1. The plaintiff in the suit out of which this second appeal arises lost before the trial Count but succeeded on appeal. The relevant facts are these:
2. The plaintiff obtained a decree against defendant 3 for over Rs. 9000 in the Dharwar Sub-Court in the State of Bombay and obtained an attachment before judgment of lands belonging to defendant 3 in Harvi of the Harpanahalli taluk of the district of Bellary. The attachment was ordered on 12-11-1936 and was actually effected on 2-12-1936. Defendant 3 on 4-11-1936, sold these lands to defendant 1 by a registered sale deed, Ex. P-2, for Rs. 600. Defendant 1, in his turn, sold them to defendant 2 under Ex. D-1, a registered sale deed, for Rs. 800 on 30-7-1942. Then the plaintiff filed the present suit for a declaration that the sale deeds Exs. P-2 and D-1 were void, nominal, fraudulent and not binding on him. The finding of both the Courts below is that the two alienations were brought about fraudulently to defeat, in anticipation, the attachment the plaintiff contemplated and further that in spite of these sale deeds defendant 3 continued to remain in possession and collected the rent.
3. The points taken before me for defendant 2 the appellant, are firstly that the suit was barred by limitation and secondly that the suit, not having been instituted by the plaintiff in a representative capacity as required by Section 53, T. P. Act, ought to have been dismissed and thatthe application for amendment filed before the learned District Judge on appeal ought to have been rejected.
4. On the second of the points, I think that there is absolutely no ground for me to interfere with the discretion exercised by the lower appellate Court in allowing the amendment of the plaint sought, On the first of the points it is argued that the view of the lower appellate Court, that time began to run for the suit not from the date of Ex. P. 2 but from the date of the plaintiff's knowledge of that transaction, which admittedly is within 3 years of the institution of the suit, is erroneous. The point, however, is covered by direcv authority of this Court to be found in Madhayan Nair J.'s view in the ease reported in Narasimham v. Nara-yanarao : AIR1926Mad66 , Venkatasubba Rao J, in that case even went further than Madhavan Nair J. and took the view that the starting point of limitation was the date on which the plaintiff decided to exercise his option of avoiding the transfer and not the date of the transfer. Whether the latter view is right or not it is unnecessary for me to decide, although I may say that a Bench of the Bombay High Court in Abdullakhan Daryakhan v. Purshottam 49 Bom. L. R. 875; A. I. R. 1948 Bom 265, disapproved of a view to this effect which wag taken by Lokur J. in that Court. Even adopting the terminus a quo adopted by Madhavan Nair J., it is beyond doubt that the present suit is in time.
5. My attention has been drawn by the learned counsel for the respondent to the decision of the Privy Council in O. RM. O. M. SP. Firm. v. Nagappa Chettiar , where Sir George Rankin delivering the judgment of the Judicial Committee of the Privy Council observed as follows:
'The claim against the appellant bank is not that a breach of trust was committed by it but that it took the trust property by a transaction with Subrahmaniam which was a breach of trust on his part and with notice that it was a breach of trust. Their Lordships are of opinion that Article 36, Limitation Act, does not apply to the case and that it comes under Article 120 which prescribes a period of six years from the time 'when the right to sue accrues'. The question is whether time began to run from 10-2-1920 or from the date in 1929 when the plaintiff came to know that the money of the charities was set off against Subrahmaniam's debt to the appellant bank upon his overdraft. The suit having been brought in 1933, it is necessary for the plaintiff to be able to calculate the time from the later date. The language of Article 120 makea no referenoe to the knowledge of the plaintiff and is in this respect in contrast with that of the Articles, e. g., 90, 91, 92, 95, 96, 114. On the other hand, it was recognised by the Board in Mt. Bolo v. Mt. Koklan , that an infringement of the plaintiff's right or at least a clear and unequivocal threatto infringe it is necessary before time begins to run against the plaintiff under the Article. The appellate Bench acted upon a principle which has been accepted as applicable to this Article in a number of cases in several of tho High Courts, Venkateswara Aiyar v, Somasundaram Chettiar, 44 I. C. 551 : A. I. R. 1918 Mad 76, Viswanadham v. P. Narayanadas : AIR1928Mad837 , Lalsingh, v. Jaichand, 12 Lah. 262 : A. I. R. 1931 Lah. 70 , Mathurasingh v. Rama Rudra Prasad Sinha, 14 Pat. 824 ; : AIR1936Pat231 and Basa-vayya v. Bapanarao A. I. R. 1930 Mad. 173 : 120 I. C. 880. In the last mentioned case it was said that in cases in which the relief is sought on the ground of fraud, misconduct, mistake etc., it would appear that limitation is made to commence from the time when the fraud, misconduct or mistake becomes known to tho plaintiff, Such Articles as 90, 91, 92, 95 and 96 were mentioned by way of illustration of this principle, and it was considered that Article 120, being an omnibus one the general expression employed in Col. 3 is necessitated by the variety of suits coming within its purview, in some only of which would fraud, misconduct or mistake be part of the cause of action. It was accordingly held that it would be in consonance with the scheme of the Act if the right to sue should be deemed to accrue under Article 120 from the time of the plaintiff's knowledge of the fraud, misconduct or mistake where such a ground was the basis of the suit. Their Lordships can see difficulties in this reasoning as a matter of interpretation of the language of the statute and had the matter been res integra they are not certain that this interpretation would have prevailed with them. But the decisions in India have established a rule of limitation under Article 120 by which the plaintiff in the cases to which the rule applies cannot be debarred of his remedy unless with knowledge of his rights he has been guilty of delay. The decisions which have been referred to were given in oases where the plaintiff sought to set aside a decree passed against him, when a minor owing to the negligence of his guardian, or a mortgage of property which belonged not to the mortgagor but a temple, or a transfer by a debtor to defeat his creditors. The subject matter of the present suit is somewhat different but their Lordships are prepared to follow the principle of the Indian decisions in the present case and to hold that the suit is within time.'
There is also the decision of the Bombay High Court reported in Aldallakhan Daryakhan v. Purshottam, 49 Bom. L. R. 875 : A. i. R. 1948 Bom. 265 and referred to by me above in another connection which distinctly rules that a suit by a creditor under Section 53, T. P. Act 1882, for a declaration that a transfer by his debtor is intended to defeat or delay him and other creditors and is, therefore, not binding on them, is governed by Article 120 and not by Article 91, Limitation Act, and that in such a suit limitation starts against the plaintiff when be is fixed with the knowledge about the fraudulent character of the transaction which he seeks to impeach in his suit. The learned Judges have, in that case, farther observed, that the burden of proof ia on the defendant to show that the plaintiff had clear and definite knowledge of the fraud for more than the period of limitation and that the fact that the plaintiff knew some facts such as would raise a bare suspicion is not enoughevidence to discharge this onus. In my view the conclusion reached by the lower appellate Court is correct and this second appeal fails and is dismissed with costs.
6. Leave to appeal is refused.