1. This appeal arises out of a suit by the four sons of a Hindu, Gobind Singh, to recover property sold by their father and uncle by a sale-deed executed on the 9th December 1902, in favour of the defendants first party on the ground that the sale was without legal necessity.
2. The suit was defended on the ground that it was barred by limitation and also on the ground that the sale was for legal necessity.
3. Both the Courts below have dismissed the suit both on the ground of limitation and on the ground of legal necessity.
4. The first point raised before me in second appeal is that the suit has wrongly been held to have been time-barred under Article 126 of the Limitation Act since it is a case of alienation not by the father of the plaintiffs only but by the father and uncle combined. It is true that Article 126 provides for a suit by a Hindu to set aside his father's alienation of ancestral property but I think that this applies also to a suit when the alienation was made by the father in conjunction with an uncle. In my opinion the suit is governed by Article 126 since the mere fact that an uncle combined with the father in making the alienation in question is not a sufficient ground for taking it out of the scope of Article 126. No authorities have been cited before me by either side to show whether or not Article 126 applies and I hold that it does apply.
5. On this finding I think it is clear that the appeal must fail. The eldest son of Gobind Singh who is the Plaintiff No. 1 tried to prove that he was less than 21 years of age on the date of the institution of the suit, namely on the 26th of February 1923. Under Section 6 read with Section 8 of the Limitation Act, Deo Nandan Singh, the only plaintiff, who was alive at the time of the alienation which took place on the 9th December 1902, would have been compelled to institute a suit for the setting aside of the alienation within three years of attaining the age of majority, that is, he must prove that he was not more than 21 years of age at the date of institution. The Court below has held on the strength of medical evidence and of Deo Nandan's appearance, that he must be at least 23 years of age and therefore must have been more than 21 years of age, on the date of institution of the suit. I see no possible reason for setting aside this finding of pure fact in second appeal. The suit so far as Deo Nandan Singh is concerned is, therefore, clearly barred by limitation. So far as his younger brothers are concerned, who were not born at the time of the alienation they have not got a longer period of limitation than the period available to the elder brother Deo Nandan Singh. Under the ruling of their Lordships of the Privy Council in the case of Ranodip Singh v. Parmeshwar Pershad the younger brothers who were not in existence at the time of the alienation, did not get a fresh cause of action from their birth, and at the most, could only join in the suit with their eldest brother Deo Nandan Singh and held subject to the same period of limitation.
6. I agree with the Court below in finding that the suit was barred by limitation under Article 126. It has been argued before me that Article 144 should be applied instead of Article 126. This point was never raised in the Courts below and I have already given reasons for holding that Article 126 is the Article which should properly be applied to a suit of this nature.
7. The question of legal necessity has not been argued and need not be entered into since my finding on the question of limitation is sufficient for disposing of the appeal. I uphold the decree of the Court below and dismiss the appeal with costs including fees on the higher scale.