Judgement

Appeal from a judgment and decree of the Court of the Judicial Commissioner (May 12, 1915) reversing a decree of the Subordinate Judge of Gonda.

The facts appear from the judgment of their Lordships.

June 13. De Gruyther K.C. and Dube for the appellant. The respondents did not appear.

July 16. The judgment of their Lordships was delivered by

LORD PHILLIMORE. The appellant is the plaintiff in this action, which was brought by him on January 2, 1913, against the present respondents and others to recover certain shares in the village of Ferozpur which had been conveyed by his father to Kali Pershad, the ancestor of the present respondents, by three deeds of sale dated April 20, 1889, January 6, 1892, and April 13, 1894. By the first a two-anna share was conveyed for Rs.4000, by the second a one-anna share for Rs. 2000, and by the third a like share for a like amount.

The defence was that as to the first sale it could not be attacked by the plaintiff, as he, according to his own case, was not born at the time, and his father was the sole proprietor, not being joint in family, and could deal with the estate as he thought fit; that as to all of the sales there was necessity for them, and that the money was not raised for immoral purposes. Further, there was a plea of the Indian Limitation Act.

The point as to this plea turns upon these facts. The period for attacking such a sale in ordinary cases is fixed by art. 126 of the Indian Limitation Act at twelve years. But by s. 7, " If a person entitled to institute a suit or make an application be, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased as would otherwise have been allowed from the time prescribed therefor in the third column of the second schedule hereto annexed." The time pre scribed is three years. The plaintiffs case is that he was born on January 4, 1892. He would come of age at eighteen, and then he would have three years, which would take him to January 4, 1913. The case for the defendants was that the plaintiff was at least twenty-eight.

The Subordinate Judge decided for the plaintiff on all points. He held that there was no necessity for any of the sales ; that the money raised by them was used for immoral purposes; that, as regards the first sale, the plaintiff could attack it though he was not born at the time, because his father was not separate in family but joint with his own brother and apparently other relatives, and because " the alienation made by one member of the coparcenary body can be objected to by another member born subsequently." He found that the plaintiff was born on January 6, 1892, and had therefore instituted his suit in time to save it from being barred.

On appeal the judges of the Court of the Judicial Commissioner of Oudh took a different view. The judges found that the plaintiffs father was separate in family at the time when the first sale was made, which rendered it unnecessary to decide upon the proposition of law upon which the Subordinate Judge had acted. As to the second and third sales, they were of opinion that certain sums, to wit, Rs.1622, of the moneys received on the second sale, and Rs.153.12 of the moneys received on the third sale, were applied in payment of antecedent debts, and that to this extent the sales could be supported, but to no greater extent. They found, however, that the plaintiff had not established "that he attained majority within three years before suit," and therefore they dismissed his suit. Hence this appeal.

Their Lordships will deal first with the point as to the plaintiffs age. As the appeal was heard ex parte the evidence on this matter was reviewed at the Bar with minuteness and care. There were three witnesses whom the Subordinate Judge saw and upon whose evidence he relied. The first was Shiva Lal. He was the family priest. He said that on