NARAYANA NAICKEN Vs. VENKATASWAMI NAICKEN

JUDGEMENT

(1.) The plaintiff's suit is for a declaration that the decree and execution proceedings in O.S. No. 32 of 1907 are not binding upon him and that his share of the family property did not pass to the vendee under the Court-sale and for possession and incidental reliefs. The Subordinate Judge dismissed the suit as being barred by limitation. On appeal the District Judge of Coimbatore held that the plaintiff's suit was barred under Art. 12 of the Limitation Act as regards items 1 to 4, and that the suit was not barred in respect of item No. 5, and remanded the suit for trial of the issues relating to item No. 5. The plaintiff has preferred this second appeal.

(2.) The facts are, the plaintiff and the 2nd defendant are the sons of the 1 defendant. Items 1 to 4 were sold in execution of a money decree obtained against the 1 defendant in O.S. No. 327 of 1907 and were purchased by the 3 defendant who took delivery of them in August, 1908. The 5 item was sold by the 1 defendant to one Rangaswami Naicken by a registered sale-deed dated 2nd April, 1907 and defendants 8 to 10 who purchased it from Rangaswami Naicken have been in possession from 21 June, 1909. Neither the plaintiff nor the 2nd defendant were parties to O.S. No. 327 of 1907. The plaintiff attained majority recently and has brought this suit within 3 years after attaining majority. The question is whether his suit is barred by limitation. So far as item. 5 is concerned the suit is not bar-red by limitation as it has been brought within 3 years of the plaintiff attaining majority. It has been recently held in Jawahir Singh V/s. Udai Parkash (1925) I.L.R. 48 A 152 : 50 M.L.J. 344. (P C) that a suit brought by the son within three years of his attaining majority to avoid the sale effected by his father is not barred by limitation although the elder son attained his majority more than three years earlier and had taken no steps to question the alienation.

(3.) The question in this appeal is what is the article of the Limitation Act applicable to a suit brought by the son after attaining majority for setting aside the sale of his share in Court- auction in execution of a decree against the father.