BHOGAVALLI VENKAYYA Vs. BHOGAVALLI RAMAKRISHNAMMA

JUDGEMENT

(1.) The Subordinate Judge was not entitled to find against the plaintiff that the purchase by him was nominal as such an issue was not raised at the trial.

(2.) He finds that the properties belonged originally to the grandfather of the first defendant and the father of defendants Nos. 2 and 3 who were brothers and members of a joint family. That being so, the title of the first defendant s grandfather must be held to exist unless it is shown that it came to an end by some means known to him. The facts found do not make out any such cessation of the title of the plaintiff s vendor.

(3.) It is, however, found that the first defendant s father had left the village about forty years before suit, and upon this, the question arises whether the suit of the plaintiff would not be barred. To a suit like this by the purchaser from a member of a joint family who is alleged to have been out of possession at the time of sale, Article 136 of the Limitation Act applies in terms and not Article 127 see Ram Lakhi v. Durga Charan Sen 11 C. 680 and Muthusami v. Ramakrishna 12 M. 292. It is, however, contended on behalf of the respondents that the possession contemplated in Article 136 is actual possession and not such possession as a member of a joint family is presumed to have in the family property until excluded therefrom. We are, however, unable to accept this contention, for, if it were well-founded, the result would be that while in a particular case the member of the family would be himself entitled to institute a suit to enforce his share in the family property if he had not been excluded from enjoyment thereof for twelve years, the right of a purchaser from that member would be barred under the same circumstances. We should refrain from putting a construction which would tend to such anomaly. We think, therefore, that the lower Appellate Court should submit a finding as to whether the plaintiff s vendor was ever excluded from the joint family property, and, if so, for what period before suit and we direct it accordingly.