Rajagopala Ayyengar and Others vs Srinivasaragava Ayyengar and Others

C.V. Kumaraswami Sastriar, J.—This appeal arises out of a suit filed by the plaintiffs who are the sons of the 1st defendant for partition and

for setting aside the alienations made by the father, the 1st defendant.

The case of the plaintiffs was that they and the 1st defendant were members of an undivided Hindu family and that the father, the 1st 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 1st 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. Gottumkkula Venkayya 32 Ind. Cas. 802 : (1915)

M.W.N. 908.

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 25th 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 Vs. Udai Parkash, . 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. 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. Bapagya 16 M. 436 : 3 M.L.J. 216 : 5 Ind. Dec.1010 and in Doraiswami Sirumadan v. 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. 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. Bapayya 16 M. 436 : 3 M.L.J. 216 : 5 Ind. Dec. 1010

and Doraisami Sirumadan v. 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. Bapayya 16 M. 436 : 3 M.L.J.

216 : 5 Ind. Dec. 1010 and Doraiswami Serumadan v. 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 Vs.

Venkataswami Naicken and Others, ; Devadoss and Wallace, JJ. held following Jawahir Singh Vs. Udai Parkash, 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 Vs. Udai Parkash, 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.

It is argued before us that plaintiffs Nos. 2 to 4 are minors and were born after the alienations and, therefore, they have no cause of action. Issue

No. 6 has been raised as to whether plaintiffs Nos. 2 to 4 are entitled to maintain this suit, and that has not been disposed of by the Subordinate

Judge. We do not know which grounds may be urged in support of their claim.

We reverse the decision of the lower Court and remand the suit for disposal on the issues raised in the case. We think the costs of the appeal

will abide and follow the result of this suit. The costs of the respondents who appear before us here will abide and follow the result.

Reilly, J.

I agree. It is true, as has been argued by Mr. Champakesa Ayyanger, that we have not before us the judgment of the Allahabad High Court

which was under appeal before their Lordships of the Privy Council and that in their Lordships judgment they merely say that on the question of the

limitation they agree with the Allahabad High Court. But from the statement of facts in the report it is clear that their Lordships were dealing with

facts similar to those of the present case and that the decision that that suit was not barred by limitation must apply to the present suit.