Period of limitation applicable for filing suit by alienee.

Rajamannar, C.J.†-These two Second Appeals involve an interesting question of law as to what is the period of limitation applicable to a suit filed by an alienee fr®m a coparcener of an undivided share in joint family property for general partition. There is very little direct authority on the question. The appeals were originally heard by Krishnaswami Nayudu, J., who referred them for decision by a Division Bench of this Court. These two appeals arise out of two suits for partition, O.S. No. 47 of 1946 and O.S. No. 23 of 1945 in the Court of the Subordinate Judge of Chingleput filed in the following circumstances. The properties in suit belonged to a joint family. The following pedigree shows the relationship between members, of this family:-

Defendants 1 to 4 are the descendants of Varadaraja Mudali and form one branch. Defendants 5 to 7 are the descendants of Singaravelu Mudali and form the other branch of the family. The family became heavily indebted and several suits were filed by creditors for the recovery of amounts due to them. One of such suits (O.S. No 9 of 1916) was filed by one Arunachala Mudali in the District Court of Chingleput. The members of the family who were alive on the day were made parties. At about this time, the third son of Varadaraja Mudali, namely, Subbaraya Mudali, filed a suit for partition, O.S. No. 18 of 1916 in the same Court. To this suit, not only the members of the family, but also the creditors of the family were made parties, including Arunachala Mudali. A preliminary decree for partition was passed in the suit on 29th December, 1917. There was also a decree passed in Arunachala’s suit, O.S. No. 9 of 1916. There were appeals to the High Court, which were dismissed. No steps, however were taken in O.S. No. 18 of 1916 for the passing of a final decree and somehow or other, the suit appears to have been dismissed. In the meantime, Ratnavelu became an insolvent. The Official Receiver sold the share of Ratnavelu in items 1 to 8 of B schedule to Thani Chettiar, the plaintiff in O.S. No. 47 of 1916. Though the sale by public auction was held on 16th March, 1925, the sale deed was executed by the official receiver on 4th January, 1929. Arunachala proceeded to execute his decree in O.S. No. 9 of 1916 and brought to sale the half share in the properties set out in schedule B excluding items 1 to 9, that is, after excluding the half share of the insolvent Ratnavelu. The purchaser was Rajamanickam Chetty, the plaintiff in the other suit O.S. No. 23 of J945. The sale was held on 28th July, 1927; it was confirmed on 14th April, 1928 and a sale certificate was issued on 24th November, 1931. There appears to have been a sort of paper delivery through Court in March and 29th September, 1954. July, 1934. But it is common ground that neither Thani Chettiar nor Rajamanickam Chettiar ever got possession of the properties purchased by them. Both Thani Chetty and Rajamanickam Chetty joined together and filed O.S. No. 64 of 1935 in the Court of the Subordinate Judge of Chingleput on 4th November, 1935, for possession of the B schedule properties from the present defendants 1 to 7 and others. This curious procedure was adopted, evidently because the two purchasers claimed to have become co-owners of these properties, each one having purchased a half share in them. They made an allegation in the plaint in that suit that they together were entitled to enjoy the B schedule properties in common without a partition and they had agreed to do so. One of the pleas in defence was that the suit as framed was not maintainable. The learned Subordinate Judge decreed the suit. There was an appeal to the District Court. The learned District Judge allowed the appeal and dismissed the suit on the ground that the suit as one framed for possession of particular items of property was not maintainable and the only remedy was by way of a suit for general partition. The learned Judge also expressed the view that the one-third share in t

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