1. The facts necessary for the determination of this appeal lie in small compass, and are not open to ambiguity. In both Courts below the plaintiff's suit has been dismissed as barred under Article 11 of the Limitation Act inasmuch as it was instituted more than a year after an order passed under Section 335 Civil Procedure Code, against the plaintiffs' stepbrother, Virupakshapa. That order was made in favour of the defendants 4 and 5, to whose possession Virupakshapa had offered obstruction. Both lower Courts have held that the plaintiffs are bound by the order under Section 335 on the ground that they were represented by Virupakshapa in the miscellaneous proceeding which resulted in that order. The only question in appeal is whether the plaintiffs are so bound or not. It appears to me that they are not bound.
2. The question must turn upon the circumstances in which the order was made, and I must therefore refer briefly to those circumstances. In January 1898 the Court sale purchasers, defandants 4 and 5, applied to be put in possession of the property, but delivery of possession was obstructed by Virupakshapa on 20th January 1898. At this time Virupakshapa was in possession as manager of the joint family which included his minor step-brothers, the present plaintiffs. On 6th August 1898 the order under Section 335 was made, awarding possession to the purchasers in the absence of any appearance by Virupakshapa: in other words, Virupakshapa, who was responsible by his obstruction for the beginning of these proceedings, afterwards withdrew from them and allowed an order to be made against him. It is perfectly plain why he did so. On 6th June 1898, that is during the pendency of the proceedings, a farkhat or settlement on partition had been arrived at between the members of the family, and the lands in question had fallen to the share of the plaintiffs, then minors. In these circumstances, Virupakshapa, acting upon his pleader's advice, took no further part in the miscellaneous proceedings. The pleader's letter to Virupakshapa is quoted in the judgment of the learned Subordinate Judge, and certain passages may be repeated here. 'Steps are taken,' writes the pleader, 'to get your obstruction removed, but it is unnecessary for you to oppose them; the lands are allotted to the share of others, and there is nothing which you ought to do in connection with them.... Orders will be passed to put the purchasers in possession. Those to whom the lands are allotted may, if they choose, offer obstruction hereafter. If we now inform their names to the Court, notices will be issued to them. They will come on that day and contend that the farkhat is false'. It is clear therefore that Virupakshapa withdrew from the miscellaneous proceedings in reliance on the farkhat as severing his interests from those of the other members of the family. It should be added that this farkhat of 1898, which required for its validity the sanction of the Court, never received that sanction. It was impugned by the plaintiffs who after a great deal of litigation eventually succeeded in getting it set aside. Finally another compromise was effected and received the sanction of the Court in 1902.
3. Now the question is whether Virupakshapa represented his step-brothers when the order under Section 335 was made. In support of the affirmative view it is urged that unquestionably he represented them when the proceedings were begun, and that he must be held to have continued to represent them inasmuch as their interests were never severed, the farkhat of 1898 never having become operative. Even if he himself made a mistake as to the effect of the farkhat, that mistake, it is argued, cannot alter the legal position, which was that the family remained joint, and he remained the manager. That, no doubt, is true, so far as it goes; but in my opinion it does not go far enough. For, granted that the family remained in law joint under the management of Yirupakshapa, the question still remains whether the minors were '' efficiently represented' to use the language of Sir Charles Sargent C.J. in Padmakar Vinayak Joshi y. Mahadev Krishna Joshi ILR (1885) 10 Bom. 21. And to that question I think there can be but one answer. Not only did Virupakshapa not assume to act on behalf of the minors but he deliberately withdrew from the proceedings and refused to act at all. Nor does the case rest there, for it is cle,ar from his pleader's letter that his withdrawal was designed in order to deprive the minors of an opportunity of being heard. This design was apparently accomplished, for it is nowhere suggested that the minors had any opportunity of protecting their interest, which Virupakshapa had abandoned without notice to them or to any one on their behalf. Indeed it seems a clear inference that Virupakshapa's only object was the establishment of the farkhat, which the Courts afterwards set aside; and to this end he was working in his own interests and against the interests of the minors. His withdrawal from the miscellaneous proceedings was part of his general scheme, and I am of opinion that that withdrawal cannot be held to have bound the plaintiffs under Article 11 of the Limitation Act. Even if the miscellaneous proceeding had been contested to the end by Virupakshapa, that fact by itself would not necessarily prove that the minors were adequately represented; and here the abandonment of the proceedings and the proved circumstances in which that abandonment occurred show that the minors were not represented when the order under Section 335 was made.
4. As this is the only point on which the decree of the Court below is based, I must reverse that decree and remand the suit for trial on the other issues. Costs to abide the result.