ONKAR PRASAD Vs. DHANI RAM

JUDGEMENT

(1.) These connected appeals arise out of a suit for possession of a house brought by Onkar Prasad, appellant in Second Appeal No. 432 of 1926 and the contesting respondent in Second Appeal No. 523 of 1926. The suit was decreed for possession of one-third of the house in dispute by the Court of first instance whose decree has been affirmed by the lower appellate Court, the learned Additional District Judge of Agra.

(2.) The house in dispute belonged to one Sukh Lal, who sold it on 17 February 1908 to Babu Ram. One Banwari Lal obtained, on 4 August 1908, a simple money decree against Sukh Lal, in execution of which he attached the house in question. Babu Ram aforesaid had in the meantime died, and his son Onkar Prasad objected to the attachment relying on the sale deed in favour of his deceased father. The objection was disallowed on the ground that the sale was not followed by possession and was a fictitious transaction. Thereupon a regular suit was instituted by Onkar Prasad for a declaration that it was not liable to be attached and sold in execution of Banwari Lal's decree pirthi Raj, an uncle of Onkar Prasad, acted as his next friend in that suit, which was eventually "dismissed as compromised" on 3 July 1911. The surrounding circumstances were somewhat unusual. Pirthi Raj, the next friend and guardian of Onkar Prasad, executed a sale deed on 1 July 1911 in respect of the house in favour of Dhani Ram and Babu Lal, brothers of the vendor Sukh Lal. (Babu Lal should be distinguished from Babu Ram, the vendee under the sale deed of 17 February 1908). The consideration of the sale deed was directed to be paid to Banwari Lal in satisfaction of his decree. On the same date Dhani Ram and Babu Lal executed a deed of gift in favour of Mt. Bitola, the widow of Sukh Lal, and Raj Kishore, the son of Sukh Lal, in respect of a bala khana of the house in dispute.

(3.) On 29 February 1924, Onkar Prasad brought the suit out of which the present appeal has arisen for possession, basing his title on the sale deed, dated 17 February 1908, and impleading Dhani Ram and Babu Lal. He impugned the subsequent sale deed executed on his behalf by his guardian, Pirthi Raj as invalid in the absence of legal necessity for the alienation. Mt. Bitola and Raj Kishore were made parties at a subsequent stage. The suit having been brought on 29th February 1924, was more than 12 years from the date of the sale deed, dated 1st July 1911. It has been found by both the Courts below that the plaintiff attained majority on 6 March 1921, and the suit having been brought within three years from that date must be considered to be in time as against the defendants originally impleaded; but Mt. Bitola and Raj Kishore were impleaded on 11 July 1924, that is, more than three years after the plaintiff attained majority, and therefore the plaintiff's claim as against them is prima facie barred by limitation.