Judgement

Appeal from five decrees of the High Court (June 16, 1908), whereby a decree of the Subordinate Judge of Nuddea (November 28, 1898) was reversed so far as it granted any relief to the appellants, and their suit was dismissed with costs.

The questions decided in this appeal were whether the suit was barred by limitation.

The Subordinate Judge found that under the circumstances stated in their Lordships judgment there was no necessity for the widow granting the ijara in question, and held that the suit was governed by Act XV. of 1877, Sched, II., arts. 140 and 141, which provide twelve years limitation, and not by art. 91, which provides three years for a suit to cancel or set aside an instrument of the description in suit, calculated from the time when the facts entitling the plaintiff thereto became known to him.

The High Court held that, whether there was necessity for the ijara or not, it was at best only voidable, and that a suit to avoid it was, under the circumstances, barred by not having been brought within three years from the widows death. Its judgment on this point was as follows—

“In the present case it may be remembered that the defences of legal necessity and of election to treat the lease as valid, if substantiated, would shew that the lease could not be treated as ipso facto void. The plaintiffs evidently treat the lease as one that must be avoided by being set aside; and the question before us appears to resolve itself into this, whether they could obtain khas possession without having the lease set aside. If they could not, art. 91, and not art. 141, would seem to govern the case."

After holding that the lease must be set aside before the plaintiffs could recover possession, the judgment proceeded —

"It is contended, however, for the plaintiffs that art. 91 cannot apply, because the time from which the period begins to run is, when the facts entitling the plaintiffs to have the instrument cancelled or set aside become known to them. It has not been disputed that these facts were known to them on the death of the widow and probably long before, for the father (Annoda) of five of the reversioners, was himself one of the ijaradars, and his ijara interest passed under his will. But it is said that these facts might have become known to them during the life of the widow, in which case they would have had to bring their suit during her lifetime. If well founded, I scarcely see how this argument would assist the plaintiffs it would only mean that they were not necessarily entitled to three years from the death of the widow; but the argument does not appear to me to be sound, because the lease was perfectly good during the widows life, and the reversioners did not become entitled to have the instrument set aside until after her death, and her death is one of the elements which entitle them to have it set aside. In the case suggested, the plaintiffs might have proceeded under art. 125, which does not appear to clash, as has been suggested, with the view we take as to the applicability of art. 91. If a reversioner desire to set aside a deed executed by a Hindu widow, which is voidable as against him, the Legislature may well have thought that it was desirable that such suits should be brought within a much shorter period than that prescribed for the recovery of immovable property in ordinary cases."

De Gruyther, for the appellants, contended that art. 91 only applied where it was necessary to set aside some instrument before the property to which it related could .be recovered. It was unnecessary for the plaintiffs to set aside this ijara. It came to an end and ceased to be operative at the death of the widow, at which date the appellants became entitled as next heirs to the last full owner. Art, 141 was the applicable provision to a suit for possession such as this. Reference was made to Thakur Tirbhuwan Bahadur Singh v. Rameshar Baksh Singh (( 1906) L. R. 33 Ind. Ap. 156.); Janki Kunwar

v. Ajit Singh (( 1887