MUKHTYAR MOHAMMAD Vs. SAKHARAM

JUDGEMENT

(1.) THE defendant has preferred this second appeal.

(2.) THE plaintiffs' father held Khasra No. 162, area 16. 66 acres, in occupancy rights. He transferred the field to the defendant for a consideration of Rs. 7000 under a registered sale-deed dated 25-6-1948 The plaintiffs filed the suit on 11-4-1962 challenging the alienation by their father and for possession of the property on the ground that the sale was not binding on them, it not being for legal necessity or for satisfying the antecedent debts of the father, or for the benefit of the estate. It was also urged that the antecedent debts, if any, were incurred by the father for immoral purposes and, as such, they were not binding on the sons. The plaintiffs claimed 4/5th share in the property. Till the date of the alienation the plaintiffs 2 to 4 were not born ; as such, alienation to the extent of one-half share alone could be challenged. This position is no longer in dispute.

(3.) THE defence was that the sale was valid, as it was for legal necessity, for payment of antecedent debts, as well as for benefit of the estate. It was s. A. . No. 64 of 1965 decided on 4-8-1969 (Jabalpur) from decree passed on 7-10-1964 by shri B. B. L. Shrivastava, Additional District Judge, East Nimar, Khandwa in C. A. No. 3-A of 1964 modifying the decree passed on 19-10-63 by Shri K. P. Chaturvedi, Civil Judge, Class I, burhanpur, in C. S. No. 44-A of 1962. also urged that the suit was barred by limitation. Under the Limitation Act (since repealed) such a suit was governed by Article 126 which prescribed a limitation of 12 years and under that Article the suit is within limitation. It was, however, pleaded by the defendant that the property in suit being an occupancy holding, the special period of limitation prescribed under Article 1 of the Second Schedule of the C. P. Tenancy Act applied and as the suit was not filed within three years prescribed under that article, the plaintiffs had lost their right of challenging the alienation. It was also urged that under section 104 of the C. P. Tenancy Act, the plaintiffs were not entitled to rely on sections 6 and 7 of the Limitation Act as those sections were specifically excluded in their application to the suits under Article 1 of the Second Schedule.