KISHAN LAL Vs. SHIB NARAIN

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff to set aside the alienation made by his father of certain movable property alleged to have been acquired by the father out of joint ancestral funds.

(2.) The claim was decreed by the Court of first instance but was dismissed by the lower appellate Court on the sole ground that the suit was one falling within the scope of article 49 Schedule II of the Limitation Act of 1877, and as it was brought more than three years after the sale made by the father it was, therefore, barred by limitation.

(3.) On appeal to this Court it is urged that article 126 governs the case. The plaintiff's case is directed against his own brother who apparently will not join him in the suit, as well as against the alienee. The facts alleged by him are that he and his father and brother formed a joint Hindu family subject to the Mitakshara, that out of ancestral funds the family purchased certain Jajmani Bahis" (they are a family of Brahmins and are by profession Family priests"), that the father without the knowledge of the plaintiff and without his sanction sold the books to the defendant Shib Narain, there being no legal necessity for the sale, that in spite of the sale he remained in possession of the books until recently when during his temporary absence they were removed by the vendee with the connivance of the plaintiff's brother. Hence his present suit to set aside the alienation by his father and recover possession of the bahis jointly with his brothers. He also expressed his readiness to pay any sum which the Court might deem payable by him in equity.