RAJAGOPALA AYYENGAR Vs. SRINIVASARAGAVA AYYENGAR

JUDGEMENT

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

(2.) The case of the plaintiffs was that they and the 1 defendant were members of an undivided Hindu family and that the father, the 1 defendant, 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 No. 5 and 6. The Subordinate Judge dismissed the suit on the preliminary point that the suit was barred by limitation, because the 25th defendant, 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 the 1 plaintiff attained majority and even though plaintiffs Nos. 2, 3 and 4 are still minors. The Subordinate Judge relies upon the decision in Doraiswami Sirumadan v. Nondisami Saluvan 21 Ind. Cas. 410 : 38 M. 118 : 25 M.L.J. 425 : 14 M.L.T. 401 as clear authority for the position that the suit is barred. He also relies on a subsequent case, Gottukula Surapa Raju V/s. Gottumkkula Venkayya 32 Ind. Cas. 802 : (1915) M.W.N. 908.

(3.) It is contended for the appellants that the suit is not barred by limitation as the alienations were by the father who was alive at the date of the suit and who was its managing member and it was not competent for the 25 defendant 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 93 Ind. Cas. 216 : 48 A. 152 : 24 A.L.J. 97 : A.I.R. 1926 P.C. 16 : (1926) M.W.N. 197 : 50 M.L.J. 344 : 3 O.W.N. 365 : 43 C.L.J. 374 : 30 C.W.N. 698 : 28 Bom. L.R. 851 : 53 I.A. 36 (P.C.). 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 page 154 Page of 48 A.--[Ed.] of the judgment that the High Court of Allahabad against whose judgment this present appeal was before the Privy Council relied on the decision of Ganga Dayal V/s. Mani Ram 1 Ind. Cas. 824 : 31 A. 156 : 6 A.L.J. 62 and differed from the view taken by the Madras High Court in Vigneswara V/s. Bapagya 16 M. 436 : 3 M.L.J. 216 : 5 Ind. Dec. (N.S.) 1010 and in Doraiswami Sirumadan V/s. Nondisami Saluvan 21 Ind. Cas. 410 : 38 M. 118 : 25 M.L.J. 425 : 14 M.L.T. 401. 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 decision of their own Court in Ganga Dayal V/s. Mani Ram 1 Ind. Cas. 824 : 31 A. 156 : 6 A.L.J. 62 and differing from the view taken by the Madras High Court in Vigneswara V/s. Bapayya 16 M. 436 : 3 M.L.J. 216 : 5 Ind. Dec. (N.S.) 1010 and Doraisami Sirumadan V/s. Nondisami Saluvan 21 Ind. Cas. 410 : 38 M. 118 : 25 M.L.J. 425 : 14 M.L.T. 401 on which the Subordinate Judge has rested his judgment, they held that the conduct of Fateh Singh, the eldest brother, did not affect the undoubted rights of the plaintiff." Then dealing with the question of limitation what their Lordships of the Privy Council say is that they concur with the High Court and that they are of opinion that there is no substance in the appeal. It is clear from a perusal of this report that their Lordships of the Privy Council adopted the view taken by the Allahabad High Court which was against the view taken by the Madras High Court in Vigneswara V/s. Bapayya 16 M. 436 : 3 M.L.J. 216 : 5 Ind. Dec. (N.S.) 1010 and Doraiswami Serumadan V/s. Nondisami Saluvan 21 Ind. Cas. 410 : 38 M. 118 : 25 M.L.J. 425 : 14 M.L.T. 401. We find it difficult to distinguish the facts of the present case from the ease of the Privy Council We may also point out that in Narayana Naicken V/s. Venkatasami Naicken 88 Ind. Cas. 31 : 51 M.L.J. 845 : (1926) M.W.N. 767 : 24 L.W. 475 : A.I.R. 1926 Mad. 1190; Devadoss and Wallace, JJ. held following Jawahir Singh V/s. Udai Parkash 93 Ind. Cas. 216 : 48 A. 152 : 24 A.L.J. 97 : A.I.R. 1926 P.C. 16 : (1926) M.W.N. 197 : 50 M.L.J. 344 : 3 O.W.N. 365 : 43 C.L.J. 374 : 30 C.W.N. 698 : 28 Bom. L.R. 851 : 53 I.A. 36 (P.C.) that a suit to set aside a sale by a younger son within three years of attaining majority would not be barred because his elder brother had not filed a suit within the time and allowed his claim to become barred. The fact that in Jawahir Singh V/s. Udai Parkash 93 Ind. Cas. 216 : 48 A. 152 : 24 A.L.J. 97 : A.I.R. 1926 P.C. 16 : (1926) M.W.N. 197 : 50 M.L.J. 344 : 3 O.W.N. 365 : 43 C.L.J. 374 : 30 C.W.N. 698 : 28 Bom. L.R. 851 : 53 I.A. 36 (P.C.) the Privy Council recognised the joint cause of action does not help the respondents in this case very much because the question is whether a valid discharge can be given and there is no authority for holding that one brother can give a valid discharge. We are of opinion that the Subordinate Judge was wrong in holding that the suit was barred by limitation and dismissing the suit on the preliminary question.