JIVAJI KESHAV BAPAT Vs. VENKATESH KRISHNA BYADGI

JUDGEMENT

(1.) THE only question, which, in these three appeals, one (No.332 of 1936) from a decree of the First Class Subordinate Judge of Belgaurn, the second and the third (Nos. 402 and 403 of 1937) from the appellate decrees passed by the District Judge of Belgaum, was dealt with in the Courts below and which arises for consideration before us, is whether a suit by a Hindu to set aside an alienation of the joint family property made before his birth by his grandfather without any justifying cause is barred by limitation, if instituted more than twelve years after the date of the alienation. THE facts which raise that question can be shortly stated.

(2.) THE appellants-plaintiffs were members of a joint Hindu family governed by the Mitakshara law. THEir grandfather Nagesh, who was along with his sons Keshav and Yeshvant in possession of the joint family property, effected sales of distinct parcels of that property to different individuals including the respondents in these appeals between 1909 and 1910. THE plaintiffs, who are the sons of Keshav, were not born at the date of the alienations. THE first plaintiff was bora in 1913, and the second plaintiff in 1914. THEir father Keshav died in 1916, and their uncle Yeshvant, who was childless, died in 1921. It may be noted that during the lifetime of Yeshvant and Keshav they did not impeach the alienations in so far as they affected their interests in the joint family property. THE alienees were in peaceful possession of the property sold to them till the date of the suits from which these appeals arise and which were all filed on the same day, namely, June 5, 1934. It is common ground that these suits were well within three years of the plaintiffs attaining majority.

(3.) IN the consideration of the question of limitation it seems to have been assumed in the Courts below that the sales were not binding on the coparceners of the alienor, including his sons. That assumption is also involved in the question raised here on the basis of the issue framed and decided in the trial Court. Dealing with the question as to the applicability of Article 126, I might at once say that it would be wrong in the construction of the Article to draw an analogy from the doctrine of representation in Hindu law or the doctrine of pious obligation of a son or a grandson to discharge the father's or grand-father's debt. It may be true that in the consideration of that obligation a son would include a grandson. But the inclusion of the grandson in the term ' son' is the result of the interpretation of the texts, particularly of Brihaspati (see Colebrooke, Vol. I, Chap. V, page 185, cited by Sir Dinshah Mulla, in The Principles of Hindu Law, 8th Edition, page 337 ). Consequently no general doctrine could be laid down that for all purposes, particularly in the interpretation of the articles in the INdian Limitation Act relating to Hindus the term ' son' could be regarded as implying a grandson. We were referred by Mr. Gumaste for the respondent to Masit Ullah v. Damodar Prasad (1926) L. R. 53 I. A. 204 : S. C. 28 Bom. L. R. 1402 as an authority for the view that the term ' son' in Article 126 as in the compound ' putra pautradi' is indicative of a class and not of an individual alone. Their Lordships in that case were dealing with the texts on Hindu law in reference to the question as to the liability of the great-grandson under that law for the payment of the great-grandfather's debts in proportion to their relative shares in the joint family property. It is erroneous in my opinion to draw an analogy from the interpretation of those texts and to argue that the Legislature perhaps had in mind the doctrine of representation in Hindu law when enacting Article 126. The Legislature has omitted all reference to a grandson in Article 126. That omission may appear curious for there is no assignable reason for differentiating between the rights of a son to question his father's alienation and those of a remoter descendant in regard to his ancestor's transaction. Whatever that may be, Article 126 must be subject to the rule of strict construction, and I think, therefore, that article can have no application to this case.