The right to challenge an alienation is not a purely personal right, but a right which the son exercises on behalf of the family and for the benefit of the family.

1. The facts giving rise to this Pull Bench are very few. Ganpati, who is the father of the plaintiffs, made an alienation of joint family property in 1936. At that time the joint family consisted of Ganpati and his son Maruti who was at that time a minor. Maruti left the joint family in 1942 as he was given away in adoption, but before the adoption took place the plaintiffs were born to Ganpati. The plaintiffs filed the suit to challenge this alienation and the trial Court held that the alienation was not supported by necessity. The trial Court also held that the plaintiffs were entitled to challenge the alienation and passed a decree in favour of the plaintiffs. In appeal the lower appellate Court concurred with the finding of the trial Court with regard to the necessity for the alienation, but on the question of the right of the plaintiffs it came to a contrary conclusion and dismissed the plaintiffs suit.

The matter then came in second appeal before Mr. Justice Gajendragadkar and Mr. Justice Vyas and they raised the two following questions and referred them to the Pull Bench, and the two questions are :

(1) Whether, under Hindu law, a son who is neither born nor adopted at the time of the alienation made by the father is entitled to challenge the validity of the said alienation? and

(2) If not, does he acquire the said right if at the time when he was born there is in existence another son who could have challenged the said alienation and who has not lost the said right?

A large number of authorities have been referred to us at the bar, but before we deal with them it is necessary, in our opinion, to enunciate certain principles, and having enunciated these principles, we will consider the authorities to see whether these authorities support these principles or are in any way inconsistent with them.

2. The first principle is that a person born in a coparcenary is entitled to the property which is in existence at the time when he enters the coparcenary. As it has been said, he must take the joint family property as he finds it. The second principle is that if a father alienates property and that alienation is not supported by necessity, then the alienation is not void but voidable. The question that we have to consider is, first, whether a son born after the alienation is entitled to challenge the alienation made by his father; in the second place, if he has such a right, whether that right is unlimited; and in the third place, whether there are any limitations upon that right and if so, what limitations.

It follows as a consequence from the proposition we have just stated that an alienation is not void but voidable, that an after born son has no right in the alienated property. Till the alienation is successfully challenged, the alienation is good, and therefore when the after born son enters the coparcenary, he cannot claim to take any interest in the alienated property. It is also clear that if at the date of the alienation there is a son in existence, unless he consents to the alienation, the alienation would not be binding upon him, and therefore he can challenge that alienation. It is also well settled that the alienation can be challenged within 12 years from the date of the alienation. After 12 years the right to challenge would be barred. Therefore, there is no dispute as to the right of a son who was in existence at the date of the alienation and who has not consented to that alienation to challenge the alienation.

The difficulty arises with regard to an after-born son who was not in existence at the date of the alienation. It may be suggested that as he had no right in the alienated property he would have no right to challenge the alienation. On the other hand, the right to challenge the alienation accrues to the son who was in existence at the date of the alienation, and the real question that we have to consider in this Pull Bench is whether the fact that the after-born son was in existence during the time