Thiruvenkata Achariar, J.
1. The plaintiff in the suit has preferred this second appeal. He brought the suit for partition of certain immoveable properties in which he claimed two-thirds share. Both the lower Courts have held that he is entitled only to one-third share and have given him a decree for partition to the extent of that share. The plaintiff has preferred this second appeal in respect of the one-third share disallowed. The material facts of the case as found by both the Courts are as follows:
2. The suit properties in which the plaint-tiff claims two thirds share belonged to an undivided Hindu family consisting of one Mari Amabalagaran and his two sons. Kuppuswami, the elder son (by his first wife) was a major. Paraman the other son (by his second wife) was a minor. The plaintiff's claim is based on a sale-deed, Ex. A dated the 3th May, 1914, purporting to be executed in his favour by Mari Ambalagaran and Kuppuswami, the former executing the sale deed not only on his own behalf, but also on behalf of his minor son Paraman. Kuppuswami, however, repudiated the sale-deed and it was not registered so far as he was concerned and the plaintiff's suit to enforce registration of the document against Kuppuswami failed. The sale-deed, therefore, operated only as a conveyance to the plaintiff by the father Mari Ambalagaran on his own behalf and on behalf of his minor son Paraman. Within a few days from the sale-deed, Ex. A. Kuppuswami purported to sell to the 1st defendant a portion of the lands comprised in Ex. A and gave him also possession of that land. The plaintiff, however, did not get possession of any portion of the lands conveyed to him under Ex. A. Sometime after the sale-deed to the plaintiff, another son named Krishnan, the 6th defendant in the suit, was born to Mari Ambalagaran by his second wife Thailammal, who has been impleaded as the 5th defendant. Both Mari Ambalagaran and Paraman died before the institution of the present suit. Paraman died in 1921 while still a minor. It does not appear when Mari Ambalagaran died. On behalf of the minor son, the 6th defendant, the following pleas were raised viz:
1. That at the date of the sale-deed he had also an interest in the suit property, as he was then in his mother's womb.
2. That the sale-deed Ex. A was not binding on his brother Paraman or him self and cannot affect their rights in the property as it was not made for any justifying necessity or purpose, and
3. That there was no partition between Kuppuswami and the other members of the family as pleaded by the 1st defendant.
3. The Courts below have held against on the first plea and have found that he' was not in existence at the date of the sale as alleged on his behalf; but his other two pleas have been upheld. Both the Courts have found that the sale by Mari Ambalagaran was not made under circumstances which would render it binding on his minor son Paraman whose interests also he purported to convey. They have also found against the alleged partition between Kuppuswami and Mari Ambalagaran. Upon those findings the plaintiff has been awarded a decree for one-third share only in the plaint properties, being the share of Mari Ambalagaran, which alone upon the findings had validly passed by the sale-deed to the plaintiff. It is contended on plaintiff's behalf that even upon the said findings the Courts should have awarded the plaintiff two-thirds share as claimed by him. I should have thought that it was too plain a case for such a contention to be put forward successfully, but the plaintiff's Vakil strenuously argued in support of it. His contention so far as I have been able to follow him is this. The sale to the plaintiff by the father and guardian, Mari Ambalagaran, was so far as the minor son Paraman was concerned voidable and not void. It was prima facie effectual to convey Paraman's interest also in the property and unless and until he avoided the sale so far as he was concerned, the plaintiff will be entitled to his (Paraman's) interest also in virtue of the sale-deed by his father and guardian Mari Ambalagaran. It was further contended that the right of Paraman to avoid the sale so far as his interests in the property were purported to be affected by the sale was one personal to him and was, therefore, enforceable by him alone and as he died without avoiding the sale, it is no longer open to any other person to avoid the sale of his share to the plaintiff. As regards Krishnan, the after born son, it is contended that he acquired no interest in the property by birth and cannot, therefore, impeach the alienation made by his father; nor can he have any right to question the alienation even to the extent of Paraman's share as the personal right of Paraman already referred to ceased with Paraman's death. In support of the contention that the sale was prima facie good to the extant of Paraman's share also until avoided, the appellant's Vakil relied on the following passage in the judgment of Kumaraswami Sastri and Davadoss, JJ, in Subba Goundan v. Krishnamachari : AIR1922Mad112 :
The alienation by the father to the extent of his share will be good. In the case of sales by a father or managing member of the joint family for alleged necessity, we think the sale will be good till avoided, as it is open to the other coparceners to affirm the transaction. The position of such a purchaser cannot be worse than that of a purchaser from a widow without legal necessity, in whose case it has been held that the sale is good till repudiated by the reversioners. We respectfully dissent from the view taken by Kriahnaswami Aiyar, J; in Kandasami Asari v. Somaskanta Ria Nidhi : (1910)20MLJ371 that a sale without necessity is incapable of ratification by the other coparceners.' The appellant's Vakil also relies upon the following observation of Odgers, J., in Alagar Iyengar v. Srinivasa Iyengar : AIR1925Mad1248 :
These alienations were made by the father of the plaintiff not only as the manager of a joint Hindu family but also as their guardian. In my opinion, therefore, the minora appear as parties to these alienations which are prima facie binding on them. The power of a Hindu father may be more or may be less than the power of a guardian to bind his minor sons, but unless it can be established that the alienations were for unnecessary or illegal purposes (for which the onus is on the minors) the alienations are prima facie good. See Subba Goundan v. Krishnamachari : AIR1922Mad112 .
4. It will be seen that Odgers, J., in the later case has understood the dictum of the learned Judges in Subba Goundan v. Krishnamachari : AIR1922Mad112 quoted above as meaning that the sale by the father of a Hindu family as the guardian of his minor sons is not a nod but is only a voidable transaction and that it is prima facie blinding on them and if want to avoid it, they have to establish that it has been made for unnecessary or illegal purpose. I respectfully think that the dictum in Subba Goundan v. Krishnamachari : AIR1922Mad112 has not the meaning attributed to it by Odgers, J. think what the learned Judges in that case meant to say is that if the other co-parceners do not seek to set aside the transaction, it may be practically treated as good. If the manager in effecting the sale acted with in his powers, the sale will be good apart from the assent or dissent of the other co-parceners whose interests also he purports to convey. Otherwise it cannot per se binding on the other coparceners But even a sale made by the father or manager without necessity may be assented to by the other co-parceners and if they do so it will bind their interests also. The further question as to on whom the onus will lie if the other co-parceners contest the sale whether as plaintiffs or as defendants is left untouched in Subla Goundan v Krishnamachari : AIR1922Mad112 . On that question It has been settled beyond all controversy since Hunoomanpersaud Pandau v Babooee Munraj Koonweree 6 M.I.A 393 : 18 L.W. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 that whatever may be the form of the suit w whether the contesting co-parceners are plaintiff or defendants, the onus lies not on them but on the purchaser from he manager to prove that the sale was made for any real necessity or for a reasonably accredited necessity. As Mr. Mayne puts it:
Those who deal with a person who has only a limited interest in property an] who professess to dispose of a larger interest, are prima facie bound to make out the facts which authorize such disposition.' See Mayne's Hindu Law, Page 481, IX Edition).
5. The only difference between the powers of a Hindu father as manager IE family and that of other managers, is that the father can sell the property also for an antecedent debt of his which is neither illegal nor immoral. The sale will be valid if it was made to discharge an antecedent debt contracted by the father and to the extent necessary to discharge that debt. The onus has on the purchaser to prove that it was to discharge anantecedent debt of the father that the sale to him was made or that he, after using reasonable care to aseertain the existence of such circumstances that would justify the sale, has acted in good faith. If the sale is proved to have bean made for discharging the father's antecedent debts, then only the onus is shifted to the sons to establish affirmatively, that the said debts were illegal or immoral and that the purchaser had also notice that they were of such a character. These propositions are so firmly established by a long course of decisions that I can hardly think that the learned Judges in Subba Goundan v. Krishnamaahari : AIR1922Mad112 can have meant to throw any doubt upon them. The observation of Odgers, J., to which I have referred above seems, therefore, to be not only not warranted by the dictum in Subba Goundan v. Krishnamaahari : AIR1922Mad112 but also to be in conflict with the well-established rules as to the onus in such cases. As regards the alienations made by Hindu widows which are the held to be only voidable and not void transactions so far as the reversioners are concerned, the rule seems to be equally well established that the onus of proving the circumstances justifying the sale as against the reversioners lies not on them if they seek to impeach it bat on the alienees. It is, therefore, apparent that the term 'voidable' as used with reference to alienations of property by the managers of Hindu joint families or by female owners possessing only a limited interest therein, is not used in the sense in which it is used in the Indian Contract Act, as meaning that the transaction is binding on the other co-parceners or on the reversioners until it is set aside by them and that the person who seeks to set it aside has to establish that the transaction was vitiated by fraud, undue influence, misrepresentation or any other circumstances which would entitle a party to a contract to avoid it. It is the unfortunate use, if I may say so, of the term 'voidable' with reference to these transactions which has tended to create some confusion as regards the exact effect of alienations made without necessity; and I would respectfully adopt as a correct proposition the observation of Benson and Krishna-swami Ayyar, JJ., in Kandsami Asar v. Somaskanta Ela Nidhi : (1910)20MLJ371 :
It has invariably been accepted as a sound canon of the Hindu Law that where the alienation is not for justificabls necessity, it is void as regards the shares of the other members of the family and where such necessity exists it is valid in its entirety. It has never been suggested that the alienation by the manager is only voidable where it is not for justifiable necessity.
6. If I understand aright it is not this proposition in Kandasami Asari v. Somaskanta Ela Nidhi : (1910)20MLJ371 that the learned Judges in Subba Goundan v. Krishnamachari : AIR1922Mad112 dissent from but a different proposition, viz., that a sale without necessity is incapable of ratification by the other coparceners. On that question it may be observed that though such an alienation is void at the outset, it is still open to the other coparceners to validate it by their ratification if they are competent to do so. That question, however, does not arise in this case as there has been no ratification of the sale either by or on behalf of Paraman who died while still a minor or on behalf of the 6th defendant who is also a minor. So far as the necessity for the sale is concerned, it has been found that the case set up by the plaintiff, viz., that it was made to discharge the father's antecedent debts is not proved. It follows, therefore, that the sale was not effectual to convey Paraman's one-third share in the property. The assent of a coparcener which validates an invalid alienation necessarily assumes that the coparcener whose interest has been conveyed without authority, is competent to assent to such an alienation. It would be contrary to all principles to hold that a minor co-parcener can assent to an invalid transaction affecting his interest until he attains the age. The sale in this case to the plaintiff, therefore, stood unaffirmed by Paraman at the date of his death and the property conveyed was also in the possession of the family itself except the portion which the 1st defendant got through Kuppuswami. If Paraman were alive and was a party to the suit, the plaintiff cannot succeed against him unless he establishes real or reasonably accredited necessity for the sale and upon the findings in this case on that question, the plaintiffs suit except as regards the father's one-third share will have to be dismissed. The appellant's Vakil has however put forward a novel contention based on what I conceive to be the misunderstood dictum as to the sale being voidable by the other co-parceners, that the right to avoid is a personal right which Paraman had and which he alone can exercise and that on his death that power ceased and cannot be exercised by his heirs or successors to his property. This contention can be dismissed in a few words. In the first place there was no necessity for Paraman or the 6th defendant to bring any action at all against the plaintiff, as notwithstanding the sale-deed Ex. A in his favour, the property still continued to remain in the possession of the transferor and did not either before the date of Paraman's death or even subsequently pass into the possession of the plaintiff. It is only when possession is taken by the transferee under an alienation made by the manager of a Hindu family which is invalid as against the other coparceners that their rights to the property are really invaded and time begins to run against them for a suit to recover their shares in the property, but until and unless the transferee gets possession of the property alienated to him, no question can arise as to the acquiescence or otherwise of the other co-parceners whose rights have not been validly conveyed. Even if Paraman had been a major at the date of the alienation, it could not be said that he assented to or acquiesced in the alienation merely by his not bringing any action against the plaintiff for establishing that the alienation cannot affect his rights in the property or by his not manifesting by any other overt act that he does not acquiesce in the alienation so far as his interests in the property are concerned. How then such assent or acquiescence can be imputed to him while he is a minor it is impossible to understand. The contention is one which needs no serious consideration.
7. Secondly, any action which may be brought by the other co-pareeners will be one for the recovery of immoveable property if possession thereof had passed to the alienee or for a declaration of their title to it if possession had not passed; and nobody has ever heard the maxim 'Actio personalis moritur cum persona' being applied to such actions.
8. The only remaining point to be considered is whether the 6th defendant who was born after the alienation has any and if so what right in the plaint properties which would entitle him to contest the suit. Under the sale-deed, Ex. A, the plaintiff acquired only the one-third share of the father Mari Ambalargaran in the joint family properties. The remaining interest therein appertained to the joint family of the alienor; and it so remained at the date of the 6th defendant's birth with the result that he also acquired an interest in it by his birth. The authorities on this question are correctly and lucidly summarised in Mayne's Hindu Law thus:
9. A son cannot object to alienations validly made by his father before he was born or begotten because he could only by birth obtain an interest in property which was then existing in his ancestor. Hence if at the time of the alienation there had been no one in existence whose assent was necessary or if those who were then in existence had consented, he could not afterwards object on the ground that there was no necessity for the transaction.... On the other hand if the alienation was made by a father without necessity and without the consent of the 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. The reason of the thing is not of course that the unborn son has any right in the family property at the time of the alienation but that on his birth, he acquires a share in the family properties as it then stands. If a previous alienation of any portion of the family properties 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 not because the alienation was an invasion of his rights for he had none but because it was bad in itself and did net diminish the corpus of the joint family property.' (See Mayn's Hindu Law pages 468 and' 469, IX Edition.)
10. I have only to add that the decision of the Privy Council in Ranodip Singh v. Parmeshwar Pershad which was relied on by the appellant's Vakil is no authority for the contention that the after son acquires no interest by : birth in the family property which has net been validly alienated. It only lays down that where under such an alienation possession has passed to the alienee, the cause of action for a suit under Article 126 of the Limitation Act arises when possession is taken and there is no fresh starting point of limitation for the after-born son from the date of his birth.
11. The Courts below bare, therefore, rightly held that the 6th dafendant and Kuppusawmi (the major son of Mari Ambalagaran, were entitled to two-thirds share in the property and that the plaintiff cannot in virtue of the sale in his favour claim more than the one-third share of the father Mari Ambalagaran. The point mentioned in ground No. 9 is now raised for the first time and never before and cannot be entertained now.
12. The second appeal must, therefore, be dismissed.
13. I agree.