1. This appeal arises out of a suit brought by the plaintiff to set aside the alienation made by his father of certain movable property alleged to have been acquired by the father out of joint ancestral funds.
2. The claim was decreed by the Court of first instance but was dismissed by the lower appellate Court on the sole ground that the suit was one falling within the scope of article 49 Schedule II of the Limitation Act of 1877, and as it was brought more than three years after the sale made by the father it was, therefore, barred by limitation.
3. On appeal to this Court it is urged that article 126 governs the case. The plaintiff's case is directed against his own brother who apparently will not join him in the suit, as well as against the alienee. The facts alleged by him are that he and his father and brother formed a joint Hindu family subject to the Mitakshara, that out of ancestral funds the family purchased certain ' Jajmani Bahis' (they are a family of Brahmins and are by profession ''Family priests'), that the father without the knowledge of the plaintiff' and without his sanction sold the books to the defendant Shib Narain, there being no legal necessity for the sale, that in spite of the sale he remained in possession of the books until recently when during his temporary absence they were removed by the vendee with the connivance of the plaintiff's brother. Hence his present suit to set aside the alienation by his father and recover possession of the bahis jointly with his brothers. He also expressed his readiness to pay any sum which the Court might deem payable by him in equity.
4. The question for decision is whether article 126 or article 49 applies to a suit of this nature.
5. In one sense it is a suit to recover specific moveable property, and unless for some reason it can be held to fall under article 126, article 49 must apply. The plaintiff seeks to recover the bahis themselves. At the same time it is, as the suit stands, one by a Hindu governed by the law of the Mitakshara to set aside his father's alienation of ancestral property. It is urged for the respondent that this article refers only to immoveable property. Stress is laid on its position in the schedule, and the whole scheme of the Act, and the fact that suits relating to moveables are referred to in the early part of the schedule, whereas article 126 finds a place amidst articles all or most of which refer to immovable property.
6. It seems to me, however, quite clear that where any article of the schedule refers to moveable property only or immoveable property only, the Legislature has taken care to make itself clear, e.g., article 49, article 126. But articles 125 and 127 both relate to the property of a joint Hindu family.. The one deals with ancestral property and the other with joint family property. It could hardly be denied that a person excluded from joint family property could sue under Article 127 to enforce a right to show in both move-able and immovable property. It would be a denial of justice to hold otherwise in a suit brought on the cause of action contemplated in this article. Equally so, in a suit under article 126, a Hindu son may sue in respect to moveables, if the suit is maintainable at all. Of course, if it is not maintainable at all, it will fail, but for a totally different reason other than limitation.
7. In my opinion the suit as brought is one falling within the scope of article 126 and is not barred by limitation. It may not be maintainable for other reasons but that is another matter. Even if it be held that both articles 49 and 126 apply, still the plaintiff would be entitled to the longer term allowed by article 126. In this view I admit the appeal, set aside the lower Court's decree and remand the case to the lower Court for decision of the appeal on its merits. Costs in this Court will abide the result of the case and be costs therein.