1. The appellant is the plaintiff, an infant of 41/2 years, who sues, nominally by his next friend his maternal uncle, to set aside, so far as his share is concerned, certain alienations made by his father, the 1st defendant. The appeal relates to items 4, 5, 10 and 12. Items 4 and 5 were sold to the 5th defendant in July 1887, two months before plaintiff was born. Item 10 was sold to 6th defendant in September 1888 a year after plaintiff's birth, and item 12 in April 1887.
2. With reference to these transactions the Subordinate Judge found that the sale of items 4 and 5 was bona fide, and supported by consideration, and that the sale was valid and binding on the plaintiff, that the sale of item 10 took place in discharge of antecedent debts which are not shown to have been immoral: and that as the plaintiff was not born at the time when item 12 was sold to the 8th defendant, he cannot object to the alienation.
3. [After holding that the sale of items 4, 5 and 10 was valid the judgment proceeds:]
With reference to item 12, it is admitted that the sale was not made to discharge an antecedent debt and the only question is whether the plaintiff who was not born until 4 1/2 months after this transaction is entitled to dispute it. It is argued that the son's interest in ancestral property exists even before birth. A son cannot object to an alienation validly made by his father before he was born or begotten, because it, is by birth only that he obtains an interest in property then existing in his ancestor--(Mayne's Hindu Law, Section 316.) The question is whether the right of the son to take objections to the alienation of the father dates from the hour of his birth or from that of his conception. The right of an after-born son to share as a coparcener property which has already been divided depends upon his being in the womb of his mother at the time of partition. This indicates that under Hindu law membership with the family is considered as commencing from conception, (see Smrithi Chandrika I, 27). In Regular Appeals 53 and 54 of 1877 (Mutia Ghetty v. The Collector of Madras) it was held by a bench of this Court that a father could not make a gift of ancestral property so as to defeat the rights of a son in the womb. Following this decision the court held in Minakshi v. Virappa I. L. R. 8 M 89 that the rights of a son in the womb could not be defeated by a will made by the father. In a case Mussumat Gowra v. Chunimun Chowgry, reported at page 340 of S. W. R, for 1864 Norman C. J. and Kemp J. held that a child in the womb takes no estate and that a son was not entitled to set aside a deed of compromise executed by his father while he was utero matris. But by a rule know generally adopted in jurisprudence, for certain purposes, existence begins before birth. As Blackstone says 'an infant in ventre sa mere is supposed to be born for many purposes. It is capable of having a legacy or a surrender of a copy-hold estate made to it. It may have an estate assigned to it, and it is enabled to have an estate limited to its use and to take afterwards by such limitation as if it were then actually born' (1 Bl. Com. 130). As Domat says, (Civil law, Part II, Book II, Section 1, para. 2797), 'The children not yet born when their fathers die are reckoned in the number of children who succeed. Although not born when the succession which they are to inherit falls to them by the death of the father or mother or other relations, yet they belong to them upon condition that they shall be born alive, and they are considered as hens already before their birth.
4. We see therefore no difficulty in holding that the right to inherit ancestral property accrues at the time of conception and not at birth. It is said that this was expressly decided by this Court in Regular Appeals 43 and 46 of 1874, but on referring to the record we find that no judgment was recorded in those cases,
5. We concede that, as remarked by the learned judges who decided Minakshi v. Virappa, there are obvious reasons for holding that a purchaser for value is not bound to enquire whether the wife of his vendor is enceinte, but as it appears to us that under Hindu Law as under other systems of law a son conceived is equal to a son born, we must hold that an alienation to a bona fide purchaser for value is liable to be set aside to the extent of the son's share, by a son who was in his mother's womb at the time of the alienation.
6. The decree of the Lower Court will therefore be modified by allowing plaintiff to recover on payment his half share in item 12. In other respects the decree of the Lower Court is confirmed and the appellant must pay the respondent's costs.