1. This is an appeal in a suit in which the plaintiffs sought to set aside on the ground of what of legal necessity two sales of joint family property made in the years 1904 and 1910 respectively. The deed of 1910 has been held by both Courts to be binding on the plaintiffs and the dispute is now confined to the deed of 1904. The two issues to be decided are:
Is the suit within time?
Was the alienation justified by legal necessity or antecedent debt?
2. The family to which the plaintiffs belong consists of four branches headed by the four sons of the common ancestor Jhingur Rai. The deed in suit was executed by the heads of all four branches. Two of the sons of Jhingur Rai, namely Jharap Rai and Dhanraj Rai, were alive and exeouted it. The other two Jadu Rai and Dhanoki Rai were dead but the deed was exeouted by the two sons of Jadu Rai and by the only son of Dhanoki Rai. The executants also admittedly included all the adult male members of the family at the time when the deed was executed. The plaintiffs are all minors Ijorn after the execution of the deed. They are respectively a grandson of Jadu Rai, two grandsons of Jharap Rai and one grandson of Dhanraj Rai. Their suit has been held to be within time because in 1904 a grandson of Jharap Rai named Sita Ram was in existence. This lad died in 1912 at the age of thirteen.
3. The consideration for the deed in suit was Rs. 423 and the whole of it except Rs. 25 was taken for payment of antecedent debts. A list of these debts is given in the judgments both of the Subordinate Judge and of the District Judge. The learned District Judge says that in order to establish the necessity for the sale 'it is necessary to show that these prior debts were in existence and that they themselves were binding on the family,' and he considers that there is no evidence apart from the recital in the deeds that such necessity existed. If the learned District Judge means by this that in order to support an alienation an antecedent debt incurred by an ancestor must have been incurred for purposes constituting legal necessity in the narrow sense his statement is clearly erroneous. With regard to the four of the items which he has marked (b), (c), (d) and (g) the learned District Judge says that 'there is not even any proof on the record that the deeds are genuine.' If the learned District Judge means by this that in order to prove that the sale consideration was taken in lieu of prior debts, it is legally essential that the prior deeds which were paid off out of the consideration must be produced and formally proved he is again in error. Indeed such a requirement would render proof in respect of an old transaction impossible. Deeds which have been paid off are not retained with the same care as deeds which are still in force. It is not surprising if after a lapse of nearly twenty years such deeds are not forthcoming, and it is quite open to the defendants to prove by other evidence that these debts existed and that the consideration was paid in satisfaction of them.
4. But the radical error which vitiates the judgment of the learned District Judge is his failure to realise the legal significance of the fact that the deed was executed by the representatives of all four branches of the family, and by all the adult male members of the family living at the time. Each of these circumstances separately has been held sufficient to raise a presumption of legal necessity. As to the latter see Balvant Santaram v. Babaji 8 B. 602 : 9 Ind. Jur. 227 : 4 Ind. Dec. (N.S.) 778. When combined they certainly do so. The presumption is still further strengthened by the fact that two of the original vendors Jharap Rai and Dhanraj Rai had sons who died long after attaining the age of majority but who did not during their life-time make any attempt to contest the validity of the deed. One of the sons of Dhanraj Rai is still alive and is defendant No. 5. In a similar case which came up under the Letters Patent, Ghuttan Lal v. Jai Ram 8 Ind. Cas. 719 : 8 A.L.J. 15 : 33 A. 288, this was held to support an inference in favour of the validity of the transaction.
5. This presumption applies to the whole deed and not merely to the items so far considered. There is considerable evidence to support it in regard to most of the items, and there is absolutely nothing to rebut it. One of the deeds which was paid off goes back as far as 1899 and it is not to be expected that after 21 years the defendants should be able to produce definite and positive evidence regarding the necessity for it. This is a very much stronger case than Peare Lal v. Sundar Singh 68 Ind. Cas. 805 : 20 A.L.J. 658 : (1922) A.I.R. (A.) 436 : 44 A. 756, which has been referred to in argument, as in that case the alienation was effected by the manager alone. The learned Subordinate Judge accepted all these items as being shown to be for legal necessity and the finding of the learned District Judge to the contrary is vitiated by manifest errors of law which entitle me to set it aside. In dealing with item (f) which he has accepted, the learned District Judge notices the fact that the deed was executed by the leading representatives of every branch of the family, but he seems to think that the only inference which can be drawn from it is that the debt was not illegal or immoral. The inference in reality goes much further than this. The presumption is that the deed represented a valid transaction which would bind the family estate. The finding of the learned Subordinate Judge on this issue was correct and should have been upheld.
5. In view of my finding on the above issue it is not necessary to say very much on the question of limitation. In view, of the fact that Sita Ram was alive at the execution of the deed, the plaintiffs who were born during his life time and within twelve Years of the alienation undoubtedly obtained a right to challenge it under the ruling of this Court in Tulshi Ram v. Babu 10 Ind. Cas. 908 : 33 A. 654 : 8 A.L.J. 733. A right to sue is not, however, co-parcenary property in which a son aoquires interest by birth, Lachman Das v. Sundar Das 59 Ind. Cas. 678 : 1 L. 558. Limitation under Article 126 runs from the date when the alienee takes possession of the property, which in this case was the date of the sale. If the plaintiff is a minor on the date when limitation commences this period will be extended in virtue of Section 6 of the Limitation Act, but it has been held in the Punjab case above referred to that Section 6 cannot be pleaded by a plaintiff who was not in existence when the alienee took possession. He is entitled to take advantage of the existing cause of action so long as it subsists, but he does not obtain a fresh period of 21 years from the date of his birth. The same view was taken in Oudh in a judgment in which the question is fully discussed; Chokhey Singh v. Hardeo Singh 64 Ind. Cas. 757 : 24 O.C. 330 : 8 O.L.J. 667 : 4 U.P.L.R. (O) 10. I am informed that the same view has also been taken in Bombay). If it were otherwise limitation might run on for ever. Suppose there is in existence at the time of the alienation an infant co-parcener. He clearly can sue within the period of his minority and three years thereafter. Just within three years after his attaining majority another co-parcener is born in another branch of the family and a fresh period of 21 years commences. It has been suggested in answer to this argument that the right to sue devolves like property on the legal representative of the minor, but a right to challenge an alienation is not property which devolves in this way. Every co-parcener who challenges an alienation does so in virtue of his own independent right as a person who has acquired interest in the family estate by birth. It was so held in Padarath Singh v. Raja Ram 4 A. 235 : 2 A.W.N. (1882) 29 6 Ind. Jur. 542 : 2 Ind. Dec. (N.S.) 863. Limitation reckoned from the date when the alienee took possession would have expired in 1916. Section 6 of the Limitation Act not being applicable, the plaintiffs cannot claim any extension beyond that date. For the same reason they cannot rely on Section 7 as there was no joint right when the period of limitation commenced Bhagat Bihari Lal v. Ram Nath 27 A. 704 : 2 A.L.J. 453 : A.W.N. (1905) 163 . If Sita Ram had lived he would have attained his majority in 1917. If that date is material, which I do think it is, it would be for the plaintiff's to show that their suit was brought within three years of it. The suit was not filed till August 1920. The appellants are in my opinion entitled to succeed also on the question of limitation though as I have said they are so clearly entitled to succeed on the other issue that it is almost superfluous to go into the question.
6. I may note in conclusion that there is a very recent decision of the Letters Patent Bench in Anant Kalwar v. Ram Prasad Tewari 78 Ind. Cas. 619 : 22 A.L.J. 182, that where a deed was executed by the father and uncle in lieu of antecedent debt the plaintiffs were bound by the acts of their own ancestor and could not challenge the deed. The same view was taken by the Patna High Court in Hari Prasad Singh v. Sourendra Mohan Sinha 66 Ind. Cas. 945 : 3 P.L.T. 709 : 1Pat. 506 : (1922) A.I.R. (Pat.) 450.
7. For the reasons given above I allow the appeal with costs including in this Court fees on the higher scale and restore the decree of the Subordinate Judge.