M. M. MIRDHE, J. ( 1 ) THIS appeal is preferred by the appellants who were theplaintiffs in the trial court against the judgment and decreedated 17-2-1987 passed by the first additional civil judge,belgaum, in o. s. no. 183 of 1984 dismissing the suit of theappellants for partition and separate possession, of the suitschedule properties. ( 2 ) WE have heard the learned counsel for the appellants andthe learned counsel for the respondents 2, 3 and 4 fully andperused the records of the case. ( 3 ) THE appellants as plaintiffs have filed the suit for partitionand separate possession of their share in the properties shown inpara l (a) on the following averments:that plaintiff no. 1 is the wife of defendant no. 1 andplaintiffs 2 to 5 are the daughters of plaintiff no. 1 anddefendant no. 1 and plaintiff nos. 6 and 7 are their sons. Theplaintiffs and defendant no. 1 constitute an undivided hindufamily. The suit properties are the joint family properties of theplaintiffs and defendant no. 1 and there is no severance of thestatus between the plaintiff and defendant no. 1. Defendant no. 1 is addicted to vices and he is squandering the family propertiesand he has alienated some of the properties. He illegally andunauthorisedly sold agricultural lands bearing r. s. no. 704/1,658/2, 5/1, 223/4, 659/3-a, 318 (western portion) situate atangol and r. s. no. 96/2 and 97/1 situate at belgaum in favour ofdefendant no. 2 who is the natural brother of defendant no. 1and the same was not for the benefit of the family or for anylegal necessity. The said sale deed is null and void and notbinding on the plaintiffs and the sale deed in favour of defendantno. 2 by defendant no. 1 is an outcome of the fraud and undueinfluence practised by defendant no. 2 on defendant no. 1. defendant no. 1 has also illegally and unauthorisedly sold aportion of the house bearing corporation no. 377 situate attanaji galli, angol, belgaum in favour of defendant no. 2. defendant no. 2 in turn has unauthorisedly sold r. s. no. 96measuring. 3 acs. 36 gs. And r. s. no. 18, measuring 1 ac. 15 gs. in favour of defendants 3 and 5 and they are not binding on theplaintiffs as the said transactions are null and void. Plaintiffs 2to 7 have got 3/4 share in the suit schedule properties. Thatthough they called upon defendant no. 96measuring. 3 acs. 36 gs. And r. s. no. 18, measuring 1 ac. 15 gs. in favour of defendants 3 and 5 and they are not binding on theplaintiffs as the said transactions are null and void. Plaintiffs 2to 7 have got 3/4 share in the suit schedule properties. Thatthough they called upon defendant no. 1 to effect partition andgive the share of the plaintiffs to them, he has been postponingand hence the plaintiffs have been constrained to file this suit. the defendants 1, 3 and 5 remained ex parte. The defendant no. 2 filed his written statement and during the pendency of the suithe died and his l. rs. D. 2-a to d. 2-c have come on record andthey have adopted the written statement filed by defendant no. 1. Defendant no. 6 came to be impleaded at a later stage. ( 4 ) THE defence taken by defendants 2, 4 and 6 is as follows:the plaintiffs have not included All the properties belongingto the joint family of the plaintiffs and defendant no. 1 andhence the suit is not maintainable. It is denied that the suitschedule properties are the joint family properties of theplaintiffs and defendant no. 1. The allegations of the plaintiffsthat the defendant no. 1 is addicted to vices and he issquandering the family properties and the alienations made byhim in favour of defendant no. 2 are not admitted. Defendantno. 1 was the natural brother of defendant no. 2. He went inadoption to kudchi family. He filed a suit for partition of hisshare in the properties of his adoptive family and for theprosecution of that suit he was in need of amount and heapproached defendant no. 2 for financial help and defendant no. 2 helped defendant no. 1 by giving him money. Defendant no. 1raised loan from the state bank of India, agricultural branch tomeet his domestic expenses from 1950 to 1971 and he was alsotaking financial help from defendant no. 2. So, he executed anagreement of sale in favour of defendant no. 2 on 10-7-1964agreeing to sell the properties of angol village and also ofbelgaum for Rs. 25,000/- and subsequently he executed a saledeed which is a valid sale deed. Since the plaintiffs have notsought for the cancellation of the sale deed, the suit is notmaintainable. The defendant no. 4 has purchased an area of13'-3" east-west and 100' north-south from defendant no. 2 on 10-7-1964agreeing to sell the properties of angol village and also ofbelgaum for Rs. 25,000/- and subsequently he executed a saledeed which is a valid sale deed. Since the plaintiffs have notsought for the cancellation of the sale deed, the suit is notmaintainable. The defendant no. 4 has purchased an area of13'-3" east-west and 100' north-south from defendant no. 1 inthe house property for a valuable consideration of Rs. 10,000/-and he has spent Rs. 15,000/- on the alterations andmodifications of that house after the purchase. Defendant no. 6purchased the land s. No. 5/1 to the extent of half, which bearsr. s. no. 5/1/a and measures 2000 sq. Metres i. e. 11 gunthas, 5annas 9 pies. The said land was belonging to one shri narendramalasarji patil and he has purchased the land from him afterdue enquiry. The plaintiffs though filed a similar suit, they didnot pursue it and it came to be dismissed. Defendant no. 1 wasowning some other lands also which he had not included in thesuit. On the basis of these contentions, the defendants prayed forthe dismissal of the suit. ( 5 ) THE trial court framed the following issues:1. Do plaintiffs prove that the suit properties are the jointfamily properties of themselves and defendant 1 and areavailable for partition?2. If so, what are the shares of the plaintiffs in the suitproperties?3. Do plaintiffs prove that the defendant 1 has illegallyand unauthorisedly sold away land r. s. no. 704/1,658/2, 5/1, 223/4, 659/3-a, 318 (western half portion)situate at angol and r. s. nos. 96/2 and 97/1 situate atbelgaum in favour of the defendant 2 and the said salesare without any consideration?4. Do plaintiffs prove that the defendant 1 has illegallyand unauthorisedly sold some portion of the house bearingcorporation no. 377 of tanaji galli, angol in favourof the defendant 4? 5. Do plaintiffs prove that the defendant 2 has illegallyand unauthorisedly sold away r. s. no. 96 measuring 3acres 36 gts. And r. s. no. 318 measuring 3 acres 3 guntasin favour of the defendants 3 and 5?6. Does defendant no. 2 prove that the alienation made bythe defendant 1 for legal necessities and were supportedwith consideration?7. Does defendant 4 prove that he is a bona fide purchaserfor value and has improved the purchased property?8. Is suit barred by limitation?9. Is suit for partition not maintainable without bringingall the properties in one hotch pot?10. Does defendant no. 2 prove that the alienation made bythe defendant 1 for legal necessities and were supportedwith consideration?7. Does defendant 4 prove that he is a bona fide purchaserfor value and has improved the purchased property?8. Is suit barred by limitation?9. Is suit for partition not maintainable without bringingall the properties in one hotch pot?10. Is suit bad for non-joinder of parties?11. What order or decree?12. Whether court-fee paid is proper? ( 6 ) THE trial court has negatived the contention of theplaintiffs that the suit properties are the joint family propertiesof themselves and defendant no. 1 and it has also held that thesuit properties are not the joint family properties at the time ofthe suit and they were not available for partition. It has alsoheld that the suit was not maintainable as the plaintiffs havenot put All the joint family properties into the hotch pot. ( 7 ) THE geneology of the family of plaintiff and defendant no. 1is as follows:tavanappa kudchismt. Gangawwa d/o tavanappa (died) adoptive mother_______________________________nemichand nirmala (wife) (adoptive son) (plff. No. 1)surekha prafullata sandhya pramila malasarji alkeshplff-2 plff.-3 plff.-4 plff.-5 plff.-6 plff.-7it is not disputed in this case that the plaintiff no. 1 is thewife of defendant no. 1 and other plaintiffs are thechildren of plaintiff no. 1 and defendant no. 1. Theevidence led by the plaintiff goes to show that plaintiffsand defendant no. 1 constitute a hindu joint family. It isnobody's case that there was any partition between theplaintiffs inter se or the plaintiff and defendant 1 at anytime. The very fact that defendant no. 2 purchased some ofthose properties from defendant no. 1 goes to show thatdefendant no. 1 has got some right in these properties. p. w. 1 has stated that suit properties belong to kudchifamily and the suit lands and suit house are their ancestralproperties. There is no effective cross-examination on thisaspect of the case. Ex. D. 2 is the report of the tahsildar,belgaum showing that the properties have come to the possessionof defendant no. 1 in execution of the decree in o. s. no. 79/51 and the suit lands are some of those lands. P. w. 1 has stated that the house is the ancestral house of kudchifamily. In view of the evidence of p. w. 1 read in thelight of ex. 1 in execution of the decree in o. s. no. 79/51 and the suit lands are some of those lands. P. w. 1 has stated that the house is the ancestral house of kudchifamily. In view of the evidence of p. w. 1 read in thelight of ex. D. 2 it will have to be held that the suitschedule properties are the joint family properties of plaintiffsand defendant no. 1. It is not disputed that defendantno. 2 was the natural brother of defendant no. 1. By ex. D. 6 defendant no. 1 has sold on 8-2-1971 some properties todefendant no. 2 for Rs. 2,000/ -. In the deed itself, somereference is made to the pre-existing loans incurred bydefendant no. 1. When there is a question of alienation ofcoparcenary property the following persons alone have gotpower to alienate the coparcenary so as to pass a good titleto the alienee: (1) the whole body of coparceners, where they are adults; (2) the manager to the extent as prescribed in law; (3) the father, subject to certain restrictions; (4) a sole surviving coparcener under certain circumstances. Section 256 of mulla's hindu law (sixteenth edition) makes it clear that a hindu father has got special powers of alienating coparcenary property which no other coparcener has got and in the exercise of those powers he can make a gift of ancestral moveable property or even of ancestral immoveable property to some extent and he can also sell or mortgage ancestral property whether moveable or immoveable including the interest of his sons, grandsons for the payment of his own debt provided the debt was antecedent debt and was not incurred for immoral or illegal purposes. In dharma shamrao agalawe v pandurang miragu agalawe and others, the Supreme Court has laid down as follows:"the joint family property does not cease to be joint family property when it passes to the hands of sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property. If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alienation cannot object to alienations made before he was begotten or adopted. "the sale deed executed by defendant no. 1 in favour of defendant no. 2 is on 8-2-1971. It is not disputed in this case, on 8-2-1971 plaintiff no. 6 malasargi and plaintiff no. 7 alkesh were not born. Therefore, on the date of ex. D. 6 defendant no. 1 was the sole surviving coparcener. If defendant no. 1 was the sole surviving coparcener of ex. D. 6, he will be having the right to alienate the suit schedule properties as the sole surviving coparcener even without any benefit to the family or for any legal necessity. But the appellants' counsel has tried to meet this situation by advancing argument that the evidence of p. w. 1 goes to show that plaintiff no. 6 was born in october, 1971. On the date of ex. But the appellants' counsel has tried to meet this situation by advancing argument that the evidence of p. w. 1 goes to show that plaintiff no. 6 was born in october, 1971. On the date of ex. D. 6 he was in the womb of p. w, 1 and as a coparcener existing in the womb of his mother at the time when the alienation was made by defendant no. 1 in favour of defendant no. 2, he will be having a right to challenge the alienation made by defendant no. 1 in favour of defendant no. 2. Section 309 in mulla's hindu law (sixteenth edition) reads as follows:"a son, who was in his mother's womb at the time of partition, is entitled to a share though born after partition, as if he was in existence at the time of partition. If no share is reserved for him at the time of partition, he is entitled to have the partition reopened and share allotted to him. "if a son who is in the womb of his mother is entitled to share at the time of partition, then certainly it follows that such a son is also having a right to challenge the alienation made by the father before his birth but at the time when he was in the womb of his mother. A ruling of the Supreme Court reported in dharma shamrao agalawe's case, referred to supra lays down that a sole surviving coparcener can alienate the joint family properties before the birth of a new coparcenary. But this point is not considered in that ruling as to whether a son in the womb of his mother can challenge the alienation made by his father when he was in the womb of his mother. This point is further clarified by section 270 of mulla's hindu law (sixteenth edition), which lays down as follows:"where an alienation is made by a coparcener in access 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. "according to the plaintiffs, the plaintiff no. 6 was in the womb of plaintiff no. 1 though not born on the date of ex. D. 6. Whereas according to the defendants he could not have been even in the womb of his mother on the date of ex. D. 6. In vol. Xxvii, Madras law journal 1914 at page 580 it is laid down that though there is a conclusive presumption that a child is born within 280 days after access has ceased is legitimate, there is no similar or any presumption that a particular child was conceived on 280th day before its birth. It is a matter for proof in each case as to when the conception took place and in the absence of evidence as to it, the party relying upon the fact of such conception must fail. Therefore, though that presumption is regarding the legitimacy of the child born within 280 days, if the access has ceased between his parents, the presumption does not extend as to when the child might have been conceived. It will have to be proved as a fact in each case and that burden of proof will be on the party asserting it. In this case, the burden of proof will be on the plaintiffs for proving it. After going through the judgment of the trial court we have seen that this very crucial aspect of the case has escaped the attention of the court and this is a point which has got a very relevant and far-reaching consequence on the rights of the parties in this case. If plaintiff no. 6 was conceived and in the womb of his mother on the date of ex. D. 6, he will be having a right to challenge the alienation made by his father under ex. D. 6. We are of the opinion that this matter requires to be considered by the trial court after giving an opportunity to both the sides to lead evidence in support of their contentions having a bearing on this aspect of the case. D. 6. We are of the opinion that this matter requires to be considered by the trial court after giving an opportunity to both the sides to lead evidence in support of their contentions having a bearing on this aspect of the case. In order to focus the attention of the parties specifically on this aspect of the case, we are framing the following issue for the decision of the trial court: whether the plaintiff no. 6 has got a right to challenge the alienation made by defendant no. 1 in favour of defendant no. 2 under ex. D. 6? ( 8 ) ANOTHER contention that is raised in this appeal is that though defendant no. 1 got possession of various properties under the execution of the decree in o. s. 79/51 All those properties are not put into the hotch pot in this suit for partition. The answer of the plaintiffs for this contention of the defendants is that the properties available to the family have been put into the family hotch pot and the other properties are not with the family as they have been regranted to the various tenants under the land reforms act. But, there is no evidence produced by the plaintiffs except by interested oral statement of p. w. 1 in her evidence. Since the matter is being remanded, we are of the opinion that both the sides should be given an opportunity to lead evidence on this aspect of the case. ( 9 ) FOR the reasons discussed above, the appeal is allowed. The judgment and decree of the trial court are set aside and the matter is remanded to the trial court to give an opportunity to both sides to lead evidence on the points referred to by this court in the. Judgment and thereafter dispose of the case according to law, in the interest of justice. No order as to costs. --- *** --- .