MANDELA NARASIMHASWAMI Vs. MAMIDI CHINA VENKATA SIVAYYA

JUDGEMENT

(1.) This case has been referred to a Bench by our learned brother Bhimasankaram, J., because he felt that the case raised an important and difficult question of law of limitation. One Mamidi China Venkata Siviah purchased the undivided share to which defendants 2 to 5 in the suit were entitled at a court-auction held on 2/12/1936, in execution of a decree passed by the Court of Small Causes. This sale was confirmed on 23rd February, 19S7. Later on, on 5-3-1939 the purchaser Sivaiah sold the right he had purchased to one Prakasalingam and this purchaser, it is stated, obtained symbolic delivery of the undivided share on 6-11-1939. But it happened that subsequently the same Sivaiah obtained a reconveyance of the right from Prakasalingam on 11-4-1945.

(2.) Sivaiah brought the present suit on 16/10/1951, for partition and separate possession of the 4/5th share in the joint family properties. The suit was filed against the other coparceners and alienees from some of the coparceners. The suit was filed for a general partition. The defendants contended that the suit was barred by limitation. They relied upon Article 144 of the Limitation Act and urged that the possession of the alienee namely defendants 2 to 5 became adverse to the plaintiff from 21-12-1936, the date on which there was a sale in favour of Sivaiah and as such the suit filed in 1951 was beyond time. It was further urged that the date of the alleged symbolic delivery which was on 6-11-1939, could not give a fresh starting point of limitation. The trial court held the question of limitation in favour of the plaintiff and decreed the suit and passed a preliminary decree for partition. The defendants have come up in appeal.

(3.) With regard to the question as to the period of limitation for a suit by a purchaser of an undivided share of a coparcener in the joint family property, different views have been taken. The Bombay High Court held tEat the appropriate Article in a case of this kind was Article 120 of the Limitation Act while the Madras High Court took the view that the suit by such purchaser could be regarded only as a suit for partition and separate possession and as such was governed by Article 144 of the Limitation Act. The learned Judge. Bhimasankaram, J., was of the opinion that much could be said in favour of the view taken by the learned Judges of the Bombay High Court and inasmuch as there was no authoritative pronouncement of this Court in this regard, he preferred to refer the case to a Bench.