RAJAGOPALA AYYANGAR Vs. SRINIVASA RAGHAVA AYYANGAR

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiffs who are the sons of defendant 1 for partition and for setting aside the alienations made by the father, defendant 1.

(2.) The case of the plaintiffs was that they and defendant 1 were members of an undivided Hindu family and that the father, defendant 1, made certain alienations which they impeach as not binding on them for the reasons given in the plaint. Several issues were raised. It is only necessary to consider issues 5 and 6. The Subordinate Judge dismissed the suit on the preliminary point that the suit was barred by limitation because defendant 25, the elder brother of the plaintiffs, who was a major did not contest the alienations within the period of limitation prescribed by the Limitation Act and that consequently the plaintiffs who were his brothers were barred, even though the suit was brought within three years after plaintiff 1 attained majority and even though plaintiffs 2, 3 and 4 are still minors. The Subordinate Judge relies upon the decision in Doraiswami Serumadan V/s. Nondisami Saluvan [1915] 38 Mad. 118 as clear authority for the position that the suit is barred. He also relies on a subsequent case, Surapa Raju V/s. Venkayya [1915] M.W.N. 908.

(3.) It is contended for the appellant that the suit is not barrel by limitation as the alienations were by the father who was alive at the date of the suit and who was the managing member and it was not competent for defendant 25 to give a valid discharge or make the alienations binding on the plaintiffs. We think the present case is clearly within the ruling of the Privy Council in Jawahir Singh V/s. Udai Parkash A.I.R. 1926 P.C. 16. In that case a Hindu father had sold certain properties and a suit was brought by his younger son within three years of his attaining majority though the elder son had attained majority more than three years earlier and had allowed his claim to set aside the alienations to become barred. Their Lordships of the Privy Council held that the suit brought by the younger son within three years of attaining majority was not barred by limitation. It appears from p. 154 of the judgment that the High Court of Allahabad against whose judgment this present appeal was before the Privy Council relied on the decisions of Ganga Dayal V/s. Mani Ram [1909] 31 All. 156. and differed from the view taken by the Madras High Court in Vigneswara Vs. Bapayya [1893] 16 Mad. 436 and in Doraiswami V/s. Nondisami [1915] 38 Mad. 118. Their Lordships of the Privy Council observe as follows: On appeal to the High Court the learned Judges overruled the plea of limitation. They relied on the decisions of their own Court (Ganga Dayal V/s. Mani Ram [1909] 31 All. 156 and in a later case) and differing from the view taken by the Madras High Court in Vigneswara V/s. Bapayya [1893] 16 Mad. 436 and Doraiswami V/s. Nondisami [1915] 38 Mad. 118 on which the Subordinate Judge has rested his judgment they held that the conduct of Fatah Singh, the eldest brother, did not affect the undoubted rights of the plaintiffs.