1. This appeal arises from a suit brought by respondents Nos. 1 and 2, who are brothers and members of a Hindu joint family, to set aside the alienation of family property made during their minority by their mother as their guardian. The trial Court found that there was legal necessity for the sale in part. It overruled an objection on the ground of limitation and set aside the sale on terms, that is to say, the plaintiffs were directed to pay a certain sum of money into Court. On appeal, the District Judge confirmed the lower Court's decree, though he decided the point of limitation in favour of the plaintiffs on different grounds from those which appealed to the trial Court. The present second appeal is brought by defendant No. 3 in the suit who is a transferee from the original alienee.
2. The learned advocate who appears for him has contended in the first place that the lower Courts were wrong in setting aside the sale and that they ought to have held that the sale was justified fully by legal necessity. As to this part of the case, I think it is not necessary to say much. It appears to me that the lower Courts have really approached this matter from the wrong point of view. They have busied themselves with the question whether there were debts legally payable by the plaintiffs, and if so, how much they amounted to. The real question of course is whether the sale itself was necessary. As pointed out in Krishn Das v. Nathu Ram (1926) L.R. 54 I. A. 79, 29 Bom. L.R. 825, it was incumbent on the alienee to satisfy the Court that there was some pressure on the estate which made it necessary that this property should be sold or that at any rate he made reasonable inquiries and satisfied himself that this was so. There is no evidence of anything of the kind. In fact the findings of fact of the Court of first appeal at p. 4 of the print are directly against the appellant on that point. It has been held that no bona fide inquiry had been made at all and also that the conditions laid down by the Privy Council as necessary to support an alienation are not fulfilled in the present case. On this point, therefore, the decision of the lower Courts is right.
3. Then there is the question of limitation which is much more difficult. The cases of the two brothers have to be considered separately. Plaintiff No. 1, the elder brother, is found to have come of age in about January, 1921. The Article of limitation applicable is Article 44 under which the suit had to be brought within three years of his attaining majority. Prima facie then plaintiff No. 1 was bound to bring a suit before January, 1924. The present suit was filed on March 9, 1927. But on January 22, 1923, a suit No. 25 of that year was actually brought by plaintiff No. 1 for himself and as the guardian of his minor brother. It was for the same relief, viz., to set aside the sale-deed, and there was also a prayer for redeeming previous mortgages. The suit was dismissed in the District Court as it was held that it was not maintainable as framed. It was a suit under the Dekkhan Agriculturists' Relief Act and under that Act a prayer for redemption could not be joined with a prayer for setting aside an alienation. That decision was upheld in second appeal by this Court on June 23, 1926. But this Court gave permission for the suit to be withdrawn and a fresh suit filed by the plaintiffs 'if so advised.' As I have stated, the present suit was filed thereafter on March 9, 1927. The time taken over suit No. 25 of 1923 was three years, five months, and one day, Adding that to the three years allowed by Article 44, assuming that it can be added, the time available to plaintiff No. 1 would be six years, five months and one day and the present suit would be in time. The question is, however, whether the time taken over this other suit can be excluded under Section 14 of the Indian Limitation Act. The First Class Subordinate Judge who decided the first appeal held that it could, but, in my opinion, that decision cannot be maintained. The order of this Court permitting the plaintiffs to withdraw the suit with liberty to bring a fresh suit must be taken to have been an order made under Order XXIII, Rule 1, Civil Procedure Code, and indeed that rale was expressly referred to in the judgment. That being so, however, Order XXIII, Rule 2, shows that in the fresh suit which the plaintiffs proceeded to institute they must be bound by the law of limitation in the same manner as if the first suit had not been instituted. That is to say Section 14 of the Indian Limitation Act cannot apply. There is an authority of this Court directly in point, Varajlal v. Shomeshwar I.L.R(1904) 29 Bom. 219, 7 Bom. L.R. 90. It appears from the judgment of this Court in Gulabsing Ukhaji v. Keshav Sadu (1926) Second Appeal No. 700 of 1925, decided by Marten C. J. and Percival J., on June 23, 1926 (Unrep.) that the learned Judges who decided it were under the impression that Section 14 would apply, but, as they say, the matter was not argued before them, and in view of the very clear language of Order XXIII, Rule 2, there can be no doubt, in my opinion, that plaintiff No. 1 is not entitled to the benefit of Section 14, and that so far as he is concerned, the suit must be barred.
4. Then we come to the case of the younger brother. He did not come of age until December 11, 1926. So far as he is concerned, the suit was within three years of his attaining majority. But there is Section 7 of the Indian Limitation Act which provides that where one of several persons jointly entitled to institute a suit is under any disability and a discharge can be given without the concurrence of such person, time will run against them all. If, therefore, plaintiff No. 1 as the elder brother was capable of giving a discharge within the meaning of this section, then the fact that the bar of limitation operates against him will mean that it must operate against his younger brother also. The learned advocate for the respondents has contended that this section does not apply. He admits that there is an authority of this High Court, Bapu v. Bala : (1920)22BOMLR1383 , which is directly against him. The facts were almost precisely similar. A Hindu mother acting as natural guardian of her sons had sold family property without necessity. It was held that A suit to set aside the sale was barred by limitation under Section 7 and Article 44 three years after the eldest of her sons attained majority. There are also numerous other decisions of this High Court on the same point to which I was referred but which it is not necessary to cite. Mr. Kane's contention is that this current of authority in Bombay and in particular the decision in bapu v. Bala should be regarded as no longer having any validity by reason of a decision of the Privy Council in fawahir Singh v. Udai Parkash (1925) L.R. 53 I. A. 36, . 28 Bom. L.R. 851. Actually the judgment of their Lordships in that case merely says that on the question of limitation they concurred with the High Court of Allahabad. But it appears from the report that the High Court of Allahabad had relied on a previous decision of their own in Ganga Dayal v. Mani Ram I.L.R(1908) All. 156, and had differed from the view taken by the Madras High Court in Vigneswara v. Bapayya I.L.R(1893) Mad. 436 and Doraisami Serumadan v. Nondi-sami Saluvan I.L.R(1912) Mad. 118. Now in Bapu v. Bala Mr. Justice Fawcett relied upon Doraisami Serumadan v. Nondisami Sahivan and disapproved of Ganga Dayal v. Mani Ram. Therefore, Mr. Kane urges, the Privy Council having approved of a decision of the Allahabad High Court which followed Ganga Dayal v. Mani Ram, it should be taken that the authority of the Madras cases and those of this High Court relying on the Madras cases has been shaken and is no longer binding. It is necessary, however, to see what the Court held in Ganga Dayal v. Mani Ram, and it appears from the observations in the judgment at p. 160 that the capacity of the manager of a joint Hindu family to give a discharge was not really before the Court. The learned Judges say :-
It is further argued in the present case that the plaintiff No. 1 must be deemed to be the managing member of the family who would have a right to give a discharge. The powers of the manager of a Hindu family are undoubtedly very extensive, but there is nothing in the present case to show that the plaintiff No. 1 ever acted as the manager. In the present case all that he did was to remain quite inactive without taking any step to recover possession of the property or to set aside the transaction which was completely against the interest of himself, and his minor brother.
Those observations do not apply here, and, according to the view which has always been taken by this High Court, plaintiff No. 1 here, when he attained majority, must be regarded as legally the managing member of the family. I may mention that the High Court of Madras in a recent case, Surayya v. Subbamma : AIR1928Mad42 , has considered the Privy Council case of fawahir Singh v. Udai Parkash and in spite of it has confirmed Doraisami v. Nondisami. Their Lordships say (p. 678) :-
Mr. Raghava Rao, who appears for the appellants, contends that the authority of Doraisami v. Nondisami is considerably shaken by the decision of the Privy Council in Jawahir Singh v. Udai Parkash. In that case, their Lordships did not deal specifically with the case in Doraisami y. Nondisami. They simply say that they agree with the High Court of Allahabad as regards the question of limitation, but unfortunately the judgment of the Allahabad High Court is not before us and we do not know on what grounds the learned Judges who decided that case distinguished that case from the case in Doraisami v. Nondisami.
I agree with the view taken in this case that under the circumstances it is not possible to hold that Doraisami Serumadan v. Nondisami Saluvan has been overruled or that the authority of Bapu v. Bala and the other Bombay cases is no longer binding. On this point of limitation, therefore, that the suit in the case of plaintiff No. 2 must be barred, if it is barred in the case of plaintiff No. 1, I agree with the Court of first appeal.
5. The result, therefore, is that I must hold that the present suit was barred by limitation, as against both the plaintiffs, and I must set aside the decrees of the lower Courts and direct that the suit be dismissed. As regards costs, the appellant must have his costs in this Court, but as it is a case of obvious hardship and the appellant has succeeded on a somewhat technical ground, not on the merits, I direct that the parties pay their own costs in both the lower Courts.