The validity of alienation by the father of a Hindu family as the guardian of his minor sons, the necessity for alienation, and the rights of an after-born son in the family property.

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 plaintiffs 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 plaintiffs 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 mothers 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 plaintiffs 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 plaintiffs 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 Paramans 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