The share of the alienee in an alienation of joint family property by a father is determined at the date of alienation and not at partition.

Chagla C.J.

1. In the suit from which this appeal arises, an alienation made by defendant 6, who is the father of plaintiffs 1, 2 and 3 and the husband of plaintiff 4, was challenged. The alienation was a mortgage dated 6-6-1932, and the alienation was in favour of defendants 1 to 5. The trial Court upheld the challenge and declared that the mortgage was not binding upon the plaintiffs share which he assessed at four-fifths.

2. In this appeal Mr. Merchant on behalf of the alienees has first contended that there is no evidence which would justify a finding that the property alienated was joint family property. The plaintiffs came to Court on the allegation in their plaint that the property was joint family property and that allegation was met by defendants 1 to 5 by the assertion that the property was alienated by defendant 6 for legal necessity. Defendants 1 to 5 in their written statement did not controvert the allegation of the plaintiffs that the property was joint family property. In view of that state of the pleadings, in our opinion, it was unnecessary for the plaintiffs to prove at the trial that the property was joint family property. That allegation must be deemed to have been admitted and on that admission the Court was entitled to proceed on the basis that the property it was considering was joint family property.

3. On the merits of the allegation very little can be said. The mortgage deed recites that the sum of Rs. 7000 was borrowed by defendant 6, on the mortgage of the property because he had taken over the havala of Rs. 7000 due from the shop of one Dhondu to the mortgagee. Dhondu has given evidence in the case and he has pointed out that defendant 6 did not receive any benefit whatsoever either to himself or to the family by taking over this havala. He says that the shop could not pay the sum of Rs. 7000 to the mortgagee, and thereupon defendant 6, like a good Samaritan stepped in and took over the havala and passed a mortgage in favour of the mortgagee. This alienation, therefore, cannot be justified either by legal necessity or benefit to the joint family property.

4. The third point urged by Mr. Merchant is that the suit is barred by limitation. Mr. Merchants contention is that the suit falls under Article 120. In this case the plaintiffs are not merely asking for a declaration, but are also asking for possession. But even assuming that the suit fell under Article 120, the cause of action would only accrue when there was an invasion of the plaintiffs right or unequivocal threat to their rights. The learned trial Judge has rightly pointed out that the mortgage was a simple mortgage, that the mortgagee never went into possession, and that a danger to the interest of the plaintiffs only arose when defendants 1 to 5, sued to enforce the mortgage. It is from that date that limitation began to run, and if that is the correct starting point of limitation, then the suit is clearly in time.

5. The final contention urged by Mr. Merchant is that the trial Court was in error in deciding that the only share of the property which defendant 6 was entitled to alienate was one-fifth and that the four-fifths share was protected. This contention raises a very interesting question. There arc two clear views on this question and I will briefly state these two views. The one view for which Mr. Merchant contends is that in order to determine the alienees share the material date is the date of alienation, and in order to determine that share you have to consider what would be the fathers share if there had been a partition on that date. In this case plaintiffs l and 2 were in existence at the date of the alienation. Plaintiff 3 was subsequently born. Therefore, if a partition had taken place at the date of the alienation, the two sons would have one-fourth share each, the wife would have one-fourth share, and the father would have one-fourth share. The father would not be entitled to alienate the share of his two sons who wer