Charles Arnold White, C.J.
1. These are two appeals from a judgment and decree of the District Judge of South Canara. The plaintiffs asked for an order that the 1st defendant should be removed from his ejamanship; they also asked for a decree for possession of certain items of property. (This would be consequential on any order for the removal of the 1st defendant from his ejamanship). The plaintiff also asked that certain alienations of family property which had been made by the 1st defendant should be set aside. The family is a joint Aliyasantana family consisting of the 1st defendant and the plaintiffs. The 1st defendant is the last survivor of his branch of the family. He is now a very old man some 80 years of age. He has been the ejaman of the family since 1900 when he succeeded his elder brother Manjanna Shetty. The learned Judge gave the plaintiffs a decree for the removal of the 1st defendant from the ejamanship; and as consequential on that he gave them a decree for possession of certain family lands, items 1 to 10. As regards other items which were in dispute, items 12, 13, 14 and 15, the learned Judge held that item 14 belonged to the ejaman as his self-acquired property. He held that items 12, 13, and 15 belonged to the family, but that the plaintiffs' right to recover those lands for the family was barred by limitation. Appeal 245 of 1910 is an appeal on behalf of the 1st defendant against so much of the decree as directs his removal from his ejamanship. Appeal 44 of 1911 is an appeal by the plaintiffs on the ground that the learned Judge was wrong in holding that item 14 was the self-acquired property of the 1st defendant and also on the ground that the Judge was wrong with reference to the question of limitation to items 12, 13 and 15.
2. I take Appeal 245 of 1910 first. As I have stated, the 1st defendant succeeded his brother as ejaman in the year 1900. Within a year or two of his succession to the office he set up a claim to certain properties as the self-acquisition of his branch of the family and a suit was brought in 1901 by the family. It was held that the properties in question were family property. In that suit, however, although the plaintiffs asked for a decree for the removal of the 1st defendant no decree for his removal was given. We thus have a state of things in which for the second time in the course of some seven or eight years a suit has been brought against the ejaman of the family to establish the proprietary rights of the family in land which the ejaman has purported to deal with as his own self-acquisition. It is quite true, as pointed out by Mr. Naraina Rau, that the particular items of property which are in question in the present suit were not included amongst the items of property which were claimed by the family when the suit of 1901 was brought and Mr. Naraina Rau has contended that, assuming that these items of property now in question are family property, it is consistent with good faith in the ejaman that he should have purported to deal with them as his self-acquired property. Speaking for myself I should feel some difficulty in acceding to that contention, because I find it difficult to conceive how, having regard to the position of an ejaman of a family such as this and to the means of knowledge which must be at his disposal how he could honestly deal with family property under a bona fide belief that it was his self acquired property. However I do not think it is necessary for us to take the view in this case that the ejaman, when he purported to convey these items of property in 1906 under the instrument Exhibit XXXVI was acting dishonestly. For the purposes of this case I will assume that he acted under bond, fide mistake. Taking that to be so we have at any rate this: that in 1902, he, the ejaman set up a claim to family property which as against the family he was unable to maintain, and that since then, he has dealt with property, which in our, view is family property (I deal with this part of the case later) as his own.
3. There are other matters which we must consider. It became necessary for the family to raise a very substantial sum of money for payment off of a decree debt owing to one Abakke under a' mortgage of family property executed in her favour. It is scarcely necessary to observe that if the ejaman was in possession of family funds sufficient to meet that decree it would have been his duty to pay off the decree out of family funds or devote the family funds, so far as practicable or so far as they existed, to wards paying off the decree, and not to encumber the family property with unnecessary mortgages. I think it may be taken as established by the evidence that he had in his possession a sum of Rs. 2,108, which might have been applied in reduction of this decree debt. There is evidence that this Rs. 2,108 was family property. I do not say that evidence is conclusive, but the. presumption of law is that the money which stood in his hands was family property and I think it may be safely said that that presumption has not been rebutted. Then there is evidence that the net profit which he received from the family lands came to a sum of Rs. 2,324 per annum. There is no evidence as to what . became of this sum. There is no evidence that it was devoted to purposes of family necessity; and, although I do not suggest that the ejaman was under a liability to render an account for this Es. 2,324, I think that, if it was family-property as I am prepared to hold it was, it was either his duty to devote it to the discharge or reduction of the family debt or to show generally that it was utilized for family purposes.
4. Then there are various other matters which the learned Judge discusses. I do not suggest that these parate or cumulative effect of these, if they stood alone, would be sufficient to show dishonesty, or even incompetence on the part of the 1st defendant. But taking them in conjunction with what has been proved to have been his conduct with reference to the property which he purported to deal with as bis own and with the evidence as to thus substantial sum of Es, 2,324, although I am free to admit that the case is near the border-line. I am not prepared to say that the learned Judge was wrong in his view that the plaintiffs have made out a case for the removal of the first defendant from the. ejamanship., I do not know that it is necessary to say anything, with reference to the fact that the first defendant is 85 years of age, although it is possibly a matter which' one may legitimately take into consideration in considering the case as a whole. We have the fact that although the 1st defendant was present in Court during the hearing of the case, as Mr. Naraina Eau says, he did not go into the box and left the evidence to be given by his son who was I think admittedly managing the property on his behalf,. As the 1st defendant did not go into the box, that fact may not unnaturally give rise to the suggestion that he may be-I do not put it higher than that-physically or mentally incompetent to manage this property.
5. With regard to the authorities cited the only case to which I need refer is that of Thimmakke v. Akku (1910) I.L.R. 34 M. 481. In that case, as in this there was something more than unbusinesslike or improvident conduct on the part of the ejaman. In that case it was held that the conduct of the ejaman was inconsistent with a due regard to the interests of the family because he had gone into the box to support the alienation which the family impeached and which the courts held was bad as against the family. In one sense the present case may be said to be an a fortiori case, because here the ejaman has himself made an alienation of property and the courts have held that the property was not his, but belonged to the family. That, of course, is conduct which it is impossible to reconcile with interests of the family. This being my view with regard to the question raised in this appeal, I think the appeal should be dismissed with costs.
6. As regards Appeal 44 of 1911, as I said, there are two questions. As regards item 14 1 think the appeal fails.
7. Then there remains the question of limitation. The alienation was made on March 27th 1906, the suit was instituted in August 1909. The learned Judge held that the Article applicable was Article 91. It is argued on behalf of the plaintiffs that the appropriate article is Article 144. It is to be observed that this is not a case in which the plaintiff is seeking to set aside an instrument which he has either made himself or which has been made on his behalf. The plaintiffs are asking to have a transaction set aside on the ground that the party who entered in to the transaction was dealing with property which was not his. In other words the plaintiff's case is that this transaction, if void at all, was void from its inception. The authorities are to the effect that even if the 1st defendant in this case had been acting on behalf of the family Article 91 would not apply. See Unni v. Kunchi Amma I.L.R. (1890) M. 26 and Anantan v. Sankaran I.L.R. (1890) M. 101.With regard to the former of these cases Mr. Naraina Rau, has called our attention to a decision reported in Sivavadivaloo Pillai v.Pdnnamntal (1912) M.W.N. 383 in which the learned Judges declined to follow the decision in Unni v. Kunchi Amma I.L.R. (1890) M. 26 . They do not say that they distinguish the earlier case; they say they decline to follow it, which, I take it means that in the view of the learned Judges they considered that the decision was wrong. With reference to that case all that T desire to point out is that the case of Sivavadivelu Pillai v. Ponnammal (1912) M.W.N. 383, as I understand it, was a case in which a minor after he came of age was seeking to set aside an instrument which had been executed on his behalf. In the case before us the instrument which the family in effect seek to have set aside was not executed by them or on their behalf. Further, in the Madras Weekly Notes case the contest was not between Article 91 but between Article 144. and Article 44. I may also refer to the case of Chingacham Vitil Sankaran Nair v. Chinga Gopala Menon I.L.R. (1906) M. 18 and to the recent decision in Ganapathi Aiyar v. Sivamalai Goundan I.L.R. (1912) M. 575 which seem to proceed upon the principle that where a party seeks to set aside an instrument which he has himself executed or which has been executed on his behalf Article 91 applies. The case upon which the learned District Judge relies Govindsamy Pillei v. Ramasawmy Pilled I.L.R. (1908) M. 72 was a case in which a seller of property sought to set aside an instrument by which he purported to sell property to a purchaser. That was clearly a case where the instrument was impeached by the party who had executed it. The same observation applies to the case of Singarappa v. Talari Sanjivappa I.L.R. (1904) M. 349. I think Article 144 applies and that the plaintiffs are entitled to recover the lands if the Judge was right in holding that they were acquired out of family funds. As regards that I am not satisfied that the Judge was wrong in his view as to the source from which these properties were acquired. Therefore in my opinion (subject to any charge which may exist in favour of the 4th defendant) the plaintiffs are entitled to a decree for possession of items 12, 13 and 15.
8. As regards the question of charge I think the matter stands thus. The consideration for the instrument of transfer Exhibit XXXVI consisted in part of items which were binding on the family. In other words, when the instrument was executed, there was family necessity for raising money to the extent of Rs. 1569-4-0. The family had the benefit of this Rs. 1569-4-0, That being so, I think the 4th defendant is entitled in equity to say I have a charge on these lands, items 12, 13 and 15 to the extent of this amount. The decree will therefore have to be modified as I have indicated and the 4th defendant will be given a charge on items 12, 13 and 15 for the amount of Rs. 1,569-4-0. In this appeal (44 of 1911) there will be no costs for the 4th defendant either here or in the court below. The 1st defendant in appeal 44 of 1911 will get his costs on the sum of Rs. 2324. There will be no further order as to costs in this appeal. The interest will be set off as against the mesne profits.
9. The memorandum of objections is dismissed.
Seshagiri Aiyar, J.
10. I agree.