Starting point of limitation filing suit.

Judgment.:- The plaintiff in the suit out of which this second appeal arises lost before the trial Court but succeeded on appeal. The relevant facts are these:

2. The plaintiff obtained a decree against defendant 3 for over Rs. 9000 in the Dharwar Sub-Court in the State of Bombay and obtained an attachment before judgment of lands belonging to defendant 3 in Harvi of the Harpanahalli taluk of the district of Bellary. The attachment was ordered on 12-11-1936 and was actually effected on 2-12-1936. Defendant 3 on 4-11-1936, sold these lands to defendant 1 by a registered sale deed, Ex. p.2, for Rs. 600. Defendant 1, in his turn, sold them to defendant 2 under Ex. D-1, a registered sale deed, for Rs. 800 on 30-7-1942. Then the plaintiff filed the present suit for a declaration that the sale deeds Exs. P-2 and D-1 were void, nominal, fraudulent and not binding on him. The finding of both the Courts below is that the two alienations were brought about fraudulently to defeat, in anticipation, the attachment the plaintiff contemplated and further that in spite of these sale deeds defendant 3 continued to remain in possession and collected the rent.

3. The points taken before me for defendant 2 the appellant, are firstly that the suit was barred by limitation and secondly that the suit, not having been instituted by the plaintiff in a representative capacity as required by S. 53, T. P. Act, ought to have been dismissed and that the application for amendment filed before the learned District Judge on appeal ought to have been rejected.

4. On the second of the points, I think that there is absolutely no ground for me to interfere with the discretion exercised by the lower appellate Court in allowing the amendment of the plaint sought, On the first of the points it is argued that the view of the lower appellate Court, that time began to run for the suit not from the date of Ex. p. 2 but from the date of the plaintiffs knowledge of that transaction, which admittedly is within 3 years of the institution of the suit, is erroneous. The point, however, is covered by direct authority of this Court to be found in Madhavan Nair J.s view in the case reported in Narasimham v. Narayanarao, A. I. R. (13) 1926 Mad. 66: (92 I. C. 405), Venkatasubba Rao J, in that case even went further than Madhavan Nair J. and took the view that the starting point of limitation was the date on which the plaintiff decided to exercise his option of avoiding the transfer and not the date of the transfer. Whether the latter view is right or not it is unnecessary for me to decide, although I may say that a Bench of the Bombay High Court in Abdullakhan Daryakhan v. Purshottam, 49 Bom. L. R. 875; (A. I. R. (35) 1948 Bom. 265), disapproved of a view to this effect which was taken by Lokur J. in that Court. Even adopting the terminus a quo adopted by Madhavan Nair J., it is beyond doubt that the present suit is in time.

5. My attention has been drawn by the learned counsel for the respondent to the decision of the Privy Council in O. RM. O. M. SP. Firm v. Nagappa Chettiar, I.L.R. (1941) Mad. 175: (A. I. R. (28) 1941 P. C. 1), where Sir George Rankin delivering the judgment of the Judicial Committee of the Privy Council observed as follows:

"The claim against the appellant bank is not that a breach of trust was committed by it but that it took the trust property by a transaction with Subrahmaniam which was a breach of trust on his part and with notice that it was a breach of trust. Their Lordships are of opinion that Art. 36, Limitation Act, does not apply to the case and that it comes under Art. 120 which prescribes a period of six years from the time when the right to sue accrues. The question is whether time began to run from 10-2-1920 or from the date in 1929 when the plaintiff came to know that the money of the charities was set off against Subrihmaniams debt to the appellant bank upon his overdraft. The suit having been brought in 1933, it is necessary for the plaint