NATHU AND ORS. Vs. DHANI RAM AND ORS.

JUDGEMENT

(1.) THIS regular second appeal airs out of a suit for declaration. On 9 -6 -95 Sarwan Dass adopted son of Ganga Ram sold his hen's share out of 164 big has and 2 bis was of land for Rs. 10,000/ - in favour of Dhani Ram and Middu Mai Defendants -Respondents. On 20 -8 -2001 Nathu I Ram and Benarsi Dass sons of the vendor Sarwan' Dass along with Tarsaim Lal and Piare Lal son of Bachana Ram who are collaterals of the vendor instituted the present suit for declaration on the allegations that they constituted a joint Hindu family along with the vendor, and that the property being ancestral could not be alienated without any legal necessity or for the benefit of the family. The Plaintiffs, therefore, prayed that the sale dated 9 -6 -95, be declared null and void and ineffective against their interests. The Defendants -Respondents resisted the suit on various grounds. They pleaded that the suit was barred by time, - the property in dispute was self -acquired of the vendor and that there existed legal nasty for the sale. The trial Court framed five Isis sues. The Court found that the suit was bare by time, the property was non -ancestral qua the Plaintiffs and that there" was no legal necessity for sale. The trial Court, therefore, dismissed the suit. The Plaintiffs appealed to the District Judge who confirmed the finding of the trial Court. The Plaintiffs have now come up in second appeal to this Court.

(2.) IN my opinion this appeal must fail on the question of limitation alone. It is urged by Mr. Jagan Nath learned Counsel for the Appellants that the courts below have wrongly applied Article 120, Limitation Act. The proper Article to apply, according to the contention of the counsel, was Article 126 of the Act. This Article provides a limitation period of 12 years for a suit toy a Hindu governed by Mitakshara Law to set aside his father's alienation of ancestral property. The period is calculated from "when the alienee takes possession of the property" it is conceded before me that the possession of ' the property in dispute never passed to the alienees. The counsel, however, contends that Article 128 will apply even though the alienee did not get possession of the property in dispute. I cannot persuade myself to accept the contention. Article 126 is based on the principle that the son's knowledge regarding the alienation made by his father would ordinarily arise when he sees the vendee in possession. Another reason for this appears to be that the cause of action for the Plaintiff to question such alienation arises only when alienee takes the possession. It is only then that there is an invasion of the rights of the sons in the enjoyment of the family property. But where the vendee never gets the possession no limitation can arise under this Article. In cases where the possession has not passed to the alienee the right of the son will amount merely to obtain declaration invalidating the sale deed. In this case indeed such a declaration is sought by the Plaintiffs. The Article applicable in such a suit would be Article 120, Limitation Act which prescribes a period of six years' "when the right to sue accrues". On the other hand Article 126 of Act will apply to a suit in which possession is claimed and will not apply to a mere declaration. In the present case two of the Appellants are not even the sons of the vendor. To attract the application of this Article the Plaintiff must be a son of the person who alienated the property. It is conceded before me by be counsel for the Appellants that Article 126 will not apply to their case. In my judgment there is no force in the contention raised by the Appellants' counsel.