SANKET NARAIN PANDE Vs. RAM BHAROS

JUDGEMENT

(1.) The question before this Court is one of pure law.

(2.) The suit out of which this appeal arose was brought by an after born son to set aside his father's alienation. The alienation took place on the 22nd of April 1901. At that date the plaintiff was not alive. He had, however, a brother living, who was a minor then. The suit was brought on the 23 of August 1922.

(3.) The Court below dismissed the suit on the ground that as Art. 126 of the Limitation Act applied to the suit, on the expiry of 12 years from the date on which the alienee took possession of the property, the right of suit became extinguished. This is the view which I myself took though not in this Court. Art. 126 is specially applicable to a suit like this. The plaintiff is a Hindu governed by the law of Mitakshara and his suit is to set aside his father's alienation of ancestral property. The period within which such a suit must be brought is 12 years and the time from which the period begins to run is the date on which an alienee takes possession of the property. In this case the date of alienation and the date on which the alienee took possession are one and identical. It is not suggested anywhere that these two dates are different. A special rule of law being in existence, no other Art. than Art. 126 can be applied. Section 6 of the Limitation Act has no application. Limitation began to run before the plaintiff's birth and his birth did not give a fresh start to limitation. The view taken by the Court below and taken by me was also taken by two Judges of the Oudh Court in the case of Chokhey Singh V/s. Hardeo Singh 64 Ind. Cas. 757 : 24 O.C. 330 : 8 O.L.J. 667 : 4 U.P.L.R. (O.) 10.