Sadasiva Aiyar, J.
1. This is a Letters Patent Appeal against the judgment of Ayling, J. who dismissed Second Appeal No. 1191 of 1914 filed by the plaintiff in a suit brought by him for recovery of 2/3rd share in certain properties, the remaining 1/3rd share having already been recovered by the plaintiff's elder brother in suit No. 241 of 1906.
2. The facts are a little complicated but the material ones might be shortly stated thus:
(a)The plaintiff's father sold away all his then remaining properties to one Sawmi Aiyangar for Rs. 4,000/- under a sale-deed dated February 1885.
(b) Sawmi Aiyangar brought O.S. No. 221 of 1887 for possession of the properties so sold. Razinamah decree was passed that on payment of a certain amount within a certain date, Sawmi Aiyangar should give up his claims over the lands. But if the plaintiff's father failed to make the payment Sawmi Aiyangar was to get possession of the properties through the Court, his purchase being upheld. Plaintiff's father failed to make the payment and so Sawmi Aiyangar got possession in 1899.
(c) In 1906 the plaintiff's elder brother (who was in his mother's womb in 1885, the date of the sale by the plaintiff's father) brought the suit No. 241 of 1906 making the plaintiff and the plaintiffs father and the purchasers from Sawmi Aiyangar parties to the suit. The plaintiff's brother ultimately succeeded in getting his alleged 1/3rd share decreed to him on payment of 1/3rd of the amount of Rs. 3,706 to which extent the consideration for the sale deed to Sawmi Aiyangar was held binding on the entirety of the properties sold. The second appeal to the High Court in the plaintiff's brother's suit was decided on the 4th February 1910.
(d) The present suit was brought very soon afterwards by the plaintiff who was born on the 20th December 1901. I must add here that the plaintiff's father died in 1908 during the pendency of the appeal in the plaintiff's brother's suit of 1906.
3. The above being the facts, the questions for decision are, (1) Was the compromise decree in O.S. No. 221 of 1887 obtained by fraud and collusion as alleged in the plaint? (2) The plaintiff not having been in existence in the year 1885 when the plaintiff's father sold the plaint property to Sawmi Aiyangar or in 1887 when the decree was passed in Sawmi Aiyangar's favour or in 1889 when Sawmi Aiyangar got possession under the Razinamah decree in 1887, is the plaintiff entitled to question the said alienation? (3) Is the suit barred by limitation? (4) What share is the plaintiff entitled to recover and on what terms, if the other questions are decided in his, favour?
4. I might at once state on the 4th question that as the plaintiff's father was entitled to 1/2 share on the date of the alienation (the plaintiff's elder brother who was in his mother's womb being then entitled to the other 1/2 share) and as the alienation is binding on the plaintiff's father's share under the Pull Bench decision in Chinnu Pillai v. Kalimuthu Chetti I.L.R. (1910) Mad. 47 S.C. 21 M.L.J. 246, the plaintiff's elder brother in the suit of 1906 could have sued for the recovery of the other half share either on his own account or on behalf of himself and his younger brother, the plaintiff. But he chose to sue only for 1/3rd as belonging to himself and he has succeeded in getting a decree for that 1/3rd share in that suit to which the plaintiff was a party. So there remains only 1/6th share available to the plaintiff. The present suit for 2/3rd share is therefore clearly an exaggerated claim. Even as regards the 1/6th share, if he is entitled to recover it at all he can recover it only on payment of 1/6th of the Rs. 3,000 odd which was found in the former suit (to which he was a party) to be binding on the entire properties.
5. The question relating to the alleged fraudulent and collusive nature of the compromise decree in O.S. No. 221 of 1887 was not decided by the Lower Appellate Court and if the plaintiff succeeds on the other two questions the case will have to go back to that Court for a decision on that question.
6. As regards the second question, the plaintiff who was born in 1901 had no interest whatever in the properties when they were alienated in 1885 by his father. It is therefore prima facie a startling proposition to be told that he has a cause of action to set aside an alienation which took place 16 years before he was born and when he had no interest in the properties. But Mr. Venkatarama Sastriar relied upon the observations found in the Privy Council Case in Ramkishore Kedarnath v. Jainarayan Ram Rachhpal I.L.R. (1913) Cal. 966 : 25 M.L.J. 512, and the judgment of the present learned Chief Justice sitting on the Original Side reported in Ganesh Rao v. Tulja Eam Rao (1913) 26 M.L.J. 460. In Ramkishore Kedarnath v. Jainarayan Ram Rachhpal I.L.R. (1910) Mad. 47 S.C. 21 M.L.J. 246, the following passage occurs at page 980. 'Oh appeal to the Court of the Judicial Commissioner the learned Additional Commissioner held that as the 1st plaintiff had instituted the suit within three years of attaining the age of 21, he was entitled' (the suit having been brought to set aside an alleged alienation without consideration made by the father) 'to the benefit of Section 7 of the Limitation Act, and the suit was not barred as against him but he held that it was barred as against his younger brothers, who were born after the commencement of the adverse possession of the defendant Jainarayan. It was, however, conceded before this Board, and as their Lordships think rightly conceded, that if the 1st plaintiff succeeds in the suit, his younger brothers born before a partition of the estate will be entitled to share in the relief.' Now, in that case, when the suit was brought the plaintiffs (if I have understood the facts aright) were members of a Joint Hindu Family owning and possessed of properties other than those alienated - by their father. In the present case, the father had no other property in 1885 except the property alienated to Sawmi Aiyangar and he is not alleged to have acquired any other property afterwards. His half share hiving vested in Sawmi Aiyangar, he and his elder son never formed a Joint Hindu Family as there was no property to be held jointly. When the plaintiff was born in 1901, then also there was no joint property and hence no Joint Hindu Family. It seems to me therefore that the reasoning of their Lordships' decision in Ramkishore Kedarnath v. Jainarayan Ram Rachhpal I.L.R. (1913) C. 966 : 25 M.L.J. 512 does not apply to the facts of this case. If I am wrong in the above view, then it can only be on the ground that though the plaintiff's brother alone was entitled to the remaining half-share till the plaintiff was born, the plaintiff by his birth got an interest in that half share which till then belonged to the plaintiff's brother alone. That is, we must take it that though under the Mitakshara Hindu Law, the plaintiff gets by birth a right only in the ancestral property, and the property belonging solely to the elder brother cannot be called ancestral property in his hands when a question arises between him and his younger brother, plaintiff somehow obtained a right by birth to share in that property also. Speaking for myself, I am against any such extension of the (in my opinion unprogressive and unshastraic) mediaeval doctrine of right by birth.
7. In Ganesh Rao v. Tulja Ram Rao (1913) 26 M.L.J. 460, it was no doubt held that after-born sons are entitled to share with sons born before the alienation but in that case also it did not appear that the father and the prior born sons were not possessed of other family properties which remained as joint family properties, owned by the father and the prior born sons when a son was born subsequent to the alienation in dispute.
8. I am further of opinion that when the father and the elder son held no property in common after the father had alienated the whole of his interest in the Joint Family property, they became divided members. In Soundararajam v. Arunachellam Ghetty (1915) 29 M.L.J. 830 I have respectfully dissented from the observations found in Ganesh Row v. Tulja Ram Rao (1913) 26 M.L.J. 460, and Maharaja of Bobbili v. Venkataramanujulu Naidu : (1914)27MLJ409 , which held that a division into shares of the alienated properties does not take place on the alienation, of his share by a co-parcener. At least, in the case where he sells away his share in all the co-parcenary properties without exception, I am clear that a division in status takes place and he ceases to be a member of the Joint Hindu Family and if there is only one other co-parcener at the time of the alienation the joint family ceases to exist. If, as was recently held, by a Full Bench of this Court in Soundararajam v. Arunachellam Ghetty (1915) 29 M.L.J. 816 an unequivocally expressed intention to create a divided status effects division, the alienation of his interest by a co-parcener in all the joint family property in favour of a stranger seems to me, to be almost conclusive evidence of such an intention to break himself off from the joint status completely.
9. Further, the plaintiff's brother when he brought his suit for his alleged 1/3 share did not seek to set aside the alienation of 1885, in respect of the plaintiff's share whatever it may have been. As I said before, the only arguable position is (and even that position is in my opinion untenable) that the plaintiff's brother could have sued for the setting aside of the alienation of the half-share other than the father's half-share on behalf of himself and of the plaintiff. If he had done so and if the arguable position was also tenable, the alienation would have been set aside as regards half the property for the benefit of the plaintiff's brother and the plaintiff, and the plaintiff would have been entitled to an one-fourth share. But as the plaintiff's brother sued for recovery of his alleged one-third share in his own individual interest, that suit cannot be said to have been brought in the interests of the plaintiff and it cannot be held that the alienation was set aside in that former suit of 1906 as regards the interests of the plaintiff also in the plaint properties. The plaintiff therefore was bound in his own suit (that is, the present suit) by the terms of Article 126 of the Limitation Act which gives a period of 12 years, from the date when the alienee takes possession of the property, for a suit by a Hindu son to set aside his father's alienation. As the plaintiff's brother could have brought such a suit as regards the plaintiff's share also (assuming that plaintiff had a share) and did not do so, the plaintiff is now barred more than three years having elapsed from the date of the plaintiff's brother's attainment of majority when this suit was brought. See the Full Bench decision in Doraisami Serumadan v. Nondisami Saluvan I.L.R. (1913) M. 118 S.C. 25 M.L.J. 405.
10. Mr. Venktarama Sastriar's arguments strenuously and (as usual,) ably advanced, involved two propositions : (a) that the plaintiff's brother's cause of action to set aside the father's alienation (in respect of a half-share), which accrued on the date of alienation in 1885 became vested in the plaintiff jointly with the plaintiffs brother as soon as the plaintiff was born even in 1901; (or, perhaps conceived in 1900 or 1901); (b) that when the plaintiff's brother sued for his one-third share, the plaintiff got an independent cause of action for suing to set aside the alienation as regards the remaining one-sixth share and hence the plaintiff has got three years after he himself attains majority to bring a suit to set aside the alienation of that one sixth-share. I am unable to agree to either proposition and if either is negatived the plaintiff's suit fails. I would therefore dismiss the Letters Patent Appeal with costs.
11. I agree.
12. The facts are fully stated in my learned brother's judgment which I have had the advantage of reading.
13. The suit was brought in 1910 by the appellant, a minor, for a declaration that a sale made by his father in February 1885 was invalid, and for the recovery of such share of the properties as he might be found entitled to. The alienee took possession of the property in 1889. The appellant was born in December 1901, i.e., sixteen years after the property was sold by his father and more than twelve years from the date when the alienee too possession. The respondents are subsequent alienees who have purchased the properties.
14. Mr. Justice Ayling held that the suit must be treated as falling under Article 126 of the Limitation Act. In my opinion the learned Judge was right. In the case of suits governed by Article 126 the plaintiff's cause of action is the taking possession by the defendant of what was the son's joint share of the property. Prima facie, therefore, the suit was clearly barred by limitation. In order to entitle the appellant to succeed, it is necessary for him to set aside the alienation which stands in the way of his recovering his share of the property. It was not contended before us that any article other than Article 126 was applicable.
15. In support of his argument that the appellant, a subsequently born son, is entitled to sue to set aside the alienation made by his father, Mr. Venkatarama Sastri relied on the following passage in Mayne's Hindu Law 8th Edn. at pages 460 and 461. 'If the alienation was made by the father without necessity, and without the consent of sons then living, it would not only be invalid against them, but also against any son born before they had ratified the transaction; and no consent given by them after his birth would render it binding upon him;' and he cited the decisions reported in Ganesh Row v. Tulja Ram Row (1913) 26 M.L.J. 460, Tulsiram v. Babu I.L.R. (1911) A. 654, a and Ramkishore Kedarnath v. Jainarayan Ram Rachhpal I.L.R. (1913) C. 966.
16. None of these decisions are, I think, in point.
17. In Ganesh Bow v. Tulja Bam Bow (1913) 26 M.L.J. 460, the question for decision was 'Where a father and son constitute a joint family and a father alienates to a third party his share in a certain portion of the joint family property, and subsequently to the alienation but before partition of the joint family property, another son is born to the father, is such son entitled by birth to share to any, and if so, what extent in the unalienated moiety which did not pass to the alienee by virtue of the alienation, or is the eldest son entitled to the whole unalienated moiety to the exclusion of his younger brother'?. The learned Chief Justice held that subsequently born sons were entitled to participate in the remaining half of the property which remained joint family property.
18. As pointed out by my learned brother, the property which was alienated by the appellant's father was the only property which the family possessed and it is not alleged that the father subsequently acquired any other property.
19. Ganesh Row v. Tulja Ram Row (1913) 26 M.L.J. 460 is distinguishable as the family seems to hive possessed other joint family properties.
20. Tulsi Ran v. Rabu I.L.R. (1911) A. 654 merely decided that where an alienation of ancestral property is invalid as having been made without legal necessity by one member of the co-parcenary' without the consent of. the rest, it is open to co-parceners to object to such alienation notwithstanding that they were born subsequently thereto.
21. In Ramkishore Kedarnath v. Jaianarayan Ramrachpal I.L.R. (1913) C. 966 the facts shortly were, that the plaintiffs and their father were owners of a joint undivided estate and the father improperly made a disposition of a portion of it. The additional Judicial Commissioner held that the suit which was brought by 1st plaintiff the eldest brother within 3 years of his attaining majority was not barred as against him, but was barred as against his younger brothers who were born after the possession of the defendant became adverse. Their Lordships of the Privy Council observe as to this 'It was however conceded before this Board, and as their Lordships think rightly conceded that if the 1st plaintiff succeeds in the suit his younger brother born before a partition of the estate will be entitled to share in the relief'. In that case, however, the plaintiff formed a member of a joint family, and possessed joint family properties other than those alienated.
22. Coming now to the facts of the present case, speaking for myself, it must, I think, be held having regard to the decision in Nanjaya Mudali v. Shanmuga Mudaii (1913) 26 M.L.J. 576 and Maharaja of Bobbili v. Venkataramanujulu Naidu : (1914)27MLJ409 , that even after alienating his share the appellant's father continued to be a member of the joint family at the time of the appellant's birth, the family did not however possess any joint family property, the father having alienated his share, and it appears to me that by his birth the appellant did not obtain any interest in the property, there being no joint family property then in existence. Bholanath. Khettry v. Kartick Kissendas Khettry I.L.R. (1907) C. 372. On his birth a son gets an interest in what is left of the ancestral property. If however, I am wrong on this point, I agree with my learned brother that assuming that the appellant's brother Govindasami instead of suing merely for the recovery of his one-third share of the property could have sued for the recovery of the half share inclusive of his minor brother's share, as he did not do so, the appellant's suit was barred by limitation. See Doraisami Serumadan v. Nondisami Saluva I.L.R. (1918) M. 118 S.C. 25 M.L.J. 405.