KUNWAR BAHADUR Vs. BINDRABAN

JUDGEMENT

(1.) This is a second appeal by a plaintiff whose suit for a declaration has been dismissed by the lower appellate Court as barred by limitation. Debi Das, father of the plaintiff, had two brothers, Jwala Prasad and Prag Das; they lived separately. Jwala Prasad died childless, leaving a widow, Musammat Rukmani. This lady, while in possession of the property of her late husband with a Hindu widow s estate, executed a deed of sale on the 12th of February, 1898, transferring to certain persons, who appear as defendants Nos. 1 and 2 in the case, a house which bad belonged to her late husband. By the present suit, instituted on the 11th of April, 1913, the plaintiff sought a declaration that this sale deed was ineffectual as against him and enforceable only during the life-time of Musammat Rukmani. He impleaded this lady as a defendant, and also his own father Debi Das, and his uncle Prag Das. Only the defendants vendees contested the suit, no appearance being entered by any of the others. Ordinarily the plaintiff would not be permitted to maintain such a suit, he not being the nearest reversioner to the estate of Jwala Prasad in the presence of his own father and uncle. The plaintiff accordingly pleaded that Prag Das had colluded with Musammat Rukmani and with the vendees at the time of the sale. With reference to Debi Das he pleaded that the latter had "long since. severed himself from all connection with mundane affairs and elected to reside in solitude in a certain garden." He claimed that a cause of action accrued to him on the 13th of February, 1910, the date on which a suit by his father or his uncle became barred by limitation under the provisions of Article 125 of the first schedule to the Indian Limitation Act (No. IX of 1908), and that his suit was within time under Article 120 of the same schedule. It may be noted that the plaintiff gave his own age as thirty years in June or July, 1913, so that he attained majority within three years of the execution of the sale-deed in question. There is therefore no question of any extension of the period of limitation on the ground of the plaintiff s minority.

(2.) The learned Subordinate Judge has found clear authority in certain decisions of the Madras High Court, referred to in his judgment, for the proposition that the plaintiff s cause of action accrued to him on the date of the execution of the sale- deed of the 12th of February, 1898, and that the period of limitation for the same is that provided by Article 120 of the Schedule to the Limitation Act. He has not therefore thought it necessary to examine in any detail the precise pleadings in this particular case. Yet these are sufficient in themselves to make the plaintiff s position a very difficult one, even if the propositions of law contended for on his behalf are correct. So far as his uncle Prag Das is concerned, the plaintiff s allegation that a cause of action accrued to him on the 13th of February, 1910, will not bear a moment s examination. He says that Prag Das colluded with the vendors and vendees at the time of his sale, so that he had his cause of action complete on that date, or at latest on the date on which the fact of Prag Das collusion became known to him. As regards the plaintiff s father the point may not be quite so clear, because the facts have not been gone into. A comparison of the plaint and the written statement certainly suggests that the parties intended to plead, and did in fact plead, that Debi Das withdrawal from all interest in worldly affairs took place prior to the execution of the contested sale-deed. The plaintiff uses the vague expression "long since," The defendants, while admitting the correctness of the paragraph in the plaint regarding Debi Das withdrawal from the world, pleaded that the deed in suit had been executed with the knowledge and information of and in consultation with "the plaintiff and his uncle Prag Das." The fact that in would have been useless for the vendees to attempt to obtain the consent of Debi Das was presupposed by the pleadings and the frame of the issues. If this fact be admitted, it seems clear that the plaintiff, on his own showing, had a complete cause of action the day on which he knew that Prag Das had wrongfully colluded with the vendor and vendees to execute the sale-deed in suit. Whether he had a valid cause of action is of course quite a different question and one as to which we express no opinion; it is enough to find that it was a cause of action which had become barred by time long before the institution of the present suit.

(3.) When the facts above noticed were brought out in the course of arguments before us a strong appeal was made to us not to decide the matter on these grounds without remitting issues to the courts below, the point taken being that neither of those courts had considered the question of limitation in this particular light. We are not disposed to remit issues. It cannot be said that such a question as the date of retirement of Debi Das from all interest in worldly affairs, or the precise nature of that retirement, was ever put in issue on the pleadings. The parties went to trial on the admission that this retirement took place so long ago that its precise date was quite immaterial, and practically also on the admission that this retirement was so effective and complete that Debi Das had put himself in such a position that he could not be expected to do anything to protect the interests of his son from the nefarious schemes of the other defendants.