SHEONANDAN PRASAD Vs. MTTAHIRAN BIBI

JUDGEMENT

(1.) This is an appeal against the judgment of a learned single Judge of this Court, and the question on which decision was given by that learned Judge was one of limitation alone. It appears that there was a family of which one Sital was the father. His wife was Mt. Sumari, and his three sons wore Debi Prasad, Nandan and Sheonandan. After the death of Sital two transfers were executed by way of sale, one in 1908 and the other in 1909. By these documents Debi Prasad and the mother Sumari (Nandan and Sheonandan being minors) purported to transfer certain portions of the family property. This suit was instituted by Sheonandan to set aside the alienation and to recover the property, in 1923. It has been found, among other matters, that at the date of the suit Sheonandan was less than 21, but his elder brother Nandan, who was not one of the vendors, was more than 21. The suit has been dismissed on several grounds, one being that Nandan could give a valid discharge as the head of a joint Hindu family, and therefore limitation began to run against both Nandan aud Sheonandan, and it expired when Nandan was 21 years of age. Reliance was placed on Section 7 Lim. Act and certain rulings of this Court and other Courts.

(2.) In our opinion, there are two answers to the contention that the suit is time barred. Firstly, the suit fall within Art. 44, Sch. 1, Lim. Act, it being a suit by a ward, who has attained majority to set aside the transfer of property by his guardian, viz., the mother. The period of limitation is three years and begins so run from the date "when the ward attained majority." As Sheonandan was one of the wards of the mother Sumari, prima facie, he should have, in his own right, a period of three years from the date of his attaining majority for the institution of a suit like the present one.

(3.) The second ground on which the plea of limitation ought not to have been allowed to succeed is this. In a joint Hindu family every member, ordinarily, claims for himself. When a father alienates property, everyone of the sons has a right to impeach the transfer, if it is not binding on the family. It is an individual right and is enjoyed severally by each of the joint members of the family. Section 7, Lim. Act, applies where any suit has to be brought "jointly" by several persons. A suit by one of several sons of a Hindu father who has transferred the property, would be maintainable, without the other sons joining in the suit. It cannot therefore be said that the right to sue is claimed "jointly" by the several sons of a father, who alienated the joint Hindu family property. Further the use of the words "a discharge can be given without concurrence of such person" indicate that the section is applicable to cases like a debt where the question of discharge may arise. Here there is no question of discharge. The mother, on behalf of the minors and the eldest brother, alienated the property. If the head of the family (Debi Prasad at the time) could give a discharge within the meaning of Section 7, Lim. Act, no suit whatever could lie at the instance of the younger brothers of Debi Prasad. We are of opinion that no question of giving a discharge arises in the present case.