has been effectively carried away from the family was only a half and the other half would still be the joint family property and it is only in that half and in the equity of redemption in the other half, the alienation being a mortgage, the afterborn son would be entitled to participate with the other son. This is in strict consonance with the principles of Hindu law that in a Mitakshara family a member acquires right by birth only in the property which was then in existence and not in the property which has effectively carried away from the family. In so far as the alienation of the father's interest is concerned, it must be deemed to have been effectively away because he is entitled to alienate it for value.'
Before leaving the decision in AIR 1940 Mad 691 it has to be stated that though it has been held in that decision that the right to challenge alienations of family property is confined to coparceners alive on the date of the alienation disapproving the decision in Chandramani v. Jambeswara, AIR 1931 Mad 550 the latter decision has been approved by the Supreme Court in AIR 1964 SC 510 wherein the right of an after-born coparcener to question an unauthorised alienation of coparcenery property has been upheld in the circumstances mentioned therein. In Peramanayakam v. Sivaraman AIR 1952 Mad 419 (FB) it has been held that 'the share or in other words the fraction of the share which the alienee acquires is unalterably fixed on the date of the alienation and is not subject to fluctuation either by subsequent births or deaths in the family and In all respects his rights must be determined and equities worked out as on the date of the alienation'. This is the law in the State of Madras ever since the decision in Chinnu Pillai v. Kalimuthu Chetty (1912) ILR 35 Mad 47. In this view, we have to hold that the decree of the lower court allowing respondents 1 and 2 1/4 share is correct and has to be upheld.
24. In view of the above, we are of the opinion that both the appeal and the memorandum of cross-objections are without any substance. They are dismissed with costs.