1. This appeal has been referred to a bench by Pandalai, J. The plaintiffs, two brothers, sued for a declaration that the sale executed by their mother, defendant 2, to defendant 1 was not valid. It was found that plaintiff 1 had attained majority more than three years before the suit was filed, and accordingly the District Munsif dismissed the suit. The District Judge confirmed the finding of fact and that is not now disputed. In this Presidency it has been settled by the Pull Bench decision, Doraisami Sorumadan v. Nondisami Saluvan A.I.R. 1915 Mad. 1201 that in circumstances like the present, if one brother comes of age and allows three years to pass before suing, time has run against the younger brother also. But the District Judge refused to follow this ruling, because of a Privy Council ruling in Jawahir Singh v. Udai Parkash A.I.R. 1926 P.C. 16. Hence the appeal.
2. In that case the two younger sons sued to set aside an alienation joining as defendants their father and their elder brother who bad allowed three years to pass without suing. As the father was still living, this elder brother had never been manager of the family so as to be able to give a discharge and on the facts, Section 7, Limitation Act, could not possibly apply. This was conceded by Mr. Dube who appeared for the appellant alienee:
The father was alive when the suit was brought. Fateh Singh had not been managing member; it is conceded therefore that the failure of Fateh Singh to bring a suit probably did not render the present suit barred. The sale was however valid...p. 153.
3. On p. 155 the High Court judgment and decree under appeal are summarised and then the judgment proceeds:
From this decree Jawahir Singh has appealed to His Majesty in Council. The same contentions that were urged in the High Court have been advanced before the Board.
4. This cannot mean that Mr. Dube urged contentions about limitation for he had conceded the point. It can only refer, as clearly shown by the subsequent paragraphs, to the fact that he still contended that the sale was valid. Its validity is discussed down to the bottom of p. 157 and then there is the one short sentence 'on the question of limitation their Lordships concur with the High Court.' Upon this authority the reporter in the Allahabad series has stated in the head-note, p. 152, that a suit brought by a younger son is not barred although the elder son attained majority more than three years earlier and had taken no steps to question the alienation. No mention is made of the vital circumstance that the father was still alive, and then the note proceeds 'semble Vigneswara v. Bapayya (1910) 16 Mad. 438 and Doraisami Sorumadan v. Nondisami Saluvan A.I.R. 1915 Mad. 1201 disapproved.' But there was no reason to suppose that it was overruled. The Madras ruling proceeds apparently upon an irrefragable line of, logic, and if the Judicial Committee detected a flaw in that line it would have set it forth in terms. The fatherless Hindu son becomes manager in law and presumably manager in fact when he attains majority (cf. Mulla's Principles of Hindu Law, Section 519), and as such he is within the mischief of Section 7, Limitation Act. If the Judicial Committee held that he does not become the manager, or that as manager he cannot by himself dispute the alienation, it would undoubtedly have so stated in terms The short sentence concurring with the High Court obviously means no more than that what Mr. Dube conceded was agreed to - the suit was not barred by limitation. It is really more a question of fact than of law. In Gangadayal v. Mani Ram (1911) 31 All. 156 which was relied upon by the High Court in the case under appeal in Jawahir Singh v. Udai Parkash A.I.R. 1926 P.C. 16 it is found on p. 160 that there is nothing in the present case to show that plaintiff 1 ever acted as manager, and that being so it is not clear that he ever came within the terms of Section 7, Limitation Act. Similarly according to the facts in Jawahir Singh v. Uadi Parkash A.I.R. 1926 P.C. 16 the elder son was never manager prior to his filing the suit. Pandalai, J. obtained a copy of the judgment under appeal in Jawahir Singh v. Udai Parkash A.I.R. 1926 P.C. 16, but it does not carry the matter further. If the Privy Council laid down the law as set forth in the head-note, it is clear without the aid of this judgment, and if, as we hold, that it merely affirmed Mr. Dube's concession, then there is no need to go into details.
5. It was finally urged upon us that holding this view we should call for a finding as to whether in fact the elder son ever assumed the management. It is too late to raise that question now. In law he was entitled to be manager and there is nothing in the record to rebut the presumption that he became manager. We agree with the District Munsif, and order that his decree be restored, reversing that of the District Judge. Costs to appellant here and below. We may add that our view follows that in Surayya v. Subbamma A.I.R. 1928 Mad. 42; Mannarswami Ayyar v. Ramaswami Nayakan A.I.R. 1929 Mad. 394; Luta Ram v. Shiv Ram A.I.R. 1929 Lah. 14 and Murlidas v. Shivaram Sadasiv A.I.R. 1929 Bom. 382.