A. N. SURTI, J. M. SHETH, J. ( 1 ) THIS appeal is directed against the judgment and decree passed by the learned Civil Judge (Senior Division) Navsari in Special Civil Suit No. 23 of 1968. By the aforesaid decree the learned Civil Judge (Senior Division) Navsari directed inter alia that the appellant plaintiffs suit for a declaration pertaining to sales in favour of respondents Nos. 5 and 6 be dismissed. He however declared that the mortgage in favour of the respondent No. 7 is not binding to the appellant plaintiff and respondent No. 2. The learned Civil Judge also held that the appellant plaintiff had half share in the family properties except those properties alienated in favour of respondents Nos. 5 and 6. He also directed that suitable arrangements to be made for the maintenance and marriage expenses of respondent No. 3. He appointed the commissioner to effect the partition and gave certain directions for taking accounts and for submitting his report. The operative portion of the judgment of the trial Court in this behalf is as follows:1 The suit of the plaintiff for a declaration pertaining to sales in favour of defendants Nos. 5 and 6 is dismissed. 2 The mortgage in favour of defendant No. 7 is hereby declared not binding to the share of plaintiff and defendant No. 2. 3 The plaintiff has 1/3rd share in the family properties except those alienated to defendants Nos. 5 and 6. 4 It is hereby ordered that the partition of the family properties shall be effected by Shri G. V. Patel Pleader who is appointed a Commissioner to effect the partition. The Commissioner shall propose what suitable arrangement should be made for the maintenance and marriage of defendant No. 3. In doing so he will take into consideration the observations in course of this judgment. 5 Defendant No. 1 shall submit before the Commissioner the accounts of income and expenses etc. pertaining to the joint family properties from 1952. The Commissioner shall submit his report pertaining to liabilities and assets etc. for consideration for the final decree. The Commissioner shall take possession of the properties and shall submit his proposal for interim arrangement for maintenance of plaintiff and defendants Nos. 1 2 and 3. 6 Plaintiff shall deposit Rs. 150 (Rs one hundered and fifty only) in the first instance towards expenses which the Commissioner may incur. for consideration for the final decree. The Commissioner shall take possession of the properties and shall submit his proposal for interim arrangement for maintenance of plaintiff and defendants Nos. 1 2 and 3. 6 Plaintiff shall deposit Rs. 150 (Rs one hundered and fifty only) in the first instance towards expenses which the Commissioner may incur. 7 Considering the facts and circumstances revealed parties shall bear their own costs be paid up by him. 8 A preliminary decree shall be drawn up accordingly. ( 2 ) IN the appeal before us the only grievance of the appellant plaintiff is that the learned trial Judge was in error in not granting the declaration pertaining to sales in favour of respondents Nos. 5 and 6 (original defendants Nos. 5 and 6 ). ( 3 ) NOW in order to understand the grievance of the appellant plaintiff a few facts relevant for the disposal of the appeal may be stated in brief. ( 4 ) THE suit was filed on behalf of the minor plaintiff by his maternal uncle Gajanand Vishwanath Junnarkar as next friend of the minor. In the suit the father the mother and the sisters of the plaintiff are impleaded as defendants Nos. 1 to 4 Defendants Nos. 5 6 and 7 are the alienees of the properties belonging to the Hindu Undivided Family (hereinafter referred to as H. U. F.) formed of the plaintiff and respondents Nos. 1 to 4. ( 5 ) IN substance it was the case of the plaintiff that his grandfather Vishnu Anna Shastri became the owner of properties mentioned in para 4 of the plaint by virtue of the partition deed dated 27th January 1887 between his grandfather Vishnu Anna Shastri and his brother Vasudev Anna Shastri. It was the case of the plaintiff that the said properties belonged to the H. U. F. It was also the case of the plaintiff that the properties mentioned at Items Nos. 2 and 3 in paragraph 4 of the plaint were transferred in favour of defendant No. 5 evidenced by a bogus document dated 17th October 1958 Ex. 57 by one Maganlal Hargovandas Soni. It was alleged that at the relevant time defendant No. 5 was knowing that the said Maganlal Hargovandas Soni had got executed by defendant No. 1 a bogus document in his favour on 7th April 1951 evidenced by Ex. 57 by one Maganlal Hargovandas Soni. It was alleged that at the relevant time defendant No. 5 was knowing that the said Maganlal Hargovandas Soni had got executed by defendant No. 1 a bogus document in his favour on 7th April 1951 evidenced by Ex. 64 and that the said transaction had taken place during the life time of defendant No. 1s father Vishnu Anna Shastri. The plaintiff attacked the said alienation of 1951 on the following grounds: (1) That defendant No. 1 had no authority in law to execute the said document dated 7th April 1951 in his capacity as the Karta of the H. U. F. as defendant No. 1s father was alive at the time of the said alienation; (2) That the said alienation was not for the benefit of the family and was not occasioned as a result of any legal necessity or for the benefit of the estate of the said H. U. F. ( 6 ) IN this view of the matter the plaintiff alleged that the alienation in favour of defendant No. 5 is also illegal as: (I) Defendant No. 5 was knowing about the interest of the plaintiff in the said alienated properties; (II) The transaction was illegal for want of consideration; (III) That defendant No. 5 was knowing that defendant No. 1 was incurring debts because of his gambling habits. WE may mention at this stage that the appellant plaintiff was already in his mothers womb on 5th September 1952 and was born on 8th March 1953 whereas the document dated 7th April 1951 evidenced by Ex. 54 was executed by defendant No. 1 when the father of defendant No. 1 was alive. We may also mention at this stage that defendant No. 1s father died in September 1952 at the age of 95 years. At this stage we may also mention the case of the plaintiff against defendant No. 6. He alleged that the document dated 6th November 1962 evidenced by Ex. 69 and executed by defendant No. 1 in favour of defendant No. 6 was illegal as the said transaction was effected without any legal necessity for the H. U. F. as the family was already having a monthly rental income of Rs. He alleged that the document dated 6th November 1962 evidenced by Ex. 69 and executed by defendant No. 1 in favour of defendant No. 6 was illegal as the said transaction was effected without any legal necessity for the H. U. F. as the family was already having a monthly rental income of Rs. 520 It was alleged that defendant No 6 was knowing that the property mentioned at Item No. 5 of paragraph 4 of the plaint alienated by the document Ex. 69 was the property of the H. U. F. It was alleged that it was not necessary to incur any debts for the educational expenses of the plaintiff or the marriage expenses of the members of the family. It was also alleged that defendant No. 6 was knowing that the plaintiff and defendant Nos. 2 to 4 were residing at Baroda and that defendant No. 1 indulged in gambling habits and that with a view to defeat the rights of the plaintiff defendant No. 6 in collusion with defendant No. 1 got executed bogus document Ex. 69 purporting to show that the consideration for the same is Rs. 8999. 00 whereas in fact the document Ex. 69 was executed without any consideration. It was alleged that the necessary sanction was also not obtained from the Court as the said transaction was affecting the rights of the plaintiff who was a minor at the relevant time. ( 7 ) IT is not necessary for us to set out the other details mentioned in the plaint for the disposal of the present appeal. ( 8 ) DEFENDANTS Nos. 1 to 4 in essence and substance supported the appellant plaintiff by their written statements Exs. 6 7 and 8. ( 9 ) DEFENDANT No. S resisted the suit by the written statement Ex. 13. In substance he contended: (1) that the suit should be dismissed as Maganlal Hargovandas Soni was not joined as a party to the suit; (2) that defendant No. 1 was managing the properties of H. U. F. during the life time of his father during the year 1951 as his father was old and invalid; (3) that a sum of Rs. 7995. 00 was paid to Maganlal Hargovandas Soni as the amount of consideration for the document Ex. 7995. 00 was paid to Maganlal Hargovandas Soni as the amount of consideration for the document Ex. 57; (4) that the suit was filed by the plaintiff in collusion with other defendants; (5) that the necessary alterations were made by him subsequent to the alienation in the properties alienated; (6) that taxes of the same were paid by him; (7) that he was using the property as a tenant prior to the execution of Ex. 57. ( 10 ) DEFENDANT No. 6 resisted the suit by written statement Ex. 15. He contended that the plaintiff had filed the suit in collusion with defendants Nos. 1 to 4 to defeat his rights He raised the contentions viz: (A) That the suit was barred by law of limitation; (B) That the suit is bad for joinder of parties and misjoinder of causes of action. (C) That the monthly income of rent from H. U. F. property was much less than Rs. 520. 00 and hence it was not possible to maintain the members of H. U. F. or to save any amount from the income of rent. He stated that in the year 1939 the rental income of H. U. F. was Rs. 80 per month whereas in the year 1947 the monthly rental income was Rs. 210. 00. He therefore contended that it was not possible to maintain the members of the said H. U. F. from the said income and hence for maintenance and the marriage expenses of the members of the H. U. F. it was necessary to incur debts. He stated because of the said legal necessity on 6-11-1962 the document Ex. 69 was executed by defendant No. 1 in his favour for the consideration of Rs. 8999. 00. In this view of the matter he submitted that the suit should be dismissed against him ( 11 ) THE learned Civil Judge after raising the necessary issues at Ex. 31 and recording the evidence passed the aforesaid decree partially accepting the case of the plaintiff and partially dismissing the plaintiffs case in regard to the alienations of H. U. F. properties in favour of defendants Nos. 5 and 6. It is under these circumstances that the present appeal is Sled by the plaintiff. ( 12 ) NO cross-objections are filed in this appeal. 5 and 6. It is under these circumstances that the present appeal is Sled by the plaintiff. ( 12 ) NO cross-objections are filed in this appeal. ( 13 ) THE learned trial Judge took the view that Maganlal Hargovandas Soni is a necessary party to the suit who alone is competent to say whether the alienation of the year 1951 was for legal necessity or what inquiry was made by him in that behalf about the existence of the same. Under the circumstances he took the view that as Maganlal Hargovandas Soni was not made a party to the suit he dismissed the suit against defendant No. 5. He also took the view that the accrual of the cause of action for filing the suit arose on the date of the alienation (Ex. 64) i. e. 7th April 1951 and as the suit was not filed within 12 years thereafter Ex. 64 cannot be challenged. However he took the view that the suit in so far it challenged the transaction in favour of defendant No. 5 by Maganlal is concerned is within the prescribed period of limitation. He took the view that unless Ex. 6a is set aside the purchase of properties by defendant No. 5 cannot be impeached. He also took the view that the suit against defendant No. 6 was filed within the period of limitation but the transaction evidenced by Ex. 69 dated 6th November 1962 was effected for the legal necessity and the benefit of the H. U. F. ( 14 ) IN course of the hearing of the appeal Mr. G. C. Patel the learned advocate appearing on behalf of the plaintiff has raised the following contentions. (1) That when defendant No. 1 executed the document dated 7th April 1951 evidenced by Ex. 64 in favour of Maganlal Hargovandas Soni defendant No. 1s father was alive and hence defendant No. 1 had no authority of law or otherwise and was legally incompetent to execute the document in regard to any H. U. F. property. In substance the contention was that at the relevant time the senior most member of the H. U. F. viz. defendant No. 1s father was senior most member of the H. U. F. and was Karta or the manager of H. U. F. and hence the impugned alienation evidenced by Ex. 64 is illegal void and of no consequence. In substance the contention was that at the relevant time the senior most member of the H. U. F. viz. defendant No. 1s father was senior most member of the H. U. F. and was Karta or the manager of H. U. F. and hence the impugned alienation evidenced by Ex. 64 is illegal void and of no consequence. (2) That assuming that defendant No. 1 was the manager of the said H. U. F. even then the said alienation evidenced by Ex. 64 was effected without any legal necessity for the H. U. F. or without any benefit to the estate of the H. U. F. or for the payments of antecedent debts of the H. U. F. and hence the said alienation is illegal and not binding to the plaintiff (3) That the plaintiff who was born on 8th March 1953 was in existence in his mothers womb on 5th September 1952 when the plaintiffs grandfather was alive. On that day the plaintiffs grandfather one of the co-parceners of the said H. U. F. had a right in law to challenge the said alienation dated 7th April 1951 evidenced by Ex. 64 and hence by reason of the doctrine of overlapping the plaintiff is having right to challenge the said alienation effected on 7 April 1951 (4) That the plaintiff could challenge the said alienation within a period of 12 years after the alienee took the possession of the property in question in the year 1954 and hence the period of limitation for challenging such an alienation would start from the date on which the alienee took the possession of the property. In this behalf it was urged that the suit was filed on 9th August 1968 and the same was filed in time as the plaintiff is entitled to get the benefit of sec. 6 of the new Limitation Act of 1963. (5) That no legal or valid consideration had been passed by Maganlal Hargovandas Soni in favour of defendant No. 1 for effecting the transaction on 7th April 1951 in respect of the property mentioned in Ex. 64 and hence. Ex. 64 is not a bonafide alienation. (6) That no legal or valid consideration had been passed by the defendant No. 5 in favour of Maganlal Hargovandas Soni for the impugned alienation on 17th October 1958 evidenced by Ex. 64 and hence. Ex. 64 is not a bonafide alienation. (6) That no legal or valid consideration had been passed by the defendant No. 5 in favour of Maganlal Hargovandas Soni for the impugned alienation on 17th October 1958 evidenced by Ex. 57 and hence the same is illegal void and of no consequence. (7) That in regard to the aforesaid alienation in the year 1951 the learned trial Judge erred in holding that as Maganlal Hargovandas Soni was the necessary party and the suit should not have been dismissed against defendant No. 5 on that Count. (8) That the alienation dated 6th November 1962 evidenced by Ex. 69 by defendant No. 1 in favour of defendant No. 6 was effected without any legal necessity and without receiving any consideration from defendant No. 6 and hence Ex 69 was illegal void and of no consequence. THESE were the only contentions raised by Mr. G. C. Patel in course of the hearing of the appeal and now we proceed to dispose of the same. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 15 ) HAVING regard to the aforesaid trustworthy evidence it is clearly established that when defendant No 1 executed the document dated 7th April 1951 evidences by Ex. 64 in favour of Maganlal Hargovandas Soni defendant No. 1 was managing the affairs of the H U. F. during the life time of his father who died in September 1952 ( 16 ) THAT brings us to the discussion on the second contention raised by Mr. Patel. In substance the submission was that the document Ex. 64 dated 7th April 1951 was executed by defendant No. 1 in favour of Maganlal Hargovandas Soni without any legal necessity for the H. U. F. or without any benefit to the estate of the H. U. F. or for making any payments in regard to the antecedent debts incurred by the H. U. F. ( 17 ) THE recitals in the document Ex. 64 dated 7th April 1951 may be mentioned here. It is clearly stated in Ex. 64 that a sum of Rs 6500/ was paid by Maganlal Hargovandas Soni to defendant No. 1 for the following particulars. (1) Rs. 3580. 64 dated 7th April 1951 may be mentioned here. It is clearly stated in Ex. 64 that a sum of Rs 6500/ was paid by Maganlal Hargovandas Soni to defendant No. 1 for the following particulars. (1) Rs. 3580. 00 for paying antecedent debt of Chhotalal Ranchhodji Desai (Ex. 58 ). (2) Rs. 1538-50 ps. for paying and discharging the antecedent debts of the father (of debt No. 1) and to pay and discharge the miscellaneous debts. (3) Rs. 1381-50 ps. for house-hold expenses. Rs. 6500-00 ps. Total. IT was also mentioned in the said document Ex. 64 that the possession of the alienated properties was handed over by defendant to Maganlal Hargovandas Soni. ( 18 ) NOW it is well settled that recitals of legal necessity in mortgages or deeds of sale executed by a father or the manager are admissible in evidence but are not of themselves evidence of such a necessity without substantiation by evidence aliunde. They may be corroborated by representations made by the borrower. But the recitals are the admissions of the manager and they also amount to representations about the need of the family or where owing to the length of time it is impossible to produce other evidence they have evidentiary value also. ( 19 ) OUR attention was also invited to the document dated October 17 1958 Ex. 57 executed by Maganlal Hargovandas Soni in favour of defendant No. 5. It is significant to note that defendant No. 1 has atte- sted Ex. 57. As stated in the document Ex. 57 defendant No. 5 purchased the right title and interest of Maganlal Hargovandas Soni in the concerned alienated properties as mentioned in Ex. 64. ( 20 ) THUS on a careful consideration of the aforesaid evidence which in our opinion is trustworthy we are convinced that the impugned alienation evidenced by Ex. 64 dated 7th April 1951 was effected on account of legal necessity of the H. U. F for the benefit of the estate of the H. U. F. and for payments of antecedent debts incurred for the family. In this view of the matter we do not see any substance or merit in the second contention raised by Mr. Patel. . ( 21 ) THE third contention of Mr. In this view of the matter we do not see any substance or merit in the second contention raised by Mr. Patel. . ( 21 ) THE third contention of Mr. Patel was that the plaintiff who was born on 8th March 1953 was in existence in the mothers womb on 5 September 1952 when the plaintiffs grandfather was alive. On that day i. e. on 5th September 1952 the plaintiff s grandfather one of the co-parceners of the H. U. F. had a right in law to challenge the impugned alienation evidenced by Ex. 64 dated 7th April 1951 and hence by reason of the doctrine of overlapping the plaintiff has a right to challenge the said alienation. ( 22 ) THE reported decision of the Full Bench in SHIVAJI GANPATI V. MURLIDHAR DAJI A. I. R. 1954 BOMBAY 386 explains the doctrine of overlapping. Chagla C. J. observed in para 6 as follows :it would be better to explain what has been called the doctrine of overlapping. As I have pointed out in order that an afterborn son should have a right to challenge an alienation he must be born at a time when there is some coparcener in existence in the joint family who has a right to challenge the alienation. There must be no gap between the existence of a coparcener who has a right to challenge and the birth of a son who enters the coparcenery subsequently. Therefore the two lives viz. the life of the son who has a right to challenge and the life of the subsequently born son must overlap and that is the doctrine of overlapping. Therefore the two lives viz. the life of the son who has a right to challenge and the life of the subsequently born son must overlap and that is the doctrine of overlapping. ( 23 ) IN the case of MAHADU UKARDA V. TULSABAI 59 BOMBAY LAW REPORTER 1117 Justice Mudholkar observed while referring the case in Shivaji Ganpati v. Murlidhar (supra) has observed as follows :in that case it was held that where a cause of action to challenge an alienation by the father has accrued to a son then existing a subsequently born son is also entitled to challenge that alienation as much as the earlier born son provided that the right of the earlier born son had not become barred prior to the birth of the subsequently born son by reason of the death or adoption of the earlier born son or by reason of the fact that the right of the earlier born son had before the birth of the subsequently born son become barred by limitation. It may however be pointed out that even according to the Full Bench the right to challenge an alienation constitutes one cause of action and that no fresh right accrues to the son subsequently born. It is also accepted by the Full Bench that limitation runs from the date of alienation and not from the date on which the son who could challenge the alienation is born. ( 24 ) IN this behalf we may also usefully refer to the reported decision of the RANODIP V. PARMESHWAR A. I. R. 1925 PRIVY COUNCIL 33 A few facts of that decision may be stated in brief. The suit out of which the appeal arose was instituted on 23rd June 1920 by the four sons of the sixth defendant Thakur Prithi Singh claiming possession of the village described in the plaint. The plaintiffs and their father were a Joint Hindu Family governed by the law of the Mitakshara and it was the plaintiffs case that the village was the ancestral property of the joint family. On 3 June 1893 the plaintiffs father purported to sell the village to Manjee Bam who was represented in this suit by his descendents defendants Nos. 1 to 5. The seventh defendant claimed as a mortgagee from defendants Nos. 1 2 and 5. On 3 June 1893 the plaintiffs father purported to sell the village to Manjee Bam who was represented in this suit by his descendents defendants Nos. 1 to 5. The seventh defendant claimed as a mortgagee from defendants Nos. 1 2 and 5. It was the contention of the plaintiffs that the sale was not binding on them as it was not made for legal necessity and on this ground they claimed a decree for possession. It was thought necessary to consider whether the suit was barred by limitation and for that purpose the dates at which the several plaintiffs were born became important. In that case plaintiff No. 1 was born on 23rd August 1886 plaintiff No. 2 on the 4th August 1891 plaintiff No. 3 on 1st October 1897 and plaintiff No. 4 on 30th November 1900 From the said facts it is clear that first and second plaintiffs were in existence at the date of the sale but the other two plaintiffs were born after its completion. The time from which the period of limitation began to run had throughout been treated as the 3 June 1893 on the assumption that the alienees then took possession of the property within the meaning of Article 126 contained in the First Schedule to the Indian Limitation Act 1908 ( 25 ) NOW the prescribed period of 12 years from this date expired in 1905 but the plaintiffs contended that limitation was saved by S. 7 of the Limitation Act read with secs. 6 and 8. Sir Lawrence Jenkins in course of the judgment observed as follows:it is conceded that the suit would not be saved by these sections if brought by the first three plaintiffs alone; but it is contended that the fourth plaintiff is entitled to the expended period for which the sections provide and that the suit is therefore not barred by limitation. Both the Courts in India have decided adversely to this contention. THE cause of action arose on the 3rd June 1893 and it is from that date that the period of limitation is to be reckoned. The fourth plaintiffs subsequent birth on the 30th November 1900 did not create a fresh cause of action or a new starting point found which limitation should be reckoned. THE cause of action arose on the 3rd June 1893 and it is from that date that the period of limitation is to be reckoned. The fourth plaintiffs subsequent birth on the 30th November 1900 did not create a fresh cause of action or a new starting point found which limitation should be reckoned. TO the contention that by the cited sections the period of limitation is extended for three years from th5 cessation of the fourth plaintiffs minority the answer is that by their express terms this extended period can only be claimed by a person entitled to institute the suit at the time from which the period of limitation is to be reckoned. The fourth plaintiff does not come within this description for at that time he was not in existence. He therefore is not entitled to the three years extension and his suit is consequently barred. ( 26 ) OUR attention was also invited to the reported decision in SESHAMMA V. VENKAYYA A. I. R. 1957 ANDHRA PRADESH 386 Viswanath Sastri J. in Para 3 of the judgment observed as follows:that an improper alienation of joint family property by a father or manager can be set aside at the instance of an afterborn coparcener provided there was in existence at the date of the alienation some coparcener who could challenge it and he had not consented to the alienation or ratified it before the afterborn son was begotton. ( 27 ) IN VENUGOPALASWAMY VARU TEMPLE V. VISWESWARA A. I. R. 1969 ANDHRA PRADESH 24 in paragraph 9 of the judgment it is observed as follows:that an afterborn son can under certain circumstances sue to set aside his fathers alienation of ancestral property is not disputed. The law seem to be now fairly settled that a son born in a joint Hindu family acquires by birth interest in ancestral property but does not acquire any interest in any right to sue. The cause of action accrues only on an alienation and only when the purchase takes possession under the alienation. See Art. 126 [ now Art. 109 of the (new) Limitation Act ]. It would be a mistake to think that a new cause of action occurs upon the subsequent birth of a son in the family. The cause of action accrues only on an alienation and only when the purchase takes possession under the alienation. See Art. 126 [ now Art. 109 of the (new) Limitation Act ]. It would be a mistake to think that a new cause of action occurs upon the subsequent birth of a son in the family. The afterborn son does not acquire a fresh cause of action and consequently a fresh period of limitation does not start from the date of his birth. In this case the time from which the period of limita- tion is to be reckoned is the date of the transfer and taking of possession under it by the purchaser. When he was not born on the day of the transfer he could not be said to be suffering from any disability on that date and eventually cannot take any advantage of Section 6 Limitation Act. It will thus be clear that a subsequently born son has the same cause of action which accrued to another coparcener apart from the father who made the alienation and who was living at the time of alienation. ( 28 ) IN GURAMMA V. MOLLAPPA A. I. R. 1964 SUPREME COURT 510 the Supreme Court observed as follows in paragraph 13 of the judgment:a coparcener whether he is natural born or adopted into the family acquires an interest by birth or adoption as the case may be in the ancestral property of the family. A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. An alienation can also be made by a managing member with the consent of all the coparceners of the family. The sole surviving member of a coparcenary has an absolute power to alienate the family property as at that time of alienation there is no other member who has joint interest in the family. An alienation can also be made by a managing member with the consent of all the coparceners of the family. The sole surviving member of a coparcenary has an absolute power to alienate the family property as at that time of alienation there is no other member who has joint interest in the family. If another member was in existence or in the womb of his mother at the time of the alienation the power of the manager was circumscribed as aforesaid and his alienation would be voidable at the instance of the existing member or the member who was in the womb but was subsequently born as the case may be unless it was made for purposes binding on the member of the family or the existing member consented to it or the subsequently born member ratified it after he attained majority. If another member was conceived in the family or included therein by adoption before such consent or ratification his right to avoid the alienation will not be affected. ( 29 ) OUR attention was also invited to Arts. 270 and 271 of Mullas Hindu Law 14 Edition. Art. 270 of Mullas Hindu Law provides inter alia as follows :an alienation may also be set aside at the instance of any coparcener who though born subsequent to the date of alienation was in his mothers womb at the date of alienation; the reason is that under the Hindu law a son conceived is in many respects equal to a son born. AN alienation of joint family property made by a father there being no male issue in existence at the date of the alienation is valid though made without legal necessity. Such an alienation cannot be objected to by a son born after the date of the alienation on the ground that it was made without legal necessity But an alienation made by a father who has sons then living not being one for legal necessity or for payment of an antecedent debt if made without their consent may be set aside by one of those sons-partially or wholly according to the state in which the question arises. ART. ART. 271 of Mullas Hindu Law provides inter alia as follows : the period of limitation for setting aside an alienation by a father of joint family property is twelve years from the date when the alienee takes possession of the property (Limitation Act 1908 Sch. 1 art. 126 ). If however the alienee has not taken possession the only right of the son will be to obtain a declaration that the deed of alienation is invalid and the limitation prescribed was six years under Article 120 of the old Limitation Act. A similar provision is incorporated in Article 109 of the New Limitation Act. THE cause of action in a suit to set aside the fathers alienation arises when the alienee takes possession of the property. The period of twelve years is therefore to be counted from that date. That is the material date not only as regards the suit of a son in existence at the date but also the suit of a son not in existence at that date. The extention of three years given by sec. 6 of the Limitation Act cannot be availed of by the sons not in existence at the time of the alienationarticle 271a provides as follows: a suit by a Hindu to set aside an alienation of joint family property made before his birth by his grandfather without any justifying necessity is governed not by art. 126 but by art. 144. But the same principles apply. If the suit is brought more than 12 years after the date of alienation it is barred. ( 30 ) MR. Patel also invited our attention to the decision in BINDESHRI UPADHYA V. SITAL UPADHYA A. I. R. 1927 ALLAHABAD 702 In that case a suit was brought by the plaintiffs for a declaration that a certain mortgage deed executed on 22nd May 1915 by their father defendant No. 1 in favour of defendants Nos. 2 and 3 is invalid on the ground that their father executed the deed without legal necessity and that the property being an occupancy holding could not be transferred under the provisions of the Tenancy Act. The defendant had raised a plea that the suit was barred by limitation. The trial Court having applied Art. 126 Limitation Act found that the suit was maintainable as it was brought within 12 years of the date of the alienation impugned. The defendant had raised a plea that the suit was barred by limitation. The trial Court having applied Art. 126 Limitation Act found that the suit was maintainable as it was brought within 12 years of the date of the alienation impugned. In first appeal the District Judge held that Art. 126 was not applicable inasmuch as the plaintiffs were not asking for possession but only for a declaration. The point which was argued before the High Court was that the lower Appellate Court was wrong in refusing to apply Art. 126 of the Limitation Act. It was contended that Art. 126 will apply even though the alienee does not get possession of the mortgaged property in cases where the interest actually mortgaged was not capable of physical possession. The said proposition was not accepted by the High Court. Mr. Patel submitted that in cases where the alienee does not get the possession of the alienated property the provisions of Art. 126 of the Old Limitation Act equal to Art. 109 of the New Limitation Act cannot be made applicable. ( 31 ) IN CHINTAMAN V. BHAGVAN A. I. R. 1928 BOMBAY 383 Fawcett Ag. C. J. observed as follows :article 126 has frequently been applied in such cases. A recent instance is the case of RANDOP SINGH V. PARMESWAR PRASAD (supra) where the Privy Council applied that article to a similar case. But undoubtedly that article contemplates the case of an alienation where the alienee has taken possession of the property because limitation only runs from the date when the alienee so takes possession. It is only when such possession has been taken that any cause of action accrues to the plaintiff so far as Art. 126 is concerned. ( 32 ) MR. Patel also invited our attention to secs. 26 and 27 (1) of Baroda Hindu Nibandh which provides as follows : he also invited our attention to sec. 27 (1) of Baroda Hindu Nibandh : ( 33 ) MR. Patel also invited our attention to B. B. Mitras Limitation Act 14 Edition page 420. On that page under the caption when time runs it is stated that the Legislature has clearly fixed an overt and patent fact namely the taking of possession of the property by the alienee as the event from which the period has to be calculated. Patel also invited our attention to B. B. Mitras Limitation Act 14 Edition page 420. On that page under the caption when time runs it is stated that the Legislature has clearly fixed an overt and patent fact namely the taking of possession of the property by the alienee as the event from which the period has to be calculated. so as to avoid as far as possible the difficult question as to the notice. The cause of action accrues when the alienee takes possession and no new cause of action arises on the death of the plaintiffs father. ( 34 ) WE have carefully considered the aforesaid authorities and the provisions of law pointed out to us from Arts. 126 and 144 of the Old Limitation Act equivalent to Arts. 109 and 65 respectively of the New Limitation Act. We have also seen sec. 6 of the Limitation Act. Sec. 6 (1) of the Limitation Act 1963 provides as follows :6 (1 ). Where a person entitled to institute a suit or make an application for the execution of a decree is at the time from which the prescribed period is to be reckoned a minor or insane or an idiot he may institate the suit or make the application within the same period after the disability has ceased as would otherwise have been allowed from the time specified therefore in the third column of the Schedule. SEC. 9 of the New Limitation Act provides as follows :9 Where once time has begun to run no subsequent disability or inability to institute a suit or make an application stops it:provided that where letters of administration to the estate of a creditor have been granted to his debtor the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues ( 35 ) IN view of the aforesaid doctrine of overlapping it is clear to us that in the instant case defendant No- 1 s father was in existence in the H. U. F. who had a right to challenge the alienation evidenced by Ex. 64 dated 7th April 1951 It is equally clear to us that the plaintiff was in existence in the mothers womb in September 1952 when defen- dant No. 1s father was alive. Therefore the two lives viz. 64 dated 7th April 1951 It is equally clear to us that the plaintiff was in existence in the mothers womb in September 1952 when defen- dant No. 1s father was alive. Therefore the two lives viz. the life of defendant No. 1s father who had a right to challenge and the life of the plaintiff in the mothers womb overlapped. In the context of these facts the plaintiff had a right to challenge the impugned alienation of year 1951. ( 36 ) THE next contention of Mr. Patel was that the plaintiff could only challenge the said alienation within a period of 12 years after the plaintiff took possession of the properties alienated. In the instant case Mr. Patel submitted that Maganlal Hargovandas Soni took the possession of the alienated properties in the year 1954 when the plaintiff was a minor and hence he was under a legal disability to file the suit challenging the impugned alienation. Mr. Patel submitted that in view of this the suit which was filed on 9th August 1968 was filed in time. ( 37 ) IN order to appreciate the contention of Mr. Patel we looked at the plaint Ex. 1. No specific averment is set out in the plaint indicating that Maganlal Hargovandas Soni took the possession of the alienated properties in the year 1954. The only allegation in this behalf is contained in para 12 of the plaint and that averment is that the cause of action to file the said suit had arisen on 19th February 1968 when the plaintiff came to now about the suit alienations. Now it is well settled that it is the duty of the plaintiff to show as to how the suit is filed within a period prescribed by law of limitation by stating clearly the facts in the plaint. In the instant case no such averments are set out in the plaint. ( 38 ) BUT apart from the absence of the relevant averments in the plaint we also saw the written statement Ex. 6 given by defendant No. 1 but the same is also silent as to when the alienee Maganlal Hargovandas Soni took the possession of the alienated properties. Defendant No. 1 could have been the best witness but as stated earlier he did not enter the witness box to give evidence. 6 given by defendant No. 1 but the same is also silent as to when the alienee Maganlal Hargovandas Soni took the possession of the alienated properties. Defendant No. 1 could have been the best witness but as stated earlier he did not enter the witness box to give evidence. Defendant No. 2 the mother of the plaintiff and defendants Nos. 3 and 4 the sisters of the plaintiff are also silent about the same in their respective written statements. The alienee Maganlal Hargovandas Soni is not a party to the suit nor he has been examined as a witness in the case. Even on reading the written statement Ex. 13 of defendant No. 5 it is difficult for us to come to the conclusion as to when the alienee Maganlal Hargovandas Soni took the possession of the alienated properties. Such a contention does not arise from the pleadings of the parties. In this behalf the necessary issue was not raised before the learned trial Judge. The parties did not focus their attention on this aspect of the matter and hence it is not possible for us to agree or accept the said submission of Mr. Patel. In the instant case however the impugned alienation evidenced by the document dated 7th April 1951 clearly shows that the possession of the alienated properties was given to the alienee Maganlal Hargovandas Soni on that day. But assuming that the suit was filed in time even then it must fail against defendant No. 5 as we have already taken the view that the alienation evidenced by Ex. 64 was effected for the legal necessity of the H. U. F. for the benefit of the estate of the H. U. F. and for payment of antecedent debts of the family. Mr. Patel also submitted that no consideration was passed by the alienee Maganlal Hargovandas Soni for the alienation of the H. U. F. properties in the year 1951 in favour of defendant No. 1 but in view of the clear recitals contained in Ex. 64 and the evidence of Chhotalal Ranchhodji Desai Ex. 58 it is not possible for us to agree or accept the said submission of Mr. Patel. ( 39 ) MR. Patel then submitted that defendant No. 5 did not pay any consideration to Maganlal Hargovandas Soni for effecting the transaction evidenced by Ex. 64 and the evidence of Chhotalal Ranchhodji Desai Ex. 58 it is not possible for us to agree or accept the said submission of Mr. Patel. ( 39 ) MR. Patel then submitted that defendant No. 5 did not pay any consideration to Maganlal Hargovandas Soni for effecting the transaction evidenced by Ex. 57 dated 17th October 1958 On this point we are having the unimpeachable evidence of defendant No. 5 who deposed that he paid to Maganlal Hargovandas Soni a sum of Rs. 7995/- for effecting the said transaction and the contents of Ex. 57 corroborate the same. In this view of the matter there is no substance in this submission of Mr. Patel. ( 40 ) MR. Patel then submitted that the learned trial Judge was in error in dismissing the plaintiff s suit for the reasons mentioned in the earlier part of the judgment as Maganlal Hargovandas Soni was a necessary party to the suit. Mr. Patel is right in his submission. No doubt Maganlal Hargovandas Soni would have been a proper party in the suit but on that count the learned trial Judge should not have dismissed the plaintiffs suit against defendant No. 5. . ( 41 ) WE may mention here that Defendant No. 5 in his evidence at Ex. 56 deposed that when he had purchased the alienated property in the year 1958 from Maganlal Hargovandas Soni defendant No. 1 had attested the document Ex. 57 in his favour and further stated in his presence that defendant No. 1 had signed the document Ex. 64 dated 7-4 1951 in favour of Maganlal Hargovandas Soni which provides in terms that the possession of the alienated property was given to him in the year 1951. Defendant No. 1 could have objected to such a recital in Ex. 64 if the possession of the alienated property was not given to the alienee in the year 1951. No such plea was taken in the written statement of defendants Nos. 1 to 4 and defendant No. 5 was not cross-examined on this point by defendant No. 2. In this view of the matter we cannot agree with the submission of Mr. Patel that the possession of the alienated property was given to the alienee Maganlal in the year 1954. ( 42 ) THESE were the only contentions raised by Mr. 1 to 4 and defendant No. 5 was not cross-examined on this point by defendant No. 2. In this view of the matter we cannot agree with the submission of Mr. Patel that the possession of the alienated property was given to the alienee Maganlal in the year 1954. ( 42 ) THESE were the only contentions raised by Mr. Patel for attacking the legality of the alienation in favour of defendant No. 5 and as we do not find any substance in the same we agree with the ultimate conclusion arrived at by the learned trial Judge in this behalf ( 43 ) THAT brings us to the attack of Mr. Patel on the alienation effected by defendant No. 1 in favour of defendant No. 6 evidenced by Ex. 69 dated 6th November 1962 His main attack was on two grounds viz. :- (1) That the impugned alienation was effected without any legal necessity; and (2) That defendant No. 6 did not pay to defendant No. 1 any consider- ation for effecting the said alienation. ( 44 ) THUS on a careful reading of the aforesaid oral evidence we are convinced that the impugned alienation Ex. 69 was effected by defendant No. 2 for legal necessity viz. for the marriage expenses of the daughter of defendant No. 1 and for other family expenses. In this behalf as stated above the oral evidence of the aforesaid witnesses is duly corroborated by the contents of Ex. 69 and 28/3 (Ex. A of the record of the appeal ). On reading the said evidence we are also convinced that in the instant case defendant No. 6 did not pay to the defendant No. 1 the amount of consideration as mentioned in Ex. 64 and Ex. 28/3. As a result of the said discussion we are convinced that there is no substance or merit in the submission made by Mr. Patel that the alienation dated 6th November 1962 evidence by Ex. 69 by the defendant No. 1 in favour of defendant No. 6 was effected without any legal necessity or without receiving any consideration. ( 45 ) THESE were the only contentions raised by Mr. Patel for attacking the legality of the alienation dated 6th November 1962 ( 46 ) WE have carefully considered all the submissions made by Mr. Patel and there is no substance or merit in any of his submissions. ( 45 ) THESE were the only contentions raised by Mr. Patel for attacking the legality of the alienation dated 6th November 1962 ( 46 ) WE have carefully considered all the submissions made by Mr. Patel and there is no substance or merit in any of his submissions. ( 47 ) IN the result the appeal is dismissed with costs. As the appeal is filed in forma pauperis a copy of the decree be sent to Collector for recovering the requisite amount of courtfees. .