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Sudarshan Prasad and ors. Vs. Radha Kishun Ram (Deceased by Lrs.) - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 291 and 511 of 1974
Judge
Reported inAIR1982All218
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 7 - Order 41, Rule 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 145; Hindu Law; Limitation Act, 1963 - Sections 6 - Schedule - Articles 59, 65 and 109
AppellantSudarshan Prasad and ors.
RespondentRadha Kishun Ram (Deceased by Lrs.)
Appellant AdvocateG.P. Bhargava, ;A.N. Bhargava and ;Sankatha Rai, Advs.
Respondent AdvocateV.K.S. Chaudhari, M.A.
DispositionAppeal dismissed
Excerpt:
property - amendment of plaint - order 6 rule 7 and order 41 rule 27 of code of civil procedure, 1908 and section 145 of criminal procedure code, 1898 - suit filed to cancel a sale deed of property of joint hindu family - claim that property belonged to plaintiffs - plea rejected by two lower courts - in second appeal application moved for amendment of plaint to include fact of proceedings under section 145 which was decided in their favour - held, intention of application not bona fide as plaintiffs bound to have knowledge of proceedings under section 145 before hand - the same should have been mentioned in original plaint. - - (9) renumbered as (8) shri kishun pra-sad son of ram subhag ram (10) renumbered as (11) dhodha prasad son of jhingur ram (11) renumbered as (10) gauri shanker.....deoki nandan, j. 1. these are two second appeals arising from the decree dismissing the two suits 15 of 1967 and 99 of 1970 of the court of the civil judge, ballia. the plaintiffs in the two suits are different from each other, but they belong to the same family. the relief claimed in both the suits was the same, namely, the cancellation and setting aside of a sale-deed dated 1st september, 1943. the two suits were heard and dismissed by the same judge, but by separate judgments dated 25th jan. 1972 in suit 15 of 1967 and dated 29th jan. 1972 in suit 99 of 1970. the first appeals from the two decrees of dismissal of the two suits were civil appeals 7 and 8 of 1972 in the district court. they were consolidated, heard and dismissed by a common judgment of the court of the district judge,.....
Judgment:

Deoki Nandan, J.

1. These are two Second appeals arising from the decree dismissing the two Suits 15 of 1967 and 99 of 1970 of the court of the Civil Judge, Ballia. The plaintiffs in the two suits are different from each other, but they belong to the same family. The relief claimed in both the suits was the same, namely, the cancellation and setting aside of a sale-deed dated 1st September, 1943. The two suits were heard and dismissed by the same Judge, but by separate judgments dated 25th Jan. 1972 in Suit 15 of 1967 and dated 29th Jan. 1972 in Suit 99 of 1970. The first appeals from the two decrees of dismissal of the two suits were Civil Appeals 7 and 8 of 1972 in the District Court. They were consolidated, heard and dismissed by a common judgment of the court of the District judge, Ballia.

2. It would be convenient to have before us the family tree of the plaintiffs and the pro forma defendant-respondents in both the suits.

Ram Lagan Ram

__________________________|________________________

| | |

Anant Ram Ram Subhag Ram Jhingur Ram

| | |

| _________|_____________ |

| | | |

______________________ Aeikiahun Ram Mohan |

| | | _______________|____________

and Lal Hareram Radha Kishan | |

| | | Dhondha Harihar Ram

| | Bheifunath Pd. | |

| ________|___________________ | |

| | | | | |

| Surendra Rajendra Barjan | |

| _______________________|___________ |

| | | | |

| Bharath Shanker Dayal Rama Shankor |

__|___________________________________________________ |

| | | | |

Secha Lal Sadarshan Pd. Balbhadra Babbasn Pd. |

________________________________________________________________|_________

| | | |

Chhathu Kesho Gauri Shanker Sheo Shanker

3. The plaintiffs in the first suit were seriatim (1) Sudarashan Prasad son of Nand Lal Ram (2) Ram Mohan son of Ram Subhag Ram (3) Rama Shanker Prasad (4) Bharat Prasad and (5) Shanker Dayal sons of Dhodha Prasad, and (6) Sheo Shanker Prasad son of Harihar.

4. The first two defendants in both the suits were, (1) Radha Kishun Ram and (2) Dina Nath Ram sons of Ganesh Ram the transferees under the impugned sale-deed. The pro forma defendants originally were seriatim (3) Harihar Ram son of Jhingur Ram (4) Hari Ram, and (5) Nand Ram Lal sons of Anant Ram (6) Bhrigu Nath Prasad son of Radha Kishan (7) Balbhadra Prasad son of Nand Lal Ram, who died during the pendency of the suit and his name was accordingly struck off (8) renumbered as (7) Surendra Prasad son of Hare Ram; (9) renumbered as (8) Shri Kishun pra-sad son of Ram Subhag Ram (10) renumbered as (11) Dhodha Prasad son of Jhingur Ram (11) renumbered as (10) Gauri Shanker Prasad son of Harihar Ram, Babban Prasad son of Nand Lal and Chatthu Prasad son of Harihar Ram were added as defendants 11 and 12 subsequently. In the other Suit 99 of 1970, the plaintiffs were seriatim (1) Babban Prasad son of Nand Ram (2) Chhathu Prasad and (3) Vir Prasad sons of Harihar Prasad and (4) Shatrughan Prasad son of Dhodha. The first two defendants were the same Radha Kishun and Dina Nath sons of Ganesh Ram. The pro forma defendants were seriatim (3) Hari-har Ram son of Jhigu Ram (4) Hare Ram and (5) Nand Lal sons of Anant Ram, (61 Bhrigu Nath Prasad son of Radha Kishun Prasad (7) Shri Kishun Prasad son of Subhag Ram (8) Dhodha Prasad son of Jhingur Prasad (9) Gauri Shanker Prasad son of Harihar; (10) Sudarshan Prasad son of Nand Lal (11) Ram Mohan son of Subhag (12) Rama Shanker Prasad son of Dhodha (13) Bharat Prasad and (14) Shanker Dayal sons of Dhodha and (15) Sheo Shanker Prasad son of Harihar. It would thus appear that the pro forma defendants 3 to 10 in Suit 15 of 1967 except for pro forma defendant Surendra Prasad are the pro forma defendants 3 to 9 in suit 99 of 1970. The plaintiffs of suit 15 of 1967 are the pro forma defendants 10 to 15 of suit 99 of 1970. Of the four plaintiffs in suit 99 of 1970, the first two Balbhadra Prasad and Chhattu Prasad are pro forma defendants 11 and 12 in suit 15 of 1967, Vir Prasad son of Harihar Prasad and Shatrughan Prasad son of Dhodha, plaintiffs 3 and 4 in suit No. 99 of 1970 are not parties to the other suit and as already noticed above, Surendra son of Hare Ram, originally defendant 8 but renumbered as defendant 7 of suit 15 of 1967 (respondent 12 in second appeal 291 of 1971) is not a party to suit 99 of 1970 however, these variations are inconsequential.

5. The impugned sale deed dated 1st September, 1943 was executed by Anant Ram, Ram Subhay Ram and Harihar Ram for an ostensible consideration of Rs. 2750/- in favour of Ganesh Ram the father of defendants 1 and 2. The validity of the sale deed was challenged on the ground that there was no legal necessity for the sale or benefit to the estate by its execution. One important factor of the case is that this very sale deed was sought to be set aside by (1) Harihar Ram, (2) Nand Lal Ram, (3) Bhrigu Nath Prasad, (4) Balbhadra Prasad, (5) Surendra Prasad, (6) Shri Kishun Prasad, (7) Gauri Shanker Prasad and (8) Dhodha Prasad, by a suit 498 of 1945 (1946?) in the court of the Munsif, Ballia; vide plaint. Ext. A-5 against Radha Kishun Ram and Dina Nath sons of Ganesh Ram and Smt. Sundari, the first three defendants of that suit and Ram Subhag Ram, Anant Ram and Har Prasad who were defendants 4, 5 and 6 thereto. The dispute raised in that suit was referred to arbitration. The arbitrator gave an award against the plaintiffs in that suit. The plaintiff's objections thereto were dismissed by the court of Munsif, Ballia, and the award was made a rule of the court by order dated the 26th April, 1947, vide Ext. A-4. An appeal from that order, being Misc. Appeal, no. 80 of 1947, failed. It was dismissed by the Civil Judge, Ballia, vide judgment dated 1st November, 1947 (Ext. A-3).

6. According to the case set up by the plaintiffs in suit 15 of 1967, which has given rise to the second appeal 291 of 1974, Ram Lagan Ram died leaving considerable property. The house in suit was purchased with ancestral funds by Ram Subhag Ram, Anant Ram and Harihar Ram by a sale deed dated 12th January, 1931 and the plaintiffs along with the pro forma defendants had been in possession ever since. The immediate cause of action pleaded was that on 29th August, 1966 when the plaintiffs wanted to repair the northern wall of the house, the defendants first set raised objections and claimed title on the basis of the impugned sale deed of 1943. It was alleged that the plaintiffs came to know of the impugned sale-deed for the first time that day. The suit was contested by the first two defendants only. They pleaded res judicata on the basis of the decision in suit 498 of 1946. The further plea raised by them was that the impugned sale-deed was validly executed for good and adequate consideration and the contesting defendants' father was put in possession of the house on the date of the sale and they have been in possession ever since; their names were duly mutated in the Municipal Papers and they spent quite a lot of money (about Rs. 12,000/-) on the improvement of the house. Section 51 T. P. Act was pleaded in this context. The proviso to Section 34, Specific Relief Act, was pleaded as a bar to the suit and last but not the least, limitation was also pleaded as a bar, apart from other technical pleas. Numerous issues were framed by the trial court. It is not necessary to refer to them all inasmuch as the only questions, which survive for consideration in this second appeal, centre round res judicata and limitation. A third question closely connected with the question of limitation is the question of possession over the house in suit on which the answer to the question about the bar of the proviso to Section 34, Specific Relief Act, also depends.

7. The facts and the points in controversy in the second suit 99 of 1970 were more or less similar to those in the earlier suit 15 of 1967. The first difference was that the date of knowledge of the impugned sale deed was pleaded to be 29th January, 1968 in the second suit in place of 29th January, 1966 pleaded in the earlier suit. The other difference lay in the fact that all the plaintiffs of suit of 99 of 1970 were born after the date of the impugned alienation, and an additional issue raised in that suit was whether they had a right to sue on account of their being after born sons. This issue is closely inter-linked with the issue whether the suits or either of them is barred by limitation. Before I proceed further, it may be clarified that the earlier of the two suits, that is suit 15 of 1967 of the court of Civil Judge was originally presented on 18th October, 1966 in the court of the Munsif. The plaint was thereafter returned by that court on 26th May, 1967 for presentation to the proper court, where upon it was presented to the court of the Civil Judge on 27th May, 1967. The second suit, being 99 of 1970. was filed three years later in the year 1970.

8. The trial court held in both the suits that the impugned sale-deed was validly executed for good and adequate consideration and was supported by legal necessity. It further held that the suits were barred by res judicata, Section 34 Specific Relief Act, and limitation. It also found that Ganesh Ram, the vendee, had spent Rs. 10,000/- on improvement, but there was no question of allowing him the benefit of Section 51, T. P. Act because the suits were liable to be dismissed on the aforesaid findings.

9. The lower appellate court also held the two suits to be barred by res judicata and finding that possession was delivered to the vendee on the (date) on which the sale deed was barred by held that the two suits were barred by limitation, as well as by Section 34, Specific Relief Act. The finding that the impugned sale was supported by legal necessity was also confirmed.

10. Mr. G. P. Bhargava assisted by Mr. Sankatha Rai appeared for the appellants in both the connected second appeals before me. The first point raised by them was that the burden of proof of existence of legal necessity, or, at any rate, of proof that he had made due and proper inquiries into the existence of the alleged necessity and had good grounds for believing that it existed, always lay on the alienee. That burden had not been discharged. The second point, urged by him was that every coparcener is entitled to challenge any alienation of coparcenary property in his own right independently of his father, and the decree in suit 498 of 1946 of the court of the Munsif could not have operated as res judicata. inasmuch as the plaintiffs of the present suit had an independent right to sue. They did not claim under their respective fathers. The general principles of res judicata had wrongly been invoked by both the courts below, inasmuch as the earlier decision was given by a civil court in a regular suit and the present dispute had also arisen before a civil court in a regular suit, to both of whom the Code of Civil Procedure was applicable in all its force, and the earlier decision could be said to be res judicata only on the basis of the provisions of Section 11. C. P. C. The general principles of res judicata did not apply in such a situation, and had wrongly been invoked by the two courts below.

11. The further attack on the decree under appeal was spearheaded by Mr. Sankatha Rai. He urged that the finding that the defendant-respondents 1 and 2 had entered into possession on the date of the impugned sale, viz 1st September, 1943. and had continued to be in possession ever since, was wrong and vitiated. He strongly pressed for the acceptence of an application for an amendment of the plaint in suit 15 of 1967, by adding the plea that a proceeding, under Section 145. Cr. P. C. was initiated by a preliminary order dated 12th June, 1964, that the property in suit was attached on 15th June, 1964, and was thereafter released, by an order dated 16th December, 1965 of the Sub-Divisional Magistrate, in favour of Ram Mohan and Bharat Prasad (plaintiffs 2 and 4) on behalf of all the plaintiffs, who were found to have been in possession of the property in suit in that proceedings. By another application made simultaneously, certified copies of the preliminary order dated 12th June, 1964, the proceedings of attachment taken on 15th June, 1964 and the order of the Sub-Divisional Magistrate, dated 16th December, 1965, were sought to be filed. These applications were opposed by a counter affidavit. A judgment of the court of the Munsif, Ballia, acting as a court of small causes in small cause suit 44 of 1976 between Ishwari Lal Gupta, plaintiff and Sudhishra Narain, defendant, was filed along with the counter-affidavit to show that the property in suit was in the possession of the contesting defendants. This was followed by a rejoinder affidavit along with which a copy of the judgment of the court of the Third Additional District Judge, Ballia in revision 33 of 1977 from the aforesaid judgment of the small cause court was filed.

12. Mr. Sankatha Rai contended that the genuineness of the documents now filed by him was unimpeachable and they successfully established that the plaintiffs have been in possession of the property in suit. That being so. the whole basis of the findings of the two courts below that the two suits were barred by limitation as also by Section 34, Specific Relief Act, completely disappeared, and those findings could not be sustained. Mr. Sankatha Rai further contended that the proper Article of the Limitation Act, which governed both the suits was Article 91 of the old Limitation Act, or 59 of the new Limitation Act, and not Article 126 of the old or 109 of the new Limitation Act.

13. Since the bar of limitation goes to the root of the matter I shall first consider the contentions raised by Mr. Sankatha Rai. For dealing with that, it is first necessary to dispose of the two applications filed by Mr. Sankatha Rai on behalf of the plaintiff-appellants in second appeal 291 of 1974 -- (1) for the amendment of the plaint in suit 15 of 1967 and (2) for admission of documentary evidence of the proceedings under Section 145. Cr. P. C. Two of the plaintiffs, namely, Ram Mohan son of Subhag Ram and Bharat Prasad son of Dhonda Ram were second party to the dispute under Section 145, Cr. P. C. That dispute was initiated by the preliminary order dated 12th June, 1964 and ended with the final order dated 16th December, 1965 of the Sub Divisional Magistrate releasing the property in favour of the second party. The boundaries of the property, which was the subject matter of the dispute under Section 145, Cr. P. C. as specified in the preliminary order, tally with the boundaries of the property in suit as specified in the plaint of suit 15 of 1967. But, although Ram Mohan son of Subhag Ram and Bharat Prasad son of Dhonda Ram were plaintiffs 2 and 4 in suit 15 of 1967, which are originally filed on 18th October, 1966 in the court of the Munsif, Ballia. the plaint of that suit does not contain any mention of the said proceedings under Section 145, Cr. P. C. Instead the immediate cause of action set up in the plaint is that the plaintiffs came to know of the impugned sale deed for the first time on 29th August, 1966 when they attempted to reconstruct the northern wall of the house in suit. The plaintiffs have also not mentioned the earlier suit 498 of 1946 and the result thereof in the plaint. The allegation of the plaintiffs that they came to know of the impugned sale deed for the first time on 29th August, 1966 is not easy to believe. For the reasons given by the lower appellate court and the trial court in their judgment, I have no hesitation whatsoever in agreeing with the finding that possession over the property in suit was delivered to Ganesh Ram, the purchaser, simultaneously with the execution of the sale-deed on 1st September, 1943 and that he, and, after him the contesting defendants, had continued to be in possession of the property in suit. It cannot be said that the plaintiffs were unaware of the proceedings under Section 145, Cr. P. C. when they filed the suit. The proceedings had ended in their favour. In the normal course of things a mention of the proceedings under Section 145, Cr. p. C. should have found its way in the plaint and the three documents sought to be filed now should have been filed as the first thing in proof of the plaintiffs possession over the property in suit. Their suppression must have been deliberate. It has not been suggested in either of the two applications that the facts about the proceedings under Section 145, Cr. P. C., were ignorantly or accidentally omitted to be mentioned in the plaint and the documents in respect thereof were also ignorantly and bona fide omitted to be filed at the proper, stage of the suit in the trial court. The deliberate suppression of this material must have been occasioned by something that happened after the final order dated 16th December, 1965 in the proceedings under Section 145, Cr. P. C. That something might very well have been the effective dispossession of the plaintiffs on or about 29th August. 1966 which was the date of the immediate cause of action pleaded by the plaintiffs in suit 15 of 1967, or may be the proceedings under Section 145. Cr. P. C., were ineffective, and the real situation was that the plaintiffs had never been in possession of the property in suit and could not get into effective possession in spite of the final order dated 16th December, 1965 which was passed in their favour. It is, however, neither necessary nor proper for me to speculate about the real state of affairs on this point. It is sufficient to say that both the applications are highly belated and do not appear to have been made bona fide. The object of the application for amendment of the plaint was only to somehow secure the admission of the three documents filed along with the other application, inasmuch as the conditions prescribed by Order 41, Rule 27, C. P. C. for admission of fresh evidence are not at all satisfied in this case. If the application for amendment of the plaint is rejected, there is no good reason whatsoever for admission of the documents sought to be filed by the other application. For the aforesaid reasons, I did not think it fit to allow either of the two applications and proceeded to hear the appeal. The two applications are accordingly rejected.

14. Article 59 of the Schedule to the Limitation Act. 1963, is in the following terms.

'59.To cancal or set aside an instrument or decree or for the rescission of acontract.

Three years

When the facts an titled the plaintiff to have theInstrument or decree cancelled or set aside or the contract rescinded firstbecome known to him'

15. Mr. Sankatha Rai sought to apply this Article of the Limitation Act on the basis of the allegation that the plaintiffs came to know of the existence of the impugned sale deed in suit 15 of 1967 on 29th August 1966 and in suit 99 of 1970 on 29th January, 1968. The plea that the suits were governed by Article 59, Limitation Act, 1963, or the corresponding Article 91. Indian Limitation Act. 1908, on the basis of the alleged dates of knowledge of the existence of the impugned sale deed was not put forth in either of two courts below. The allegation that the plaintiffs first came to know of the existence of the impugned sale deed on the said dates is difficult to believe.

16. In suit 15 of 1967, the plaintiffsclaimed the benefit of Sections 6 and 7, Limitation Act, for getting over the bar oflimitation, but the age of the youngestone of them, that is Sudarshan Prasad,was specified to be twenty three yearsin the plaint when it was originally presented in October, 1966. The 'other plaintiffs were all of them older than Sudarshan Prasad. Suit 15 of 1967 was thusclearly, barred by limitation even if theplaintiffs' contentions were to be accepted, for it was brought after the expiryof three years from the date on whichthe youngest one of the plaintiffs attained the majority. The trial court heldthat the starting point of limitation wasthe date of the impugned sale-deed,inasmuch as the plaintiffs have not beenin possession of the house since thatdate. That showed that the Article ofthe Limitation Act applied by the trialcourt was Article 109 of the limitationAct, 1963 the corresponding Articleunder the Indian Limitation Act. 1908.being Article 126. Article 109 of the 1963Act reads as under:--

'109. By a Hindu governedby a Mitak. shara law to set asidehis father's alienation of ancestral property.

Twelve years

When the alienee takes possession of theproperty.'

17. Article 126 of 1908 Act was in identical terms except for the difference that the expression 'the Law of the Mitakshara' was used in placed of the expression 'Mitakshara Law.'. The concurrent finding of both the courts below is that possession of the property was taken by the alienee, that is the contesting defendants' father Ganesh Ram, on the date of the impugned sale-deed that is 1st September, 1943. Even if the youngest one of the plaintiffs had been born or, at any rate, conceived on 1st September, 1943. that is the date of the sale itself, the last date by which the suit could have been brought under this Article of the Limitation Act, read with Sections 6 and 7 thereof, would have been the 1st September, 1964. The suit was thus clearly barred by limitation if the Article applicable was either Article 109 of the 1963 Act or Article 126 of the 1908 Act. That seems to be the reason why Mr Sankatha Rai contended that Article 109 was not applicable. The argument was that the plaintiffs were not the sons of either of the executants of the impugned sale-deed. That is not correct, inasmuch as in suit 15 of 1967, the plaintiff Ram Mohan is the son of Ram Subhag Ram, while the plaintiff Sheo Shanker Prasad is the son of Harihar Ram. The youngest of them Sudershan Prasad, plaintiff 1, is a grandson of Anant Ram the third executant of the impugned sale-deed. Plaintiffs 3, 4 and 5 are nephews of Harihar Ram.

18. Mr. Sankatha Rai contended that a grandfather and an uncle (father's brother) are not included within the expression 'father' as used in Article 109. My attention was drawn to certain cases in this context.

19. In Dhan Raj Rai v. Ram Naresh Rai (AIR 1924 All 912) the plaintiffs were the grandsons of the executats of the sale-deeds in question, as also a grandnephew, being the grandson of a deceased brother of the two executants of the sale-deeds. Article 126 of the 1908 Act was applied without any question whether the expression 'father' as used therein included a grandfather or a granduncle.

20. In Ram Deo Kurmi v. Ram Rathi : AIR1935All742 the plaintiff was the grandson of the executant of the sale-deed in question. Article 126 was again applied without any question as to whether the expression 'father' as used therein includes the grandfather.

21. Jivaji Keshav v. Venkatesh Krishna (AIR 1940 Bom 136), a Division Bench of the Bombay High Court. on the other hand, went into the question whether the expression 'father' included grandfather in Article 126, Limitation Act, 1908. and holding that it did not, it applied Article 144 of that Act to the suit, and held that the cause of action for a suit of this character accrued on the date when the alienee's possession became adverse to the person seeking to set aside the alienation, and that date was the date on which possession was delivered to the alienee under the impugned sale-deed even if that person was born subsequently.

22. In view of the facts of the two cases decided by the Allahabad High Court in 1924 and 1935 and the general principles of Hindu Law on this point, I am included to the view that the expression 'father' as used in Article 109, Limitation Act, 1963, or Article 126 of the 1908 Act could in an appropriate case include a grandfather and even a great grandfather or a paternal uncle or grand uncle on the theory that a son includes a grandson and a great grandson, in the original Sanskrit texts of Hindu Law on this point. However, it is not necessary to go into the question in this case. The reason is that if Article 128 of the 1908 Act or Article 109 of the 1963 Act did not apply to a grandson's or a nephew's suit for setting aside an alienation of joint family property made by the plaintiff's grandfather or uncle, the proper Article to be applied to a suit of this kind was Article 144 of the 1908 Act or Article 65 of the 1963 Act as held by the Bombay High Court in Jivaji Keshav's case (AIR 1940 Bom 136) (supra), and not Article 91 of the 1908 Act or Article 59 of the 1963 Act as contended by the learned counsel. Moreover, in view of the concurrent finding arrived at by the two courts below that, the alienee entered into possession of the property on the date of the impugned sale and has continued to be in possession ever since, it is impossible to believe that the plaintiffs have had no knowledge of the impugned sale-deed until 29th August. 1966 in iuit 15 of 1967, and 29th January. 1968 in suit No. 99 of 1970. The plaintiffs must be deemed to have had knowledge, on the date on which the sale deed was executed and possession delivered to the alienee, or even on the date when the sale-deed was duly registered, for if the plaintiffs had made proper inquiries into the nature of the alienee's possession, they would have come to know of the existence of the sale deed, or, but for their wilful abstention from an inquiry or search which they ought to have made, or gross negligence on their part, they would have known it. This is particularly so in the present case in view of the institution of the earlier suit 498 of 1946 which had been instituted and decided in respect of the impugned sale deed itself, it is impossible to believe that the plaintiffs did not have knowledge of that litigation, or, at any rate, did not acquire knowledge of all these facts and of the said litigation within a reasonable time, at the most three years, of their attaining the age of majority.

23. Suit 15 of 1967 was thus barred by limitation,

24. In suit 99 of 1970. none of the plaintiffs were in existence on the date of the impugned sale deed. They were born after that In Rano Dip Singh v. Parmeshwar Pershad the Privy Council laid it down that the cause of action of a suit to set aside a sale-deed executed by a Hindu father without legal necessity arises on the date of the sale deed. No fresh cause of action arises in favour of a son not in existence on the date of the sale deed but born subsequently. And a person not in existence on the date on which the cause of action arises or on the date from which the period of limitation is to be reckoned cannot claim the benefit of Section 6, Limitation Act, The suit by an after born sons must, therefore, be filed within the limitation for a suit by the youngest of the sons in existence on the date of the execution of the sale-deed, and/or taking of possession by the alienee This principle was applied by the Bombay High Court in Jivaji Keshav's case (AIR 1940 Bom 136) (supra) to a suit by a grandson or by a coparcener other than the son of the executant of the impugned sale-deed, which in its opinion, was governed by Article 144, Limitation Act, 1908. It was held that the possession of the alienee becomes adverse against the whole coparcenary from the date on which he enters into possession under a sale-deed alleged to be invalid for want of legal necessity, and the coparcenary includes not only the coparceners in existence on the date of the sale-deed and the entry into possession of the alienee, but also the subsequently born members of the coparcenary, it was held by a Division of this Court in Sita Ram Singh. v. Cheddi Singh (AIR 1924 All 798 per Sulaiman J.). That

'When an alienation is made, which is not justified by necessity, a cause of action arises in favour of the other members to have it set aside and to recover possession from the alienee but there is only one cause of action in favour of the other members of the family. Successive causes of action cannot arise as new members are born year after year. If the contentions of the appellant were to be accepted, the result would be that in many cases such suits would never become barred by time inasmuch as new members may be born before the minority of an elder member is over.'

25. These observations were made in a suit by a son to which Article 126, Limitation Act, 1908, was in disputably applicable. The Division Bench of the Bombay High Court held that Article 126 did not apply to a suit by a grandson, to set aside an alienation made by his grandfather, but adopted and applied the said ruling to the case of a grandson's suit also which was, in its opinion, governed by Article 144. I am of the view that the rule enunciated in Sita Ram's case (AIR 1924 All 798) (supra) fully governs the present case. Indeed, it affords an easy illustration of the fear expressed by the Bench. The sons of the executants filed suit 498 of 1946 to have the sale set aside. They were unsuccessful. Some of their sons, and brothers too, who were alive on the date of the alienation, filed suit 15 of 1967. While that suit was still pending, their sons and brothers too, who were not born on the date of the alienation, filed the third suit 99 of 1970, to have the ever same alienation set aside on the same grounds.

26. Reliance was placed by Mr. Sankatha Rai on a decision of Vishswanatha Sastri, J, of the Andhra Pradesh High Court in Kotha Seshamma v. Pittala Venkayya (AIR 1957 AP 386). That case does not advance the appellants' case any further. The learned Judge held in that case following the decision of the Privy Council in Rano Dip Singh's case, (supra) that an after-born son was not entitled to claim the benefit of Section 6, Limitation Act, and that he has an independent right to sue on the cause of action which arose when the alienee took possession under the father's invalid alienation and his suit must be brought within 12 years under Article 126, Unaffected by any extended period of limitation available under Section 6 Limitation Act. to a coparcener existing at the time of the alienation.'

27. In the result it must be held, in agreement with the two courts below, that both the suits giving rise to these two second appeals were barred by limitation.

28. No other point survives for consideration.

29. The appeals fail and are dismissed with costs.


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