The main legal point established in the judgment is the determination of the starting point for limitation in suits under Section 53 of the Transfer of Property Act, with differing interpretations provided by the judges.

Venkatasubba Rao, J.

1. The question to be decided in this appeal is one of limitation. This suit was filed under Section 53 of the Transfer of Property Act. The plaintiff, being the Receiver in insolvency represents the body of creditors of the insolvent. The transaction impeached is a mortgage, dated 27th July 1908, executed by the insolvent in favour of the defendant. The suit was filed on the 15th of February 1918.

2. The first question that arises is what is the Article that is applicable? Article 120 seems to be the appropriate Article. The decisions seem to be to the same effect: see Authikesavaloo Naicker v. Shalt Abdulla 29 Ind. Cas. 62 : 2 L.W. 479 : (1915) M.W.N 337 and Venkateswara Aiyar v. Somasundram Chettiar 44 Ind. Cas. 551 : 7 L.W. 280 : (1918) M.W.N. 244. It was conceded before us, and, in my opinion, rightly that the Article applicable is Article 120. The more difficult question, however, is what is the starting point of limitation? On this point, there is no authority. Phillips, J., in Venkateswara Aiyar v. Somasundram Chettiar 44 Ind. Cas. 551 : 7 L.W. 280 : (1918) M.W.N. 244 expressed the view that the time runs from the date when the plaintiff had knowledge of the facts entitling him to relief. This though an obiter dictum is entitled to great weight as the point was fully considered by him. Krishnan, J , in the judgment under appeal, as I understand it, is not quite definite on the point. He thinks that limitation runs from the date when the creditor exercises his option; in the alternative from the date when he has knowledge of the facts that give him a right to relief. As I read his judgment he is more inclined to take the former than the latter view. It seems to me that he expressed the alternative view, as on the facts, whichever view was taken the same result followed. Krishnan, J., having held that the suit was filed in time, the defendant has filed this appeal and Mr. Jagannadha Das has argued the case very fully on his behalf. His contention is that the date of alienation gives the starting point. He supports his contention by relying on what I may describe as grounds of convenience. Before adverting to these grounds, I shall deal with the point with reference to the two provisions of law that have a bearing, viz.... Section 53 of the Transfer of Property Act and Article 120 of the Limitation Act. Under Section 53 a transfer that offends against the rule enacted in it is voidable at the option of any person defrauded, defeated or delayed. Under Article 120 the suit may be brought within six years of the date when the right to sue accrues. The question resolves itself into this. When does the light to sue accrues? If the transaction is voidable at the option of a creditor he may avoid it at any time at his pleasure. Section 53 does not say that, after the lapse of a certain time, he shall not be able to avoid the transaction. It does not prescribe a limit of time. What then constitutes the exercise of the option? In the words of Wallis, C.J. In Ramaswami Chettiar v. Mallappa Reddiar 59 Ind Cas 917 : 43 M 760 : (1920) M.W.N. 572 39 M.L.J. 350, 28 M.L.T. 173, 12 L.W. 475 a voidable transaction may be avoided by any open and unequivocal declaration of an intention to avoid it, see page 769 Page of 43 M.--[Ed.]. The right to sue accrues when this option is exercised. Under Article 120 the suit may be instituted within six years from the date when the right to sue accrues. As that , right accrues, as I have shown, when the plaintiff exercises his option, the suit may be filed within six years from the date of the exercise of the option. The proper construction of the sections compels us to take this view and it seems to me that this is what Krishnan, J., intended to hold. If so, I entirely agree with him.

3. The alternative view, namely, that time begins to run from the date when the plaintiff becomes aware of the facts that entitle him to relief found favour with Phillips, J., in Venkateswara Ai