JUDGMENT V. Khalid, J. 1. Defendants 1 and 3 in O.S.No. 698 of 1967 of the Munsiff's Court, Shertallay, are the appellants. The suit was for cancellation of Ext. D-2 settlement deed and for recovery of possession of the properties. The plaint averments, in short, are as follows: Plaintiff and the defendants belonged to the same tarwad. At the relevant time, the 6th defendant was the karnavan. 6th defendant had a brother Padmanabhan Unni by name and a sister Ammukutty Amma. They were the children of one Kochukuttan Unni. Ammukutty Amma had two children, a son Krishnan Unni and a daughter Kavukutty Amma. The plaintiff and Manian (the deceased) were the sons of Kavukutty Amma. The first defendant is the widow of Padmanabhan Unni and defendants 2 to 5 are his children. 2. The properties in question belonged to deceased Padmanabhan Unni, on whose death the same vested in his tarwad. 6th defendant, Parameswaran Unni, executed a settlement deed Ext. D-2 dated 6th Chingam 1123 in favour of the first defendant. It is this settlement deed which is impugned in this suit as being invalid, not supported by consideration and tarwad necessity. It is also contended that it is beyond the authority of the 6th defendant. 3. Defendants 1 and 3 contended among other things that the suit is not maintainable, that it is barred by limitation and that the plaintiff, an after-born member, is no competent to question the same. The system of law governing the parties was also in dispute. It was further contended that the first defendant had discharged the debts charged on the properties and had also taken a release of the leasehold right and that in any case all that is available to the tarwad is only the right, less the leasehold interest. 4. The trial court dismissed the suit accepting the plea of limitation, since the plaintiff was born after the impugned alienation. The other issues were found in favour of the plaintiff. The plaintiff filed an appeal. The appellate court reversed the finding on the question of limitation and decreed the suit. This second appeal challenges the above judgment and decree of the appellate court. 5. The following are the points raised by counsel for the appellants in the second appeal: (i) What is the personal law governing the parties; (ii) Whether the suit is barred by limitation; (iii) Whether Ext. This second appeal challenges the above judgment and decree of the appellate court. 5. The following are the points raised by counsel for the appellants in the second appeal: (i) What is the personal law governing the parties; (ii) Whether the suit is barred by limitation; (iii) Whether Ext. D-2 is binding on the tarwad; (iv) What, if any, is the right available to the tarwad. In the course of arguments in this court a further point is raised as to whether a gift is void or voidable. 6. Regarding the first question, there is an indirect admission in this case, that the parties are governed by the Marumakkathayam Law. Counsel for the appellants would contend that an admission on a question of law cannot be binding on the party making it. Even if the parties have admitted that they are governed by Marumakkathayam Law, the matter has to be decided on merits. 7. The courts below have considered this question not only with reference to the so called admission but also with reference to the available evidence and have come to the conclusion, according to me rightly, that the parties are governed by the Marumakkathayam Law, I shall briefly state my reasons for agreeing with the courts below on this question. 8. The parties are Pushpakans or Unnis. In the book, Principles of Marumakkathayam Law, by M.P. Joseph, at page 446, the second paragraph deals with Pushpakans or Unnis. With reference to decided cases, the author observes that Pushpakans of North Travancore follow the Makkathayam Law, and those of the south, the Marumakkathayam Law. It is also observed, that in one case, it was assumed that the Pushpakans follow Makkathayam Law. 9. The counsel for the appellant cited a decision of this court reported in Krishnan Oonni v. Parameswaran Oonni, 1967 K.L.T. 1161, where Raman Nayar, J., appears to have assumed, that Unnis are followers of Makkathayam Law. I do not think that the question can be decided on these materials. The parties here belong to Shertallai, which falls in the north Travancore area. Solely on this ground, it cannot be held that they follow Makkathayam Law. I do not think that the question can be decided on these materials. The parties here belong to Shertallai, which falls in the north Travancore area. Solely on this ground, it cannot be held that they follow Makkathayam Law. On a consideration of the passages in the book and other materials available before me, I am inclined to hold that irrespective of the fact whether the parties come from the north Travancore area or the south, each case has to be decided on its own facts, and no hard and fast rule can be laid down regarding Unnis of a particular area. 10. In this case, fortunately, we have satisfactory materials to hold that the parties are governed by the Marumakkathayam Law. Ext. D-1 is a Dhananischayadharam by the father, Kochukuttan Unni, in favour of Padmanabhan Unni in the year 1106. Normally, if parties are Makkathayees, the house name of the father and the son would be the same. But in Ext. D-1, we find the house name of the father differs from the house name of his son. This is one piece of evidence in favour of the Marumakkathayam plea. Ext. D-3 is a mortgage deed executed by Padmanabhan Unni in favour of one Embran in the year 1108. Padmanabhan Unni describes himself as a Marumakkathayee and the mortgagee Embran as a Makkathayee. This again is a conscious and deliberate act to clearly bring out the distinction in the systems of law followed by the mortgagor and the mortgagee; another piece of evidence in support of the respondents case. Ext. D-5 of the year 1113 executed by Padmanabhan Unni contains the expression Malayalam. Ext. D-6 indicates that the property was dealt with by the 6th defendant as a property belonging to the tarwad. In paragraph 1 of the plaint it is clearly pleaded that the properties belonged to a tavazhi. In the written statement, this case is met in paragraphs 4, 5 and 6 with the plea that the properties were acquired as Malayalam. Neither in the plaint nor in the written statement was the point pointedly raised as to what is the personal law that governed the parties. Issue No. 4, which indirectly deals with this question, also is not happily worded. Neither in the plaint nor in the written statement was the point pointedly raised as to what is the personal law that governed the parties. Issue No. 4, which indirectly deals with this question, also is not happily worded. Issue No. 4 reads as follows: Are the plaint schedule properties the family properties of the plaintiff and 6th defendant?� It was under this issue that the law governing the parties was discussed by the trial court. 11. The matter is also concluded by the evidence of P.W. 1 and D.W. 1. P.W. 1 clearly deposed that the property belonged to the tarwad. This was not challenged in cross-examination. D.W. 1 began his cross-examination with the admission Malayalam. These answers, therefore, for the purpose of this second appeal, conclude the question against the appellants and in favour of the respondents. 12. I thought it necessary to refer to this aspect of the case since there was a fervent appeal by the appellants counsel to call for a finding from the court below, regarding the system of law governing the parties. This was opposed by the respondents counsel. Reliance was placed on a decision of this court reported in Chithalan v. Ammu Amma and others, 1968 K.L.T. 123 at 125 and on Naqubai v. B. Shama Rao, A.I.R. 1956 S.C. 593. The ratio of these two cases is, that if the parties joined issue and went to trial, conscious of the points in dispute and evidence was let in to that effect, and if there were sufficient materials before court to come to a finding either way, it is not necessary that the matter should be sent back for the same purpose. In this case, this principle should apply. The matter has been examined in all its aspects. The parties knew the dispute involved. Therefore I hold that the parties in this case are governed by the Marumakkathayam Law and not makkathayam. 13. The second question that was agitated before me, rather forcefully, by the counsel for the appellant is the bar of limitation. The plea of limitation had two limbs; one based on section 7 of the Limitation Act and the other that an after-born member cannot impeach an alienation effected when he was not in existence. 13. The second question that was agitated before me, rather forcefully, by the counsel for the appellant is the bar of limitation. The plea of limitation had two limbs; one based on section 7 of the Limitation Act and the other that an after-born member cannot impeach an alienation effected when he was not in existence. The respondents counsel submitted that the first contention is concluded by the Full Bench decision of this court reported in Kunhammad v. Narayanan Nambudiri , 1963 K.L.T. 759 F.B. The following extracts lay down the principal enunciated in the said decision: "What is material under section 7 Limitation Act, is the competency of a party to give a discharge of the right and not of his capacity to cause a discharge by the court."� "If the right to avoid an unauthorised alienation of tarwad property be a right of the tarwad, its discharge can be given only by the karnavan who is the accredited representative, the head and the mouthpiece of the tarwad. If the right is of the group, it logically follows that only that member who can represent the group under the substantive law, is competent to give a discharge without the concurrence of the others. That representative is the Karnavan in the case of the tarwad. Here the 6th defendant was alive till the suit was filed and since he alone could give an effective discharge for the tarward, the suit was within time. 14. The counsel for the appellants attempted to get over this decision thus: There were two tavazhies; one of Ammukutty Amma and her son Krishnan Unni, and the other of Kavukutty Amma, plaintiff and Maniyan. They constituted two separate groups and two separate stocks of descent. They could have satisfactorily attacked the alienation on behalf of their tavazhies. Krishnan Unni was senior to the plaintiff. He did not question Ext. D-2. Manian, who was senior to the plaintiff, also did not question Ext. D-2. In view of the inaction on their part, the plaintiff is barred from bringing the suit. 15. This argument has no force. We are here not concerned with the tavazhies of Ammukutty Amma and Kavukutty Amma. We are here dealing with the tarwad of which the 6th defendant was the karnavan. D-2. In view of the inaction on their part, the plaintiff is barred from bringing the suit. 15. This argument has no force. We are here not concerned with the tavazhies of Ammukutty Amma and Kavukutty Amma. We are here dealing with the tarwad of which the 6th defendant was the karnavan. While considering the alienation effected by the karnavan, what we have to see is whether any person other than the 6th defendant could have given a valid discharge. To use the expression of the Full Bench, the 6th defendant is the accredited representative and mouthpiece of the tarwad and so long as he was alive, nobody else could give an effective discharge of the liability. 16. The appellants counsel then put forward another argument based on a Full Bench case reported in Nani Pankajakshy v. Kunjan Krishnan, 1947 T.L.R. 320 (F.B.). The relevant portion of the judgment in that case is extracted below: The case of an unjustified alienation of tarwad property is a spoliation and a breach of trust. It is a tort committed against the tarwad. The task of setting aside the wrongful alienation and to obtain judicial remedies for tarwad protection cannot be entrusted by law into the hands of the very tortfeasor who committed the wrong. The robust common sense of the law would abhor such a situation. The alienating karnavan or manager is necessarily relieved of his representative position in the matter of adjudication of the binding character of the alienation that is questioned Under the law and the Marumakkathayam usage, the karnavan loses his right to represent the tarwad only in respect of acts which are beyond his competance to do and any member of the tarwad may take on himself the karnavans duty of protecting the affairs of the tarwad by establishing a justifiable claim to set aside an act of spoliation or an unwarranted alienation of the karnavan. The argument is that when a karnavan alienates a property, he ceases to be the karnavan of that property, and therefore it is the succeeding karnavan who has a right to give effective discharge mentioned in section 7 of the Limitation Act. If I understand the above judgment to mean that on an alienation, not sanctioned by law, a karnavan ceases to be a karnavan in relation to that property, I hold, with respect, the law laid down is not sound. If I understand the above judgment to mean that on an alienation, not sanctioned by law, a karnavan ceases to be a karnavan in relation to that property, I hold, with respect, the law laid down is not sound. If this argument is to be accepted, there will be a karnavan for the unalienated properties and other karnavans for alienated properties in one and the same tarwad. This argument, according to me, is an argument of despair and cannot be countenanced. According to me, the matter is set at rest, by the Full Bench case reported in 1963 K.L.T. 759. The plaintiffs suit is within time. 17. The second limb of the argument on the question of limitation is based on the contention that an after-born member of a joint family has no right to impeach an alienation which came into being before his existence. The plaintiff was born on 7th Mithunam 1124. Ext. D-2 is dated 6th Chingam 1123. Support for this contention can be had in the following passage occurring in the Book on Hindu Law of Principles and Precedents by N. R. Raghavachariar at page 264: "Besides, a coparcener born subsequent to an unauthorised alienation by another coparcener like the father has a right to avoid alienation if made at a time when the other members of the coparcenary not parties to the deed, were alive. But this does not mean that he has a fresh start for the purposes of limitation from the time of his birth."� "No doubt a son cannot object to an alienation validly made by his father before he was born or begotten, but if the alienation was made by a father without the consent of the sons then living and not for any binding purpose it would not only be invalid against them but also against any son born before they had ratified the transaction and where there had been no such ratification, a son born before or after the alienation is entitled to impeach it on the ground that it is unauthorised by a suit instituted for the purpose, and the fact that some of the sons who were alive at the date of the alienation had not brought a suit within the period of limitation for setting it aside does not operate as a bar to the suit instituted at the instance of the others of such sons who were minors at the time and the after-born sons, to have the alienation set aside, if the suit is brought within three years after attainment of the majority of such of those plaintiffs who were alive on the date of alienation."� In Mulla's Hindu Law, 14th Edition, at page 340, para 270 reads: "270. Objections to alienations by coparceners existing (born or conceived) at the time of the alienations.”(1) Where an alienation is made by a coparcener in excess of his powers, it may be set aside to the extent mentioned in sections 268 and 269 at the instance of any other coparcener who was in existence at the time of the completion of the alienation. It may also be set aside at the instance of any coparcener who though born subsequent to the date of alienation, was in his mother's 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.� (2) By after-born coparceners. 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. 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 (Sections 259 and 260). If all the sons living at the time of the alienation predecease their father and no other son is born before the death of the last of them so that the father remains the sole coparcener for some time, then the alienation is not liable to be impeached by the after-born sons. If, before the sons alive at the time of the alienation are all dead, another son is born, in the states referred to in section 260, the alienation may be set aside at the instance of the latter also, unless before his birth, the former ratified it, or their cause of action is lost by limitation.� 18. Counsel for the respondent however relied upon the decision of the Full Bench of this court reported in Kumaraswami Mudaliar v. Rajamanickam Udayar, 1966 K.L.T. 361 (F.B.). In that case, the observation which is relied upon by him is at page 366. "The right to impeach an unauthorised alienation of the joint family property is inherent in every member of the coparcenary, even in after-born coparceners as above mentioned." From this observation, it was contended that every member born or conceived before or after the alienation in question, has an inherent right to question it. 19. Counsel for the appellant contended that the said decision applied to the facts of that case and necessary weight has to be given to the words "as above mentioned. To appreciate this contention the facts of that case have to be stated in brief: There were two plaintiffs in that suit. They were the children of the 24th respondent. Respondents 24 and 25 were brothers. The verumpattom right belonging to the members of the tarwad was sold by respondents 24 and 25. To appreciate this contention the facts of that case have to be stated in brief: There were two plaintiffs in that suit. They were the children of the 24th respondent. Respondents 24 and 25 were brothers. The verumpattom right belonging to the members of the tarwad was sold by respondents 24 and 25. The suit was filed for partition and recovery of possession of the shares of the plaintiffs in the plaint items on the ground that Ext. B-5 is not supported by consideration and family necessity. The first plaintiff was born four days prior to Ext. B-5. The 2nd plaintiff was born subsequent to Ext. B-5. In the suit he was represented by the first plaintiff. The court held that the 2nd plaintiff who was born during the lifetime of the first plaintiff though subsequent to Ext. B-5 also had a right to avoid the alienation. It cannot be disputed that the first plaintiff had a right to question the alienation, since he was born prior to the date of Ext. B-5. The 2nd plaintiff was an after-born child. Normally he has no right to question the alienation. Normal rule is that a member of a joint family must be content with the family estate as he finds it on the date of his birth and that he cannot complain about anything done before the period of gestation. But there is an exception to this rule. That is, if a child who objects to the alienation comes into existence or is conceived, after the alienation, but during the life of a child born or conceived before the alienation, then the overlapping of two lives enables the latter born child to contest the validity of the fathers alienation. This was the point that arose in the Full Bench case and that is why the Full Bench observed that the right to impeach an unauthorised alienation is available even to after-born coparcener as above mentioned. 20. Reliance was also placed on a decision of the Privy Council reported in Panchaiti Akhara v. Surajpal Singh, A.I.R. 1945 P.C. 1. In that case, one Surajpal Singh, who had four sons alienated a property in 1920. His first son was born on 18th August 1918. The first son died when the 2nd son was only 7 months old. 20. Reliance was also placed on a decision of the Privy Council reported in Panchaiti Akhara v. Surajpal Singh, A.I.R. 1945 P.C. 1. In that case, one Surajpal Singh, who had four sons alienated a property in 1920. His first son was born on 18th August 1918. The first son died when the 2nd son was only 7 months old. There, though the question whether the infant sons of Surajpal Singh could contest the alienation of the family estate was raised, their Lordships held that since on evidence it is established that the 2nd son was alive when the first son died, there was overlapping of two lives and hence the minor sons were entitled to challenge the validity of the mortgage right. The case on hand differs from this case on facts. 21. The decision reported in Guramma v. Mallappa, A.I.R. 1964 S.C. 510 was also brought to my notice. In that case one Chanbassappa executed two gift deeds on the 4th and 5th January 1944. He died on 8th January 1944, leaving three widows. One of the widows gave birth to a posthumous child. Another widow adopted a son on 30th January 1944. The question of limitation was considered in that case. In that decision we have the following observation: "The sole surviving member of a coparcenary has an absolute power to alienate the family property, as at the 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 members 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 inducted therein by adoption before such consent or ratification, his right to avoid the alienation will not be affected."� 22. The counsel for the respondents brought to my notice, a decision reported in N. Krishniah Setty v. Gopalakrishna and others, 1974 (11) S.C.W.R. 366. That related to an attachment which was void ab initio. The counsel for the respondents brought to my notice, a decision reported in N. Krishniah Setty v. Gopalakrishna and others, 1974 (11) S.C.W.R. 366. That related to an attachment which was void ab initio. When the minor questioned the same, it was held by the Supreme Court, that though the minor was not born at the time when the attachment took place, he had a right to question the same by his birth in the family. The relevant discussion is at para 3, which is extracted hereunder: "We are in agreement with the learned Judges of the High Court that the view taken by the District Judge that as the plaintiffs were not born on the date of the sale, they cannot challenge its validity is wrong. A void sale, as we have already held the sale in execution of the decree obtained by the appellant in this case to be, confers no title on the auction purchaser and, therefore, the joint family to which the properties belonged continued to be the owners of that property and did not lose their title thereto. The plaintiffs got a right to the property as soon as they were born not by way of succession but by right of birth. Therefore, plaintiffs were certainly entitled to file a suit questioning the sale."� 23. Counsel for the appellants contended that this decision is not applicable to the case on hand on the ground that the alienation in question was a void one, which means that the tarwad did not lose any right in the property attached. A void alienation does not divest the family of its right in the property. On the other hand, a voidable transaction at the instance of a limited owner, including the manager of a joint family, divests the tarwad of its right and the tarwad gets back the right only when it is avoided. Therefore, according to him, the ratio of the above case cannot be attracted to the case on hand. This contention is valid if Ext. B-2 is only a voidable transaction. 24. I may also refer to a decision of the Full Bench of the Bombay High Court reported in Shivaji Ganapathi v. Murlidhar Paji, A.I.R. 1954 Bombay 386. Therefore, according to him, the ratio of the above case cannot be attracted to the case on hand. This contention is valid if Ext. B-2 is only a voidable transaction. 24. I may also refer to a decision of the Full Bench of the Bombay High Court reported in Shivaji Ganapathi v. Murlidhar Paji, A.I.R. 1954 Bombay 386. This case was not cited at the bar, but it can be usefully referred to, as it is an illuminating judgment on the question of law involved in this case and for its lucid exposition. There, G, the father, made an alienation of joint family property in 1936. At that time, the joint family consisted of G and his son M. M was given away in adoption in 1942. But before the adoption, the plaintiffs were born to G. The plaintiffs filed the suit to challenge the alienation. The matter came before a Division Bench of the Bombay High Court in second appeal. Since an earlier Division Bench decision needed reconsideration, it was referred to a Full Bench. Two questions were referred. They were: (1) Whether under the 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; (2) If not, does he acquire the said right if at the time he was born there is in existence another son who could have challenged the alienation and he has not lost that right. Chagla, C. J. observed in para 6 as follows about the doctrine of overlapping: "Before I refer to that decision, perhaps it would be better to explain what has been called the doctrine of overlapping. As I have pointed out, in order that an after-born 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 coparcenary subsequently. 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 coparcenary 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 which the Privy Council considered in a subsequent case in 1945 P.C. 1."� The court considered the decisions reported in A.I.R. 1939 Allahabad 486, A.I.R. 1936 Madras 440, A.I.R. 1925 P.C. 33, A.I.R. 1922 Allahabad 342, A.I.R. 1940 Madras 691 and A.I.R. 1942 Patna 99. After referring to the Privy Council decision in 1915 P.C. 1, the learned Chief Justice observed: "Therefore, the Privy Council clearly enunciates the principle of Hindu law that a member of a joint family must take the property of the joint family as he finds it, when he is born."� The matter was further classified in paragraph 18 of the judgment thus: "If a father alienates joint family property without necessity, the alienation is voidable if there was a son born or conceived at the date of the alienation. This son has a right to challenge the alienation. This right may be lost if the son consents to the alienation. It may be lost if the son dies or is given in adoption. It may be lost by lapse of time. But if before the right is lost another son is born, this after-born son can avail himself of the right to challenge the alienation as effectively as his elder brother could have, done."� Thus the learned Chief Justice answered the second question in the affirmative. The first question was answered thus: "..the right of an after-born son is not an unlimited right, but it is a right circumscribed in the manner I have indicated in the judgment."� Dixit, J. who concurred with the Chief Justice, laid down the law as follows: "The general rule is that a son not ill existence at the date of an alienation cannot challenge the alienation and he must take the family property as he finds it at his birth. To this rule, there is an exception. To this rule, there is an exception. The exception is that if a son is born subsequently to the date of an alienation, but during the lifetime of a son in existence at the date of the alienation, he may, by suit, challenge the alienation after the death of the latter or after the latter's adoption into another family. In such a case also, if the challenge is successful, it enures for the benefit of all. The exception is based upon the doctrine of overlapping of lives recognised by the Privy Council in A.I.R. 1945 P.C. 1."� Shah, J. also agreed with this view. 25. Thus, the ultimate position so far as the question of limitation is concerned can be summarised as follows. A member of a joint family takes the property as he sees it on his birth or on his adoption. An alienation, which is voidable, causes cessation of interest in the property alienated. The right to question an alienation is not purely a personal right but is a right that belongs to the joint family, and once a member questions the alienation successfully then the property reverts back to the family and the benefit enures to all the members. If an alienation is void, then the property does not go out of the tarwad. Even an after-born son gets, interest in such property. In cases of voidable transaction, an after-born son gets the right to question such alienation only if there was in existence another person, who could have questioned the said alienation. If such persons have not questioned the alienation, within the period of limitation, then an after-born son loses his right to question the same. In other words, it is only when a member who had a right to question the alienation when the after-born child comes into existence, allows that right to lapse by limitation, that the after-born child loses his right. In this case however we do not have the same set of facts as in the cases discussed above. Here, the facts are simple. At the time, the plaintiff was conceived, the alienation had taken place. When he filed the suit, all the other members who might have successfully challenged the alienation allowed their right to lapse by limitation and therefore the plaintiff does not get any right to challenge the alienation in question. This principle applies if the transaction is voidable. At the time, the plaintiff was conceived, the alienation had taken place. When he filed the suit, all the other members who might have successfully challenged the alienation allowed their right to lapse by limitation and therefore the plaintiff does not get any right to challenge the alienation in question. This principle applies if the transaction is voidable. 26. Counsel for the respondent then contended that the right to impeach an alienation is vested in the tarwad and when a minor who attains majority questions it, it is on behalf of the tarwad and not for himself. Therefore even an unborn coparcener or a member of the tarwad has a right to question an alienation on birth since he acquires that right on birth. In support of this contention, he invited my attention to the following observation in Kunhammad v. Narayanan Nambudiri, 1963 K.L.T. 759 appearing at page 768 to the following effect: "This right has been described as a right of the tarwad or family in the rulings of the Travancore and of the Travancore-Cochin High Courts cited above and in 1959 K.L.T. 621 and as an individual personal right in 28 Cochin 388 and 38 Cochin 379. In my opinion, it is a right of the tarwad or family which, as every other right of the tarwad or family, may be exercised either by the head of the tarwad or family, or, if he be negligent in exercising it or has made himself incapable of exercising it by any other member of the tarwad or family. Junior members of tarwad have therefore been described as co-proprietors of its properties having equal rights with all other members of the tarwad, subject of course to well-known restrictions in the exercise of such rights in the common interest of all concerned"� Again in the same judgment, Velu Pillai. J., at page 771, observes thus: The right to impeach or to set aside an alienation of property belonging to that group is in essence a right of that group, which may be exercised on its behalf by any of its members: yet, for that reason, it does not seem proper to hold that the right so exercised is his personal or individual right. The loss of property by alienation is of the group, the suit to recover when laid is on behalf of the group and the property when recovered goes back to the group; every member of the group has no doubt a proprietary right, but that right is in all the groups belongings, that it may well be said, that the right is of the group exercisable through any of its members. I am afraid that these observations cannot save the plaintiff in this case, since for a member to exercise that right on behalf of the tarwad, the member should have the right available to him and if it is barred by limitation, he cannot sue on behalf of the tarwad. 27. Counsel for the respondent raised a new plea when the appeal was reposted that even granting that an after-born child cannot question a voidable transaction, he could question it if it is a void transaction. Ext. D-2 in this case is a gift deed. Neither the statutes nor any customs authorises any manager or karnavan to gift away tarwad property for love and affection. He has a right to sell, alienate or lease, for tarwad necessity and for consideration. It is not laid down anywhere that the manager or the karnavan of a joint family could gift away the property in token of love and affection. Such a transaction is ab initio void. Ext. D-2 is one such. It is called a dhananischayadharam. Lower down therein it is said: Malayalam This document cannot come within the rights of a karnavan. The plaintiff therefore has a right to question this transaction. The Supreme Court decision reported in 1974(2) S.C.W.R. 366 helps him here. 28. That a gift, made for love and affection, is a void transaction is supported by the Supreme Court decision reported in Guramma v. Maltappa, A.I.R. 1964 S.G. 510. In that case, the donee was described as the donors relative. The gift was in token of love for the services rendered by the donee to the donor during the latters lifetime. The gift was made as it was narrated in the document, out of love and affection, for the donee. Their lordships first addressed themselves to the question whether such a gift can be said to be for pious purposes within the meaning of Hindu law. The gift was made as it was narrated in the document, out of love and affection, for the donee. Their lordships first addressed themselves to the question whether such a gift can be said to be for pious purposes within the meaning of Hindu law. After discussing the said question, which is not relevant for our purpose, the law regarding gifts to strangers is summed up in the last sentence as follows: "In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void." I think, this contention, though not taken pointedly before the courts below, is a question of law and can be allowed to be taken up in second appeal. On a reading of Ext. D-2, it is clear that it is executed out of love and affection. The consideration mentioned in the document is also love and affection. It cannot be said to be an alienation for tarwad necessity. Neither can it be said to be supported by consideration. I hold that Ext. D-2 is a void document. No right passes to the donees as per this document. It remains with the tarwad. As such the plaintiff gets a right to question it. The suit therefore is within time. 29. Counsel for the appellant however contended that the law has recognised in the karnavan a power to execute any document including a void document. For this purpose, the decision in Mathew v. Ayyappankutty, 1962 K.L.T. 61 (F.B.) was brought to my notice. I do not find in the said judgment anything to the effect that the karnavan or the manager of a joint family had the power to execute a document to a stranger by way of gift, the consideration being love and affection. There the question was only of the nature of the transaction. The question was as to what is 'void' and what is 'voidable 30. The next contention by the counsel for the appellant was that the transaction in question, Ext. D-2, is binding on the family as one supported by consideration and tarwad necessity. The document is a gift. The consideration shown is love and affection. No argument is necessary to show that a gift for love and affection can be said to be binding on the tarwad. I therefore hold that Ext. D-2 is not binding on the tarwad. Ext. The document is a gift. The consideration shown is love and affection. No argument is necessary to show that a gift for love and affection can be said to be binding on the tarwad. I therefore hold that Ext. D-2 is not binding on the tarwad. Ext. D-2 is dated 6th Chingam 1123. There was a charge created on 26th Thulam 1108, Ext. D-3, by Padmanabhan Unni. In 1113, as per Ext. D-5 the property was leased to one Velayudhan. This was renewed as per Ext. D-6, after Padmanabhan Unni's death, by Parameswaran Unni, in 1117. Ext. P-2 is a copy of Ext. D-6. Ext. D-4 is a receipt dated 6th Chingam 1123 by which the mortgagee was paid off. Ext. D-7 is the release of the lease, dated 17th Chingam 1123. As per this release, it is contended, defendants 1 to 5 came into possession of the property. What is contended is that even if the plaintiff is in law entitled to question Ext. D-2 all that the family can get is only the bare reversionary right and not the leasehold, right, which was an independent right which the defendants 1 to 5 got, whereby they came into possession. The plaintiff is therefore entitled only to the bare lessor's right and the lessee as per Ext. D-7 has to be protected. In other words, even if the document is to be avoided, the position as per the lease survives. 31. Counsel for the respondents would contend that this argument cannot be accepted. In fact, there has not been a discharge of any encumbrance or liability on the tarwad in this case. Ext. D-2 is a settlement deed. It câontains a direction get a release of the property. Ext. D-4 receipt bears the same date as Ext. D-2. Paragraph 3 of the plaint, clauses (b) and (c) details the circumstances under which the document is sought to be avoided. This is met in paragraphs 12 and 13 in the written statement with the plea that the property is not family property. The question posed before me has not been specifically pleaded in the written statement. By the execution of Ext. D-7, there is a merger of the two interests and the tarwad became entitled to the plenary right including the leasehold right. Ext. D-7 is an express surrender. The question posed before me has not been specifically pleaded in the written statement. By the execution of Ext. D-7, there is a merger of the two interests and the tarwad became entitled to the plenary right including the leasehold right. Ext. D-7 is an express surrender. Although in para 16 of the written statement mention was made about a separate right under Ext. D-7, when D.W.1 was examined he did not say anything about the special right, and in cross examination stated that he had only his father's right. 32. Counsel for the respondents relied upon section 101 of the Transfer of Property Act and contended that there was no intention, proved or indicated, that the defendants wanted to keep alive or keep separate the leasehold right. Mention was also made of section 111(d), (e), and (f) of the Transfer of Property Act, to highlight the effect of an express surrender. He also relied upon the provisions of sections 84 and 92 of the Indian Trusts Act in reinforcement of his contention that the benefit of the express surrender should enure to the entire tarwad, since the defendants should be deemed to be holding the property in trust on behalf of the tarwad. 33. As observed already, the facts and circumstances of the case including the evidence would indicate that the first defendant never intended to keep for herself the distinct and separate right over the properties covered by the leasehold. If she wanted to keep alive that right, she would have taken an assignment of the same. Instead, what is taken is a release which in effect means extinguishment, of the leasehold interest. It has therefore to be held that after Ext. D-7 the first defendant was not holding the property as lessee and she never intended to hold the same as lessee. To the same effect is the evidence of D.W. 1, which was adverted to, by me above. The finding of the appellate court on this issue is therefore upheld, and I hold that the defendants are not entitled to any special right over this item by virtue of Ext. D-7. 34. On a consideration of the facts and circumstances of the case, I hold that the appellants are not entitled to succeed in this case. 35. In the result, the second appeal is dismissed and the decree of the first appellate court is confirmed. D-7. 34. On a consideration of the facts and circumstances of the case, I hold that the appellants are not entitled to succeed in this case. 35. In the result, the second appeal is dismissed and the decree of the first appellate court is confirmed. Having regard to the peculiar facts and circumstances of this case, I direct the parties to bear their costs.