RAM DEO KURMI Vs. RAM RATHI

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit brought by him against the defendants-respondents for a declaration that the sale deed, dated 11 April 1910, executed by Bisheshar Kurmi in favour of Narain Kurmi, father of defendant- respondent No. 1, was invalid. The plaintiff is the grandson of Bisbeshar Kurmi. Bisheshar Kurmi had two sons, Budhu and Sidhu living with him at the time of the sale deed. Ramdeo, plaintiff-appellant, was born sometime in 1919, long after the sale deed. The plaintiff's case was that the sale was mot for any valid necessity and was invalid. Defendant 1 contended that the sale was for valid necessity, that the plaintiff had no right of suit and that the suit was time-barred. The trial Court found that out of the consideration of Rs. 100, only Rs. 10 were paid for a legal necessity, but it dismissed the suit on the ground that the plaintiff having not been born on the date of the sale was not competent to challenge it. On appeal, the Additional Subordinate Judge found that the plaintiff had a right to challenge the alienation but the suit was time-barred. He dismissed the suit. Against this decision this appeal has been filed. The points for consideration are whether the plaintiff had a right of suit and is his suit within time. There can be no doubt that, if at the time of an alienation there is no son, a son who is born subsequently to the alienation cannot challenge it. An alienation of joint family property made by a father, there being no male issue in existence at the date of the alienation, is valid though made without legal necessity. Such an alienation cannot be objected to by a son born after the date of alienation on the ground that it was made without legal necessity. But an alienation made by a father who has sons then living, the alienation not being one for legal necessity or for payment of an antecedent debt is, invalid, if made without their consent. Such an alienation may be set aside not only at the instance of those sons but at the instance of any son born after the date of alienation unless it was ratified by them before this birth.

(2.) In this case it has not been shown that the alienation in suit had been ratified by Budhu and Sidhu before the birth of the plaintiff. The plaintiff therefore had a right to challenge the alienation.

(3.) The cause of action in a suit to set aside the father's alienation arises when the alienee takes possession of the property. The period of twelve years is therefore to be counted from that date. That is the material date not only as regards the suit of a son in existence at that date, but also the suit of a son not in existence at that date. The subsequent birth of the latter does not create a fresh cause of action, or a new starting point from which limitation should be reckoned. In Ranodip Singh V/s. Parmoahwar Prasad 1925 P.C. 33 four sons of a Hindu who with him formed a joint family governed by the Mitakshara, sued in 1920 to recover possession of an ancestral village which had been sold by their father in 1893.