KONDAJI BAGAJI DEOKAR Vs. DAGADU GAJABA DEOKAR

JUDGEMENT

(1.) This appeal arises from a suit brought by respondents Nos. 1 and 2, who are brothers and members of a Hindu joint family, to set aside the alienation of family property made during their minority by their mother as their guardian. The trial Court found that there was legal necessity for the sale in part. It overruled an objection on the ground of limitation and set aside the sale on terms, that is to say, the plaintiffs were directed to pay a certain sum of money into Court. On appeal, the District Judge confirmed the lower Court's decree, though he decided the point of limitation in favour of the plaintiffs on different grounds from those which appealed to the trial Court. The present second appeal is brought by defendant No. 3 in the suit who is a transferee from the original alienee.

(2.) The learned advocate who appears for him has contended in the first place that the lower Courts were wrong in setting aside the sale and that they ought to have held that the sale was justified fully by legal necessity. As to this part of the case, I think it is not necessary to say much. It appears to me that the lower Courts have really approached this matter from the wrong point of view. They have busied themselves with the question whether there were debts legally payable by the plaintiffs, and if so, how much they amounted to. The real question of course is whether the sale itself was necessary. As pointed out in Krishn Das v. Nathu Ram (1926) L.R. 54 I. A. 79 it was incumbent on the alienee to satisfy the Court that there was some pressure on the estate which made it necessary that this property should be sold or that at any rate he made reasonable inquiries and satisfied himself that this was so. There is no evidence of anything of the kind. In fact the findings of fact of the Court of first appeal at p. 4 of the print are directly against the appellant on that point. It has been held that no bona fide inquiry had been made at all and also that the conditions laid down by the Privy Council as necessary to support an alienation are not fulfilled in the present case. On this point, therefore, the decision of the lower Courts is right.

(3.) Then there is the question of limitation which is much more difficult. The cases of the two brothers have to be considered separately. Plaintiff No. 1, the elder brother, is found to have come of age in about January, 1921. The Art. of limitation applicable is Art. 44 under which the suit had to be brought within three years of his attaining majority. Prima facie then plaintiff No. 1 was bound to bring a suit before January, 1924. The present suit was filed on March 9, 1927. But on January 22, 1923, a suit No. 25 of that year was actually brought by plaintiff No. 1 for himself and as the guardian of his minor brother. It was for the same relief, viz., to set aside the sale-deed, and there was also a prayer for redeeming previous mortgages. The suit was dismissed in the District Court as it was held that it was not maintainable as framed. It was a suit under the Dekkhan Agriculturists Relief Act and under that Act a prayer for redemption could not be joined with a prayer for setting aside an alienation. That decision was upheld in second appeal by this Court on June 23, 1926. But this Court gave permission for the suit to be withdrawn and a fresh suit filed by the plaintiffs "if so advised." As I have stated, the present suit was filed thereafter on March 9, 1927. The time taken over suit No. 25 of 1923 was three years, five months, and one day, Adding that to the three years allowed by Art. 44, assuming that it can be added, the time available to plaintiff No. 1 would be six years, five months and one day and the present suit would be in time. The question is, however, whether the time taken over this other suit can be excluded under Section 14 of the Indian Limitation Act. The First Class Subordinate Judge who decided the first appeal held that it could, but, in my opinion, that decision cannot be maintained. The order of this Court permitting the plaintiffs to withdraw the suit with liberty to bring a fresh suit must be taken to have been an order made under Order XXIII, Rule 1, Civil Procedure Code, and indeed that rale was expressly referred to in the judgment. That being so, however, Order XXIII, Rule 2, shows that in the fresh suit which the plaintiffs proceeded to institute they must be bound by the law of limitation in the same manner as if the first suit had not been instituted. That is to say Section 14 of the Indian Limitation Act cannot apply. There is an authority of this Court directly in point, Varajlal V/s. Shomeshwar (1904) I.L.R. 29 Bom. 219 It appears from the judgment of this Court in Gulabsing Ukhaji V/s. Keshav Sadu (1926) Second Appeal No. 700 of 1925, decided by Marten C. J. and Percival J., on June 23, 1926 (Unrep.) that the learned Judges who decided it were under the impression that Section 14 would apply, but, as they say, the matter was not argued before them, and in view of the very clear language of Order XXIII, Rule 2, there can be no doubt, in my opinion, that plaintiff No. 1 is not entitled to the benefit of Section 14, and that so far as he is concerned, the suit must be barred.