Judgement

Appeal (No. 24 of 1923) from a decree of the Court of the Judicial Commissioner (July 18, 1921) affirming a decree of the Subordinate Judge of Bahraich (March 22, 1921).

The appellants and their father (respondent No. 6) formed a joint Hindu family governed by the Mitakshara. The suit was brought by the appellants on June 23, 1920, to set aside a sale, made by their father on June 3, 1893, of an ancestral village; they alleged that the sale was made without necessity. The respondent-defendants Nos. 2 to 5 were descendants of the purchaser, who with them had been in possession since the date of the sale.

The defendants, while denying the facts alleged, pleaded that the suit was barred by limitation.

82 Law. Rep. 52 Ind. App. 69 ( 1924- 1925)

Ranodip Singh V. Parmeshwar Pershad 183

The plaintiff-appellants Nos. 1 and 2 were born before the date of the sale, but Nos. 3 and 4 were born later—namely, No. 3 in 1897 and No. 4 in 1900.

By the Indian Limitation Act, 1908, Sch. I., art. 126, the period of limitation for a suit by a Hindu to set aside his fathers alienation of ancestral property is twelve years, which run from the date when the alienee takes possession of the property.

Both Courts in India held that the suit was barred by limitation.

1924. Oct. 27. Dube for the appellants. Having regard to ss. 6 and 7 of the Indian Limitation Act, 1908, the suit was brought within time so far as plaintiff No. 4 was concerned; no valid discharge could be given by the other plaintiffs Zamir Hasan v. Sundar (( 1899) I. L. R. 22 A. 199.), following Govindram v.Tatia (( 1895) I. L. R. 20 B. 383.) ; Ganga Dayal v. Manx Ram (( 1908) I. L. R. 31 A. 156.),differing from Vigneshwara v. Bapayya. (( 1893) I. L. R. 16 M. 436.) The cases cited were decided under the Limitation Act, 1877, in which s. 8 corresponds with s. 7 in the Act of 1908. The elder brothers could not ratify their fathers alienation so as to affect the rights of plaintiff No. 4 Kandasami Asari v. Somaskanda Ela Nidhi. (( 1910) I. L. R. 35 M. 177.) No suit was necessary to set aside the sale; the suit should be regarded as one for possession governed by art. 144. The decision in Ram Tewary v. Luchmun Pershad (( 1867) 8 Suth. W. R. 15.) relied on below was under the Limitation Act of 1859 and was therefore not applicable. So far as it was held in that case that no new cause of action arose upon the birth of another member of the joint family, it was erroneously decided. [Reference on that point was made to Ramkishore Kedarnath v. Jainarayan Ramrachhpal (( 1913) L.

R. 40 I. A. 213, 221.) ; Venkata Row v. Tuljaram Row (( 1921) L. R. 49 I. A. 91, 98.); and Maynes Hindu Law, para. 342.]

The respondents did not appear.

Nov. 17. The judgment of their Lordships was delivered by

SIR LAWRENCE JENKINS. This is an appeal from a decree dated July 18, 1921, of the Court of the Judicial Commissioner of Oudh, affirming a decree dated March 22, 1921, of the Subordinate Judge of Bahraich.

The suit out of which the appeal arises was instituted on June 23, 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 are a joint Hindu family governed by the law of the Mitakshara, and it is the plaintiffs case that the village is the ancestral property of the joint family.

On June 3, 1893, the plaintiffs father purported to sell the village to Manjee Ram, who is represented in this suit by his descendants, defendants Nos. 1 to 5. The seventh defendant claims as a mortgagee from defendants Nos. 1, 2 and 5.

The plaintiffs contend that the sale is not binding on them, as it was not made for legal necessity, and on this ground they claim a decree for possession.

Of the many issues framed in the Court of the Subordinate Judge it is only necessary to consider whether the suit is barred by limitation, and for this purpose the dates at which the several plaintiffs were born become important.

Ranodip Singh,