Krishnaswami Nayudu, J.
1. Plaintiff is the appellant. As assignee of a mortgage he instituted O.S. No. 50 of 1948 on the file of the Subordinate Judge's court, Chingleput, against defendants 1 and 2 who are the minor sons of one Subbaraya Reddi, for a mortgage decree on a mortgage executed by Subbaraya Reddi in favour of one Munuswami Reddi on 9-7-1925 for Rs. 4000 and assigned by Munuswami Reddi in the plaintiff's favour on 15-4-1943. Subbaraya Reddi had three sons, one Dasu Reddi who is alive and who is not made a party, and defendants 1 and 2 who are minors and are represented by a guardian 'ad litem'. Subbaraya died in 1944. On 29-11-1940 his eldest son Dasu Reddi executed 'a release, Ex. A. 8, taking away his one-fourth share and releasing his rights in the joint family and its properties. Exhibit A. 8 makes it clear that thereafter he shall have only blood relationship and that there shall be no right as regards assets and liabilities.
2. It may be necessary to refer to the transactions which led to the mortgage and the assignment. Subbaraya Reddi was possessed of 28 acres 47 cents nanja and punja lands which are stated to be his ancestral properties, and on 24-7-1920 by Ex. A. 3 he executed a usufructuary mortgage in favour of Munuswami Reddi the mortgage in the suit mortgage under Ex. A. 1, for Rs. 4000. On 31st July 1920 under Ex. A. 4 there was a further mortgage for Rs. 250 on 2 acres only, all the 28 acres 47 cents having been mortgaged under the usufructuary mortgage, Ex. A. 3. On 20-7-1921 Subbaraya Reddi sold 7 acres 52 cents out of the properties mortgaged under Exs. A. 3 and A. 4 to the mortgagee Munuswami Reddi for Rs. 2800. The sum of Rs. 2800 was paid by Munuswami Reddi by adjustment of a sum of Rs. 2125 towards the amount due on the mortgages, Exs. A. 3 and A. 4 and the balance of Rs. 675 was appropriated towards the debt due by Subbaraya to Munuswami Roddi on a promissory note dated 5th November 1920. The entire consideration of Rs. 2800 for the sale was thus accounted for. After the lapse of about four years, on the 9th July 1925. Subbaraya Reddi purchased from Munuswami Reddi 6 acres 34 cents out of the 7 acres 52 cents sold by him on 28-7-1921 under Ex. A. 5 for the sum of Rs. 3000 the sale deed being Ex. A. 7. On the same date Subbaraya Reddi executed a simple mortgage in favour of Munuswami Reddi, the vendor under Ex. A. 7, and the mortgagee under Exs. A. 3 and A. 4, mortgaging 25 acres 32 cents including the 6 acres 34 cents purchased by Subbaraya under Ex. A. 7 on that date. The consideration for the sale and the mortgage was provided in the following manner: Rs. 3000 was the sale price for the sale under Ex. A. 7 out of which Rs. 2038 was included as pan of the consideration of Rs. 4000 in the mortgage Ex. A. 1. For the balance Munuswami adjusted a sum of Rs. 880 towards the amount due under a promissory note executed by Subbaraya in favour of Munuswami and the balance of Rs. 82 is stated to have been paid in cash by Munuswami Reddi to Subbaraya. As for the sum of Rs. 4000, which is the mortgage amount under Ex. A. 1 Rs. 2038 had been accounted for and the balance of Rs. 1962 represents the amount of principal and interest due on another promissory note executed by Subbaraya Reddi in favour of Munuswami Reddi dated 31-10-1922.
3. The plaintiff obtained an assignment of this mortgage Ex. A. 1 on 15-4-1942, Ex. A. 2, and the suit is on that assignment and the mortgage Ex. A. 1. The defence on behalf of the minors was that their interests in the properties which are joint family and ancestral properties, are not bound by the mortgage and so far as their share-is concerned no decree can be passed as the alienation is not binding on them. The lower court agreed with the contentions on behalf of the minors and passed a decree only against an undivided half of the suit properties, i.e., to the extent of the share Subbaraya was possessed of on the date of the alienation. The right of the minors to question the alienation is stated not to have been disputed seriously in the lower court. But Mr. M. S. Venkatarama Aiyar, learned counsel for the appellant, raised the question and urged that the right to dispute the alienation on behalf of the minor defendants depended on the right of the eldest son Dasu Reddi to attack the alienation, but since Dasu Reddi is stated to have impliedly consented to the mortgage, it is not open to the minors to raise the question once again. I am unable to find in the evidence as to any consent, expressed or implied, given by Dasu Reddi to the transaction of the mortgage, and as such it may be taken that there was no consent on the part of any of the sons to this alienation.
4. The position of minor defendants 1 and 2 is different from the position of Dasu Reddi as defendants 1 and 2 were born subsequent to the alienation, while Dasu Reddi was alive even on the date of the alienation. Dasu Reddi was not a. party to the mortgage and in 1940 he separated: himself from the family and ceased to have any interest in the family properties and thereafter the joint family consisted alone of Subbaraya and the sons who were born subsequently in these circumstances where an alienation is made by a father before the birth of the sons whether it will be open to the after-born sons to question the alienation, is the matter, that requires to be considered in this case.
5. The right of the sons to the property which they acquire as coparceners by birth cannot be disputed; but they not having been born on the date of the alienation, are they precluded from questioning the binding nature of the alienation made by the father before their birth? The decision of the Privy Council in 'Lal Bahadur v. Ambika Prasad is understood' to have laid down that the right to challenge alienations of family property is confined to the coparceners born and alive on the date of the alienation and that such a right to a coparcener who was born subsequent to the alienation is denied even though on his birth he acquires a share in the family property. Mayne, 11th Edn. on Hindu Law observed at page 502 with reference to this decision, that the point was not considered and it may not be the question.
'It would be against the whole current of Indian authorities which were neither referred to nor considered and cannot therefore be deemed to be overruled. If, however, the observation means that coparceners born in the family subsequent to an alienation before the death of the other coparceners who could challenge it have no right to the property and consequently no right to challenge the alienation, it would conflict with what was said by the Board in 'Ramkishore v. Jalnarayan', 40 Ind App 213 (B) as well as with the cardinal principle of Hindu law. The coparcenary which is interested in the property, not validly alienated, is continually enlarged by births as it is diminished by deaths. Where A makes an invalid alienation of the family property, his son B is entitled to object to it, not because he is in existence but as he is equally interested in it. The property is not effectively carried away from the family except to the extent of the father's share in the provinces in which he could alienate.'
So far as Madras is concerned, it would be open to a father to alienate his share in the property; but the right of the son to question the alienation would depend (not?) on the circumstance whether he was born or not on the date of alienation, but whether lie has acquired an interest, by reason of his birth, in the property. This is made clear by the observations of the commentator at page 502, that the right to challenge is only by reason of the interest in the family property and it is a right in every member of the coparcenary for the time being. As long as that right exists in the coparcenary, it would seem immaterial whether the son was alive at the date of the alienation or born subsequently. It is pointed out by Mayne that the question must be deemed to have been decided, as it appears to be by reason of the latest decision of the Privy Council in 'Panchaiti Akhara Udasi Nirwani v. Surajpal Singh 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 his property comes into existence or is conceived after the alienation, but during the life of a child born or conceived before the alienation, then that overlapping of the two lives enables the later born child to contest the validity of the father's act.'
In this case, there is the overlapping of the two lives, the lives of defendants 1 and 2 with the life of Basu Reddi as he was born on the date of alienation and he is still alive. in 'Rajah Vasi Reddi v. Lakshmi Narasimham', AIR 1940 Mad 691 (D), a Bench of this court, though it did not expressly decide the question that arises for determination in this case, however, was Inclined to the view taken by the commentator of Mayne's Hindu law, and this is evident from the observations of Venkataramana Rao J. at page 694 where the learned Judge says as follows: (while referring to a decision of a Bench of this Court in 'Visweswara Rao v. Surya Rao', AIR 1935 Mad 440 (E) ) :
'They express an opinion that if before the after born son is born, the sons in existence were to die, the right is lost to the afterborn son though the right to set aside an alienation may be within the time from the date when the cause of action accrued to the sons in existence. This seems to be in conflict with the .view expressed in Mayne's book at page 513, where it is stated that it is a right in every member of the coparcenary for the time being and as long as that Tight in the coparcenary exists it would be immaterial whether he was alive on the date of the alienation or born subsequently. Much may be said in favour of either view and it may be that that view expressed in Mayne's book is sounder. The scope of the Privy Council decision in may require reconsideration.'
6. The other question which may have to be considered in examining the rights of afterborn sons to question the alienation made by their father before their birth is whether the failure on the part of the elder son within the period of limitation would be a bar to the right of the subsequent born sons. Mayne in his book deals with this question at page 497:
'Where a suit to set aside a father's alienation by sons who were in existence at the date of alienation is barred, it is equally barred as to sons who were born subsequent to the alienation for they do not acquire a fresh cause of action.'
This is based on the decisions referred to at the footnote, mainly, the Privy Council decision in 'Ranodip Singh v. Parmeshwar . The commentator proceeds to state as follows:
'Conflicting views have been expressed on the question whether when a suit to set aside an alienation by an elder son is barred, a suit by a younger son is also barred under Section 6 and 7 of the Limitation Act. in 'Jawahir Singh v. Udai Parkash', 53 IA 36 (G), the Privy Council held that though a suit to set aside an alienation by the elder of the two sons would be barred on the ground that he had attained majority more than three years of his majority to recover possession of the property would not be barred.....Whore a son brings a suit to set aside an alienation of ancestral property within the meaning of Article 126 of the Limitation Act, ho brings it in his character as son and not in his character as managing member. The right of the manager to represent the coparcenary as a whole cannot extend to his representing the rights of individual coparceners to challenge alienations made by one or more members of the coparcenary. Where several coparceners are entitled to set aside an alienation, the view that if the managing member is barred from bringing the suit, the other coparceners are also barred is open to doubt.'
7. If therefore the eldest member or the managing member has not filed a suit to set aside an alienation within the period of limitation provided by the law, the right of the other members of the coparcenary to challenge the alienations is not taken away. As pointed out by the learned commentator, the right to question the alienatior arises in an individual member of the coparcenary not by virtue of his being a managing member but in his character as son and that individual right cannot be controlled by anything which the eldest or the managing member has done or has failed to do. It appears to me that the correct and reasonable view to be taken in such cases consistent with the principles of Hindu law is that each son has an independent right to question the alienations irrespective of the fact or otherwise of the eldest or managing member having failed to ask the alienation to be set aside within three years on his attaining majority in the present case, however, that question would not arise for the reason that Dasu Reddi had separated himself from the family and had ceased to be a member of the family, the only two surviving members of the Joint family being defendants l and 2. The fact or otherwise of Dasu Reddi having taken no steps for setting aside the alienation is immaterial of the right of defendants 1 and 2 to question the suit mortgage in that view I agree with the lower court that defendants 1 and 2 are entitled to dispute the alienations.
8. But still the question remains to be considered whether the lower court's finding that the mortgage, Ex. A. 1 is not binding on the minor defendants as neither being for necessity or benefit Is correct. The learned Judge observed that the property being ancestral property the alienation of ancestral property for purpose of new property is prima facie not a necessity. If it is a matter of benefit, it is to be alleged and proved & in this case there Is no evidence let in to show that the joint family was benefited by the reconveyance, and in his opinion special facts must be alleged and proved to show that the alienation was one for necessity or was beneficial to the minors.
9. It will be necessary to analyse what is the effect of this mortgage, whether it can be said to have been necessary, supported by legal necessity or whether it could be said to be beneficial or whether in any event the defendants have not suffered by such alienation. The entire property of the family was mortgaged to Munuswami Reddi in 1920. When the principal debt under the mortgages was Rs. 4250 in 1921, Subbaraya apparently considered it beneficial in view of the debt not having been discharged, to dispose of a portion of his property, and with that view he sold 7 acres 52 cents for Rs. 2800 out of which Rs. 2125 was paid towards earlier mortgages. What he did subsequently was to repurchase 6 acres 34 cents out of the 7 acres 52 cents for a sum of Rs. 3000 under which he got the properly which was sold away except one acre and odd, and discharged the entire debt due by him on a promissory note to the extent of Rs. 800. By the mortgage Ex. A. 1 he created a liability of Rs. 4000 out of which Rs. 1962 represents the amount due on a promissory note of 1922 executed by the father which however is not alleged to be not binding on the minors since it cannot be so alleged as it appears to be an antecedent debt the balance of Rs. 2038 alone being a liability incurred afresh. This transaction of mortgage may be viewed in two ways. The family lost 7 acres 58 cents by sale in 1921 but gained to the extent of Rs. 2125, being the part payment towards the earlier mortgages, and by the purchase Ex. A. 7 the family gained 6 acres 34 cents, practically taking back the property sold by them, with a liability of Rs. 2038. What was originally a liability to the extent of Rs. 2125, which was discharged, was practically created by the simple mortgage to the extent of Rs. 2038; there has been no increase of burden on the family. Properties as originally held were retained, the debt continuing.
It may also be considered in this manner: By reason of the simple mortgage and the sale, Exs. A. 1 and A. 7, the family got 6 acres 34 cents with a liability of Rs. 4000 and out of this Rs. 4000 the minors were liable to pay the two promissory notes debts Of Rs. 1962 and Rs. 880 amounting to Rs. 2842 and out of the sum of Rs. 4000 only a sum of Rs. 1158 Is a new liability created under the mortgage for which the recompense is a property of 6 acres 34 cents. I am unable to see how it could be said to be a transaction by which the minors have suffered. It might be that Subbaraya considered the securing back of the family properties was for the benefit of the family not only getting back the family properties but consolidating the debts then due and making the entire property liable under a mortgage which he executed, Ex. A. 1. I am unable to agree with the learned Judge in his conclusions. This is not one of the transactions which could be put on the same category as sales of properties by managers or fathers for the purpose of purchasing other properties which are generally not cognized by courts, inasmuch as a father is not allowed to speculate by sale and purchase of joint family properties. This does not come within that category. It is a transaction which the father felt was and appears also to be one necessary in the interests of the family, to secure back to the family properties which had been lost and to consolidate the family liabilities by the execution of a fresh mortgage on the entire properties in that view the mortgage Ex. A. 1 is binding on the minor defendants.
10. The appeal is allowed and a decree for the amount claimed will be passed. Tune for redemption 3 months. Appellant's cost is fixed at Rs. 300 including Court-fees.