1. The plaintiffs in the suit, out of which this appeal has arisen, were Muktabal Singh and his minor son Partab Singh. The two plaintiffs and Bhawani Singh, who is the uncle of Muktabal Singh, were members of a joint Hindu family and owned 196 bighas, 13 biswas of land in the village of Mai Nath, perqanah Koil, District Aligarh, On the 17th of May 1900, Bhawani Singh executed a deed of gift of a one-half share in this property in favour of the defendant No. 1, Karan Singh, who, as has been found by the Court below, is a stranger to the family. On the strength of this deed of gift, Karan Singh obtained mutation of names in his favour; and in the year 1903, the plaintiffs joined with him in instituting a suit for enhancement of rent against tenants. In the year 1907, Karan Singh instituted a suit for profits against the plaintiffs. The institution of this suit of profits was the cause of the bringing of the present suit. The reliefs asked for in the plaint were open to objection but the plaint has now been amended with the permission of the Court, so as to bring the reliefs into conformity with Section 42 of the Specific Relief Act. Shortly stated, the plaintiffs asked that they and Bhawani Singh be declared to be the owners in possession of the entire family property: and if they are found to be out of possession, that Karan Singh be dispossessed and the plaintiffs be put into possession of the property jointly with Bhawani Singh.
2. The Court of first instance decreed the suit, and gave the plaintiffs the declaration asked for that the property in suit was the jointproperty of the plaintiffs and the defendant Bhawani Singh, and that the defendant Karan Singh acquired no interest in it by the deed of gift of the 17th of May 1900.
3. The lower appellate Court found that Karan Singh did obtain possession and that it was necessary for the plaintiffs, before they could succeed in their suit, to have the deed of gift in Karan Singh's favour set aside; that the suit was governed by the provisions of Article 91 of the second Schedule of the Limitation Act and having been brought after the expiry of more than three years from the date of the deed of gift was barred by limitation. The Court below also found as a fact that the plaintiff became aware of the execution of the deed of gift shortly after its execution and that in any case the suit would be barred under the provisions of Article 120 of the Limitation Act.
4. In second appeal, it is contended that neither Article 91 nor Article 120 of the Limitation Act governs the present suit, and that the deed of gift executed by Bhawani Singh in favour of Karan Singh was inoperative and had no effect as against the plaintiffs, who are, therefore, under no necessity to sue to have it set aside.
5. Under the Mitakshara law, a member of a joint Hindu family has no power to alienate any portion of the family property without the consent of his co-parceners. Such consent has not been pleaded in the present case; and eyen if it had been pleaded, there still remains the fact that one of the plaintiffs is a minor. There are authorities for holding that under such circumstances, it is not necessary for the plaintiffs to sue to have a deed of this nature executed by a member of a joint Hindu family set aside. We need only, refer to the decision of their Lordships of the Privy Council reported in the case of Rabeholme v. Smith 34 C. 336, at p. 339. We cannot, therefore, agree with the decision of the Court below that either Article 91 or Article 120 of the Limitation Act governs the present case. The suit appears to us to be governed by the provisions of Article 141 and the suit has been brought well within the 12 years prescribed by that article. For these reasons, we allow this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with this' modification that in addition to the relief thereby decreed we give a decree to plaintiffs for joint possession of the property along with the defendant No. 1. The appellants will have their costs from the defendants in this and the lower appellate Court including fees in this Court on the higher scale.