1. This appeal arises out of a suit on a mortgage for Rs. 6,000 executed on 15th July 1924 by Gunwantrao, defendant 1, on behalf of himself and his. minor sons, defendants 3 to 7. Defendant 2, who is the eldest son of defendant 1, had attained majority at the time of the mortgage but did not join in the execution. Defendants 8 and 9 are sons born to defendant 1 after the execution of the mortgage. These defendants form a joint Hindu family and the property mortgaged was joint family property. The. lower Court held that the subsequently born sons were entitled to challenge the. validity of the mortgage, that the mortgage was not supported by legal necessity and was therefore not binding.on the shares of defendants 2 to 9, and that the plaintiff was therefore entitled to a decree against the share of defendant L alone. The learned Additional District-Judge however pointed out that, if the-sale proceeds of the share of defendant 1 in the mortgaged property were found, insufficient to satisfy the plaintiff's claim,, the plaintiff would be at liberty to apply for a personal decree against the father and to execute that decree against the property of the sons who would be under a pious obligation to pay their father's-debts. Against that decree the plaintiff has appealed.

The next question is whether the sons who were born after the execution of the mortgage are entitled to challenge its-validity. It appears to us that they are. The proposition is stated as follows in para. 342 of Mayne's Hindulaw at p. 468'' Edn. 9:

If the alienation was made by a father without necessity, and without the consent of 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 property as it then stands. If a previous alienation of any portion of the family property 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 cat 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 not diminish the corpus of the joint family property.

Similarly it is stated in Mulla's Hindu Law at p. 320, Edn. 7 :

An alienation made by a father who has sons then living, the alienation not being one for legal necessity or for payment of an antecedent debt, is invalid if made without their consent. 'Such an alienation may be set aside not only at the instance of those sons, but at the instance of any son born after the date of alienation, unless it was ratified by them before his birth.

A similar view has been taken in Trevelyan's Hindu Law at p. 331, Edn. 3 and in Sarkar's Hindu Law at p. 412, Edn. 7. This was the view taken by the Calcutta High Court in 11 WE 480 Hurodoot v. Beer Narain,1869 11 WR 480 and by the Allahabad High Court in 44 All 190 Bhup Kunwar v. Balbir Sahai, 1922 AIR(All) 342. On the strength of these authorities the point was conceded in 2 Lah 114 Dwarka Das v. Krishan Kishore,1921 AIR(Lah) 34. The case law was discussed at considerable length by Baker, J. C, in 1924 Nag 200 Mansingh v. Karan Singh,1924 AIR(Nag) 200 and he adopted this view, which had previously been expressed by Ismay, J.C., in 12 C.P.L.E. 63 Sobharam V. Makdu,1899 12 CPLR 63. This decision was followed by Findlay, J.C., in 1926 Nag 360 Gunaji v. Ramchandra, 1926 AIR(Nag) 360. A contrary view was taken by Bose, A.J.C 1934 Nag 108. He made no reference to the decisions in 1924 Nag 200 and 1926 Nag