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Jivaji Keshav Bapat Vs. Venkatesh Krishna Byadgi - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 332 of 1936 and Second Appeals Nos. 402 and 403 of 1937
Judge
Reported inAIR1940Bom136; (1940)42BOMLR208
AppellantJivaji Keshav Bapat
RespondentVenkatesh Krishna Byadgi
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), articles 127, 144-hindu joint family-alienation by grandfather-suit by grandson born after alienation-limitation.;article 126 of the indian limitation act applies to an alienation by a father, and not by a grandfather, in a joint hindu family governed by the mitakshara law.;a suit by a hindu to set aside an alienation of the joint family property made before his birth by his grandfather without any justifying cause is barred by limitation under article 144 of the indian limitation act, 1908, if instituted more than twelve years after the date of the alienation.;the father in a joint hindu family consisting of himself and his two sons alienated portions of the family property in 1909 and 1910. to one of the sons, two sons (plaintiffs) were born in 1913.....wassoodew, j.1. the only question, which, in these three appeals, one (no. 332 of 1936) from a decree of the first class subordinate judge of belgaurn, the second and the third (nos. 402 and 403 of 1937) from the appellate decrees passed by the district judge of belgaum, was dealt with in the courts below and which arises for consideration before us, is whether a suit by a hindu to set aside an alienation of the joint family property made before his birth by his grandfather without any justifying cause is barred by limitation, if instituted more than twelve years after the date of the alienation. the facts which raise that question can be shortly stated.2. the appellants-plaintiffs were members of a joint hindu family governed by the mitakshara law. their grandfather nagesh, who was along.....
Judgment:

Wassoodew, J.

1. The only question, which, in these three appeals, one (No. 332 of 1936) from a decree of the First Class Subordinate Judge of Belgaurn, the second and the third (Nos. 402 and 403 of 1937) from the appellate decrees passed by the District Judge of Belgaum, was dealt with in the Courts below and which arises for consideration before us, is whether a suit by a Hindu to set aside an alienation of the joint family property made before his birth by his grandfather without any justifying cause is barred by limitation, if instituted more than twelve years after the date of the alienation. The facts which raise that question can be shortly stated.

2. The appellants-plaintiffs were members of a joint Hindu family governed by the Mitakshara law. Their grandfather Nagesh, who was along with his sons Keshav and Yeshvant in possession of the joint family property, effected sales of distinct parcels of that property to different individuals including the respondents in these appeals between 1909 and 1910. The plaintiffs, who are the sons of Keshav, were not born at the date of the alienations. The first plaintiff was bora in 1913, and the second plaintiff in 1914. Their father Keshav died in 1916, and their uncle Yeshvant, who was childless, died in 1921. It may be noted that during the lifetime of Yeshvant and Keshav they did not impeach the alienations in so far as they affected their interests in the joint family property. The alienees were in peaceful possession of the property sold to them till the date of the suits from which these appeals arise and which were all filed on the same day, namely, June 5, 1934. It is common ground that these suits were well within three years of the plaintiffs attaining majority.

3. It was alleged by the plaintiffs that the sales were without legal necessity and there was no antecedent debt, except of a very small amount, which could have been easily paid off by the sale of a portion of the alienor's interest in the joint family property, and that therefore those sales were not binding on the interests of the alienor's sons or grandsons subsequently born. The alienees raised a common defence to these actions, and they contended that the alienor was the manager of the family, that the debts were for family necessity, including the payment of an antecedent debt, and that the suits were time-barred. A preliminary issue on the question of limitation was framed and. decided by the trial Judge, who, upholding the defence contentions, has dismissed the three suits which raise these appeals. It may be mentioned that the decrees in two of these suits in which the property was valued at less than Rs. 5,000 were taken in appeal to the District Court of Belgaum. The learned District Judge confirmed the decrees of the trial Court agreeing with that Court that the suits were barred either under Article 126 or Article 144 of the Indian Limitation Act. From those decrees two second appeals have been filed in this Court. From the decree in the third suit, where the valuation of the property involved for the purpose of jurisdiction exceeded Rs. 5,000, an appeal has been directly filed here. All these appeals have been heard together.

4. On the question of limitation counsel's argument is of a two-fold character. He says that the lower Courts were wrong in applying Article 126 of the Indian Limitation Act, for that article does not apply in terms to a suit to set aside an alienation made by the plaintiffs' grandfather, as it postulates a suit by a Hindu son governed by the law of the Mitakshara to set aside his father's alienation of ancestral property. It is argued that in the absence of definition of a ' son' in the Indian Limitation Act which would include a ' grandson', it would be improper to apply Article 126. The second part of the argument is that the plaintiffs as coparceners had acquired under the Mitakshara law an interest in all the joint family property existing at the date of their birth, and that inasmuch as the plaintiffs' father's interest was not legally alienated, it subsisted at the time when the plaintiffs were born and the latter had acquired an interest in it. The argument proceeds that upon their birth the plaintiffs had a fresh cause of action for taking possession of the property comprised of the coparcenary estate, and that Article 144 would apply. Counsel has relied upon certain observations in Wasantrao v. Anandrao (1904) 6 Bora. L.R. 925 that under Mitakshara law the son does not claim through his father, but that the son's title is from his birth wholly independent of, and equal to, that of his father. The underlying assumption is that inasmuch as the plaintiffs' right to possession of their interest arose upon their birth the defendants' prior possession could not be adverse to their interest, for adverse possession is possession which is in contravention of the right of another to such possession.

5.In the consideration of the question of limitation it seems to have been assumed in the Courts below that the sales were not binding on the coparceners of the alienor, including his sons. That assumption is also involved in the question raised here on the basis of the issue framed and decided in the trial Court. Dealing with the question as to the applicability of Article 126, I might at once say that it would be wrong in the construction of the Article to draw an analogy from the doctrine of representation in Hindu law or the doctrine of pious obligation of a son or a grandson to discharge the father's or grand-father's debt. It may be true that in the consideration of that obligation a son would include a grandson. But the inclusion of the grandson in the term ' son' is the result of the interpretation of the texts, particularly of Brihaspati (see Colebrooke, Vol. I, Chap. V, page 185, cited by Sir Dinshah Mulla, in The Principles of Hindu Law, 8th Edition, page 337). Consequently no general doctrine could be laid down that for all purposes, particularly in the interpretation of the articles in the Indian Limitation Act relating to Hindus the term ' son' could be regarded as implying a grandson. We were referred by Mr. Gumaste for the respondent to Masit Ullah v. Damodar Prasad as an authority for the view that the term ' son' in Article 126 as in the compound ' putra pautradi' is indicative of a class and not of an individual alone. Their Lordships in that case were dealing with the texts on Hindu law in reference to the question as to the liability of the great-grandson under that law for the payment of the great-grandfather's debts in proportion to their relative shares in the joint family property. It is erroneous in my opinion to draw an analogy from the interpretation of those texts and to argue that the Legislature perhaps had in mind the doctrine of representation in Hindu law when enacting Article 126. The Legislature has omitted all reference to a grandson in Article 126. That omission may appear curious for there is no assignable reason for differentiating between the rights of a son to question his father's alienation and those of a remoter descendant in regard to his ancestor's transaction. Whatever that may be, Article 126 must be subject to the rule of strict construction, and I think, therefore, that article can have no application to this case.

6. The question is what is the appropriate article which is applicable to this case. It is plain that Article 127 would not be applicable to a suit between one member of a joint Hindu family and a stranger alienee who is in possession of the property by virtue of a transfer made by another member of the joint family including a father or manager [see Radhdnatk Doss v. Gisborne (1871) 14 M. I.A. 1 and Ram Lekhi v. Durga Charon Sen I.L.R. (1885) Cal. 680]. The only other article which may be considered is the residuary Article 144. That article applies to a suit for possession of immoveable property or any interest therein not specially provided for, and the time from which the period begins to run is when the possession of the defendant becomes adverse to the plaintiff. Our attention has been drawn to the definition of the term ' plaintiff' in Section 2, Sub-section (8), of the Indian Limitation Act, which includes any person from or through whom, a plaintiff derives his right to sue. The description is obviously not intended to be exhaustive. Counsel's argument is that as the plaintiffs do not claim through their parents and as they have acquired a right in the coparcenery property in their own independent right upon their birth, the cause of action is independent and separate, that therefore the defendants' possession could not become adverse to their interest, and that their exclusion could not be known to them until they were born. Before dealing with that argument it might be necessary to state that an alienation made by a father, who has sons then living, not being one for legal necessity or for payment of an antecedent debt, if made without their consent may be set aside according to the Bombay law by any one of the sons partially so far as it affects his interests in the property [see Fandu Vithoji v. Goma Ramji I.L.R. (1918) 43 Bom. 472 : 21 Bom. L.R. 213 and Pandurang Namyan v. Bhagwmdas Atmaramshet I.L.R. (1919) 44 Bom. 341 : 22 Bom. L.R. 120]. The question involved in the argument is this : Assuming that before the sons existing at the time of the alienation are all dead, a grandson is born, and assuming further that the alienation can be set aside by the grandson in his own right if it was not ratified before his birth, does the grandson acquire a cause of action independent of the non-alienating coparceners alive at the date of the alienation The point is not free from difficulty and the authorities on the subject are not quite reconcilable. For the purpose of the argument it may be conceded that the alienations in question were not valid. They were either void and not binding on the plaintiffs as contended for by the appellants or voidable as contended for by the respondents. With referrence to the former view some authorities were cited such as Narain Prasad v. Sarnam Singh , which was a case from Allahabad, and In the matter of Amirthalinga : AIR1928Mad986 . For the latter we were referred to the character of the alienations by a manager of the family [see Subba Goundan v. Krishnamachari I.L.R. (1921) Mad. 449 and Principles of Hindu Law by Sir Dinshaw Mulla, 8th Edition, Section s 242-44, at pp. 271-74. It is in my opinion immaterial for the present purpose to define the exact nature of an alienation which is beyond the authority of the alienor. According to the trend of the authorities in this country such an alienation would not diminish the corpus of the joint family property to the extent to which it was unauthorised. If that were so, then an after-born coparcener like the plaintiff could acquire a proportionate share in the interest which is not validly transferred. That is the view accepted in Hanmantappa v. Dundappa (1933) 36 Bom. L.R. 474, and it is not inconsistent with the decision in Ramkishore Kedarnath v. Jainarayan Ramrachhpal (1913) L.R. 40 IndAp 213 : 15 Bom. L.R. 867. Even so the question is, can he impeach the alienation made before his birth. The principle laid down in R&mkishore; Kedarnath's case seems to be that the after-born son cannot impeach the alienation individually. But if a coparcener, who was alive at the date of the alienation, files a suit on behalf of the family to set aside the alienation partially, the after-born coparcener can participate in the benefit of the decree as a member of the joint family. The case would be entirely different if the alienation was good when it was made by a sole surviving coparcener and another coparcener was born thereafter. The ratio of the decisions seems to be that there must be some coparcener other than the alienor alive at the time of the alienation capable of impeaching the transaction before another coparcener is born [see Viswesuma Rao v. Surya Rao I.L.R. (1935) 59 Mad. 667. There are, however, some observations in Lal Bahadur v. Ambika Prasad (1925) L.R. 52 IndAp 443, which suggest that the right to question an alienation of the joint family property is confined to the coparceners who were alive at the date of the alienation. That was a case where two Hindus sued to set aside a sale by their grandfather of part of the property of the joint family. The purchase price, which was adequate, was applied to discharge certain mortgages executed by the plaintiffs' grandfather before the plaintiffs were born. It was held that the mortgages, which were executed before the plaintiffs were born, were incumbrances upon the plaintiffs' interest acquired upon their birth. Lord Blanesburgh in delivering the judgment of the Board observed as follows (p. 445):-

The respondents, plaintiffs in the suit, are sons of Awadh Behari. In 1895 [when the mortgages were executed] they were still unborn. This, as will later appear, is one of the most important facts in the case. It follows from it that these two mortgage deeds have always been binding on the respondents. The only joint family estate to an interest in which they succeeded was an estate which to the extent of these two morgages had already been alienated.

7. There are other observations to the similar effect (p. 450):-

If the respondent Adita Prasad was not born at the date of the sale-deed, that deed is binding upon him, and the suit impeaching it, so far as he is concerned, cannot be maintained.

8. Those observations might seem to conflict with what was stated in Ramkishore Kedarnath v. Jainarayan Ramrachhpal.

9. But it seems to me that having regard to the question we have to decide, it is unnecessary to pursue that point any further. I shall assume, as we are asked to assume, that the plaintiffs acquired an interest in the property transferred and that the suit to impeach the transaction was maintainable. The ground of our decision therefore is narrowed down to this : whether the plaintiffs upon the facts stated were within time under Article 144 in impeaching the alienation. In my opinion, the solution to that question must largely depend upon what would be regarded as the cause of action for a grandson to set aside the unauthorised alienation. That must again depend upon the character of the interest which he acquires in the joint family property which has been alienated before he was born. If the after-born son does not acquire a fresh cause of action, his right would be clearly barred under Article 144. In Ranodip Singh v. Parmeshwar Pershad (1924) L.R. 52 IndAp 69 : 27 Bom. L.R. 175 their Lordships of the Judicial Committee in dealing with the question of the applicability of Article 126 to a suit instituted to set aside an alienation by a father held that as one of the youngest plaintiffs was not in existence at the date of the alienation, no new cause of action arose upon his birth, and that consequently Section s 6 and 7 of the Indian Limitation Act would not prevent a suit from being barred under Article 126 of the First Schedule to the Act. There the alienation was made by the plaintiffs' father in 1893. The alienor had four sons, three of whom were born at the date of the alienation. The fourth plaintiff was not born until 1900, and the suit was brought within three years of his reaching majority. Sir Lawrence Jenkins in delivering the judgment of the Board observed as follows (p. 72) :-

The cause of action arose on June 3, 1893, and it is from that date that the period of limitation is to be reckoned. The fourth plaintiff's subsequent birth on November 30, 1900, did not create a fresh cause of action or a new starting point from which limitation should be reckoned.

10. It seems to me that the principle deducible from that case, which dealt with a suit by a son, would be equally applicable to a suit by a grandson governed by Article 144. The interest to which the plaintiffs succeeded was an interest in an estate which to the extent of the alienor's share therein had already been alienated. Upon counsel's own showing it was an interest in a coparcenary estate. Consequently in my opinion they were not entitled to any special or separate interest in that coparcenary property, nor to an exclusive possession of any part of that property. That is the essence of a right which a Hindu governed by the Mitakshara acquires by birth in coparcenary property. As observed by1 their Lordships of the Privy Council in dealing with the rights of coparceners, there is community of interest and unity of possession between all the members of the family-[see Katama Natchier v. The Rajah of Shivagunga (1863) 9 M. I.A. 539]. It is clear to my mind, therefore, that if the possession of the defendants could be regarded as adverse to the coparcenary title or interest, it would equally be adverse not only to the existing coparceners but all those who acquired subsequently by birth an interest in that title. If that were so, the cause of action would be identical and the time would commence to run from the date on which the possession of the defendants became adverse to the coparcenary estate [see also Sita Ram Singhv. Cheddi Singh I.L.R. (1924) All. 882].

11. As to the character of the possession of the alienee there is good authority for holding that his possession is prima facie adverse against the interests of those members of the family whose interests are not legally affected by the transfer [see Balwantrao v. Ramkrishna (1901) 3 Bom. L.R. 682; Wasantrao v. Anand-rao (1904) 6 Bom. L.R. 925; and Bhavrao v. Rakhmin I.L.R. (1898) Bom. 137.]. Although the facts in the latter case were not quite similar, for it was a case where certain members of a joint Hindu family alienated by sale and mortgage specified plots of lands, ' out of their share,' the ratio decidendi was that the alienee entered as owner and not as a co-sharer and was therefore in a. position to defeat the title of the coparceners under Article 144 [see observations in Biswanath Chakravarti v. Rabija Khatun I.L.R. (1928) Cal. 616 where that case has been distinguished]. There are observations in the judgment of the Chief Justice who delivered the judgment of the full bench in Bhavrao's case, which are relevant to the question of the purchaser's position vis-a-vis the coparceners of his vendor. The learned Chief Justice said (p. 141):-.as he enters as owner and in right of his conveyance, his possession is adverse to them also. In the eye of the law, all the co-parceners, though for the sake of convenience they may be in separate possession of portions of the joint estate, are the owners of the whole estate including the alienated portion.

12. If the unity of title and possession of the coparceners is assumed, the alienee's possession is against that title, and all those interested in it would be barred having regard to the character of the interest they can claim.

13. It has been urged that the nature of the acquisition of an interest by a Hindu coparcener upon his birth ought to enable the latter to say that the defendant must assert and prove adverse possession against him individually within the statutory period. With respect I think that argument involves a fallacy as to the very nature of the interest acquired by birth, and therefore I am of the opinion, apart from the question of expediency and the argumientum ab inconvenknti which has been applied by the Allahabad High Court in rejecting the claim like that of the plaintiffs, that the suits are barred under Article 144. The inconvenience or rather the danger of upsetting titles if the claim of the plaintiffs were upheld needs no demonstration. It has been animadverted upon in the judgment of Sulaiman J. in Sita Ram Singh v. Cheddi Singh (1924) I.L.R. 46 All. 882. He said (p. 883) :-

Successive causes of action cannot arise as new members are born year after year. If the contention of the appellants were to be accepted, the result would be that in many cases such suite would never become barred by time inasmuch as new members may be born before the minority of an elder member is over.

14. With respect I agree with that reasoning. It would afford an additional ground for disallowing the contention of the appellants. I am of the opinion, therefore, that the suits instituted by the plaintiffs fail being barred by time, and that the three appeals must be dismissed with costs.

Broomfield, J.

15. Nagesh was the manager of a joint family consisting of himself and his sons Yeshwant and Keshav. He sold several of the family lands to the predecessors of the respondents in 1909 and 1910 and handed over possession. Plaintiffs are the sons of Keshav and were born in 1913 and 1914 respectively. The sales were not challenged by their father Keshav who died in 1916, nor by Yeshvant who died in 1921. Nagesh himself died in 1920. The suits from which these appeals arise were brought by the plaintiffs in 1934 to recover a two-third share in the property on the footing that the sales were only valid in respect of the undivided one-third share of Nagesh himself. The suits were brought within three years of the plaintiffs attaining majority and they relied on Section 6 of the Indian Limitation Act. One of the defences to the suits was that the sales were for legal necessity and therefore binding on the whole family. But the suits have been dismissed on a preliminary issue of limitation, for the purpose of which it must be assumed that there was no legal necessity.

16. The trial Court has held that the suits were barred by Article 126, if not by Article 144. It is quite clear that if Article 126 applied the suits would be barred, for in that article it is expressly provided that time runs from when the alienee takes possession. On this point Ranodip Singh v. Parmeshwar Pershad (1924) L.R. 52 IndAp 69 : 27 Bom. L.R. 175 is a clear authority, and the position is conceded. But the learned counsel for the appellant says, rightly I think, that Article 126 does not apply as it refers to cases of alienations by a father, not by a grandfather.

17. As Article 126 does not apply, the residuary Article 144 must apply, according to which the starting point of limitation is when the possession of the defendant becomes adverse to the plaintiff. That, according to the argument for the appellants, could only take place so far as the present plaintiffs are concerned when they were born, and by reason of Section 6 the period of limitation is extended to three years from their attaining majority. Section 9 of the Indian Limitation Act does not apply, it is said, because the time did no begin to run as against the plaintiffs until they were born. In Mulla's Principles of Hindu Law, paragraph 270, Clause (1), page 317, the effect of the authorities is stated to be that an alienation by a coparcener in excess of his powers can only be set aside by a coparcener who was in existence or already conceived at the time of the alienation. In Mayne's Hindu Law, i paragraphs 397 to '399, this view is not accepted, though it has to be admitted that there are observations in Lal Bahadur v. Ambika Prasad (1925) L.R. 52 IndAp 443, which seem to support it. However, I think Mr. Thakor is right when 'he says that as we are dealing with an issue of limitation simpliciter, and not an issue as to the competence of the suits, we must assume that a suit by an after-born coparcener to set aside an alienation may be maintained, if not barred by limitation.

18. The question is what is the cause of action for such a suit. Does an alienation by a coparcener in excess of his powers give rise to a single cause of action common to all the coparceners, or do all the coparceners, including those born afterthe alienation, have a separate cause of action Mr. Thakor's argument requires us to hold that each has a separate cause of action. But I think the balance of authority is definitely against that view.

19. In Lachmi Narain Prasad v. Kishan Kishore Chand I.L.R. (1915) All 126, which is one of the cases relied upon by Mayne, it was held that if the coparceners in existence at the time of the alienation do not sue within the period of limitation, the right of the alienee is perfected and a coparcener born after that date is barred. That proposition is not, I think, disputed by the learned counsel for the appellants, Visweswara Rao v. Surya Rao I.L.R. (1935) Mad. 667 goes further. It was held there that if the coparceners who are entitled to sue died without having brought a suit, a coparcener who enters into the family thereafter is barred.

20. It is true that both these cases may be distinguished on the facts. The father and uncle of the present plaintiffs both died within twelve years of the alienation, so that the title of the alienee had not been perfected against them, and the plaintiffs were born and became coparceners before they died and not after. All the same these rulings are quite inconsistent with the view that the coparcener born after the alienation has a separate and independent cause of action, for in that case the decision must have been different. Mr. Justice Stone in Visweswara Rao v. Surya Rao I.L.R. (1935) Mad. 667 is quite explicit as to the principle (p. 687):

whether or not an after-born son can effectively join with existing sons to attack or resist an alienation, the cause of action or the right to defend is a cause or right that was in those members of the family that were alive at the time of the alienation and were not consenting. The right to attack begins to exist at the moment of the alienation and at the highest (we do not decide whether it extends so high) exists in all members of the family that exist while such right of action is intact. If that right of action is lost by those members of the family who had it when it arose, i.e., those coparceners who were in existence and not consenting at the time of the alienation, if that right of action is lost by them by the operation of the statute of limitation, it is lost to the family and does not live on in some child who becomes a coparcener even during the lifetime of the coparceners that existed when the alienation took place where such coparceners' cause of action has been barred. And by parity of reasoning, just as where the right of action possessed by the coparceners existing at the time of the alienation, if barred, is lost, not only by them but also by any member of the family later-born if they allowed the period of limitation to expire, so it is also lost if those persons who were in existence at the time of the alienation lost that cause of action by death before there came into existence the after-born child ; for the after-born child has got no right of action in himself, no ' individual and separate cause of action that springs up immediately he is born, but his right to contest, if any, is derived from the right that those in existence at the time of the alienation who were not consenting had, and that right is lost to him when it is lost to them, and it is lost to them when they die, or, when they permit the period of limitation to expire.

21. There are similar observations in Stia Ram Singh v. Cheddi Singh I.L.R. (1924) All. 882, which my learned brother has cited.

22. Moreover there is an authority of the Privy Council on the same point in Ranodip Singhv. Parmeshwar Pershad I.L.R. (1924) IndAp 69 : Bom. L.R. 175, to which my learned brother has also referred. I may quote what Mr. Justice Stone, in the Madras case just mentioned, has to say in connection with this Privy Council decision (p. 684) ;-

And, finally and, so far as we are concerned, conclusively, it was decided, by the Privy Council in Ranodip Singh v. Parmeshwar Prasad that, where there was a Hindu father with three sons at the time of the alienation which was in 1893, and there was born to him a fourth son in,1900, and a suit was brought to recover possession of the alienated property in 1920, and the right of action of the three sons living at the time of the alienation was barred because they had waited until beyond the three years after they attained majority, the right of action of the fourth son who had brought the action within the three years was barred also, the reasons being that he had no separate cause of action, the cause of action was that of his elder brothers (as being the coparceners in existence at the time of the alienation) and that cause of action was barred. So obviously, had he had a separate cause of action it would not have been barred.

23. Mr. Thakor has attempted to distinguish Ranodip Singh v. Parmeshwar Pershad and Sita Ram Singh v. Cheddi Singh merely by saying that they were cases under Article 126, not Article 144. But there seems to be no principle on which it can be suggested that though an after-born son has not, an after-born grandson has, a separate cause of action. It may be noted that in the passages in Mayne on which Mr. Thakor relies it is nowhere asserted that the grandson or other after-born coparcener has a separate cause of action, and the learned commentator at the end of his discussion seems to commit himself to the proposition that a suit by the grandson, to be in time, must be brought within the period of limitation as determined in accordance with the decision in Ranodip Singh v. Parmeshwar Pershad. That seems to mean that the question of limitation for a suit is to be decided on the footing that the right to set aside an alienation, or to recover possession of property in spite of alienation, is not an individual right but a corporate right.

24. If the plaintiffs cannot be said to have a separate and independent cause of action, their suits cannot be in time, for time commenced to run in 1909 and 1910 when the alienees got possession. The possession of the alienees was adverse to the whole of the coparceners [Bhavrao v. Rakhmin I.L.R. (1898) Bom. 137.]. Mr. Thakor says that, this case is distinguishable because it was a case where certain members of a joint Hindu family alienated by sale and mortgage specified plots of lands, out of their share, giving boundaries of the plots and covenanting for title ; and what was really decided was that the purchaser entered as owner and not as a co-sharer [see Biswanath Chakravarti v. Rabija Khatuiri I.L.R. (1928) Cal. 616]. But according to the view taken in Bombay, at any rate, a person who purchases from a coparcener property in excess of that coparcener's share with- out justifying necessity is a trespasser in respect of the excess [see Balwantrao v. Ramkrishnd (1901) 3 Bom. L.R. 682], and that being so, his possession must be regarded as adverse to all the coparceners. It would be a contradiction in terms to say that he is a trespasser and at the same time a co-sharer with the other coparceners.

25. It follows from this that time was already running when the plaintiffs were born. Section 9 comes in their way, and moreover they cannot rely on Section 6 for the reasons given by their Lordships of the Privy Council in Rmodip Singh v. Parmeshwar Pershad (1924) L.R. 52 IndAp 69 : 27 Bom. L.R. 175:-

To the contention that by the cited Section s [i.e. 6 and 7] the period of limitation is extended for three years from the cessation of the fourth plaintiff's minority the answer is that by their express terms this extended period can only be claimed by a person entitled to institute the suit at the time from which the period of limitation is to be reckoned. The fourth plaintiff does not come within this description, for at that time he was not in existence.

26. Since Section 6 cannot be availed of, the plaintiffs' suits are clearly time-barred under Section 3 of the Act. I agree therefore with my learned brother that the appeals must be dismissed with costs.


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