The share of the alienee in joint family property unauthorisedly alienated by the father is limited to the alienor's share and does not include the wife's inchoate share.

1. This Pull Bench has been constituted to decide the vexed question of the interest that an alienee takes in joint family property unauthorisedly alienated by the father, and the few facts which are necessary to state in order to decide that Question are that there was an alienation by the father, who is defendant 1, in favour of defendant 2, and the alienation was challenged by his son plaintiff 1 and by his step mother plaintiff 2 who was the second wife of defendant 1.

The suit that was filed by the two plaintiffs was for partition and they claimed in the suit two-thirds share in the properties alienated by defendant 1.

2. The question that we have to consider is, what is the share to which the plaintiffs are entitled in the property which was alienated by de. fendant 1? An earlier Pull Bench was constituted, the Judgment of which is reported in -- Sakarehand Satidas v. Narayan Savla, AIR 1951 Bom 10 (FB) (A), and there it was held that under Hindu law the share of the alienee of Joint family property is to be determined at the date of the alienation and not at the time when the alienee asks for an equitable partition of the property.

Two conflicting views were in the field at the time the decision of that Pull Bench was given. One was the view which was accepted and which has just been mentioned. The other was that the share of the alienee is a fluctuating share and is to be determined at the date when the challenge to the alienation is made and the Court must decide what the share of the alienor is at the date when the suit is filed.

The second view was rejected by the Pull Bench. The difficulty in this case arises by reason of the fact that at the date of the alienation defendant 1, the father, had a son alive and his wife was also alive, and the question that has been agitated at the Bar is whether the wife is entitled to any share which can be safeguarded on the alienation being challenged by the plaintiffs.

The view which has been put forward with great ability and with great vigour by Mr. Datar is that on the alienation being challenged by the plaintiffs the only interest in the joint family property which can be safeguarded which would not go to the alienee is the share of the son, that the mother has no share in the joint family property, and therefore her Interest was validly alienated by her husband.

3. Before we deal with the authorities it would be perhaps desirable to consider the contention put forward by Mr. Datar from different aspects. The basis underlying Mr. Datars contention is certain well accepted principles of Hindu Law. The first principle is that a Hindu wife has no Interest in the joint family property which she can enforce by a suit for partition.

The second principle, which follows really from the first, is that if there is an unauthorised alienation of joint family property, only a coparcener can challenge the alienation and the wife not being a coparcener has no right to challenge it.

As a consequence of these contentions it is urged by Mr. Datar that it is only the coparcener who challenges the alienation who can safeguard his interest in the Joint family property. The challenge being made by the coparcener who has not consented to the alienation avoids the alienation and to the extent of the avoidance his interest in the Joint family property cannot pass to the alienee.

But the wife not being in a position to challenge the alienation and not being in a position to avoid the alienation, she cannot claim that her Interest in the Joint family property such as it is has not passed by the alienation made by her husband. Although it may be true that a Hindu wife has no interest in Joint family property and she has no right to challenge the alienation, it is equally true that on a partition between her husband and her sons she is entitled to a share equal to that of her son.

It is the basic principle of Hindu law that a Hindu wife is protected and safeguarded on a partition taking place between he