1. The plaintiff's suit is for a declaration that the decree and execution proceedings in O.S. No. 32 of 1907 are not binding upon him and that his share of the family property did not pass to the vendee under the Court-sale and for possession and incidental reliefs. The Subordinate Judge dismissed the suit as being barred by limitation. On appeal the District Judge of Coimbatore held that the plaintiff's suit was barred under Article 12 of the Limitation Act as regards items 1 to 4, and that the suit was not barred in respect of item No. 5, and remanded the suit for trial of the issues relating to item No. 5. The plaintiff has preferred this second appeal.
2. The facts are, the plaintiff and the 2nd defendant are the sons of the 1st defendant. Items 1 to 4 were sold in execution of a money decree obtained against the 1st defendant in O.S. No. 327 of 1907 and were purchased by the 3rd defendant who took delivery of them in August, 1908. The 5th item was sold by the 1st defendant to one Rangaswami Naicken by a registered sale-deed dated 2nd April, 1907 and defendants 8 to 10 who purchased it from Rangaswami Naicken have been in possession from 21st June, 1909. Neither the plaintiff nor the 2nd defendant were parties to O.S. No. 327 of 1907. The plaintiff attained majority recently and has brought this suit within 3 years after attaining majority. The question is whether his suit is barred by limitation. So far as item. 5 is concerned the suit is not bar-red by limitation as it has been brought within 3 years of the plaintiff attaining majority. It has been recently held in Jawahir Singh v. Udai Parkash I.L.R. (1925) A 152 that a suit brought by the son within three years of his attaining majority to avoid the sale effected by his father is not barred by limitation although the elder son attained his majority more than three years earlier and had taken no steps to question the alienation.
3. The question in this appeal is what is the article of the Limitation Act applicable to a suit brought by the son after attaining majority for setting aside the sale of his share in Court-auction in execution of a decree against the father.
4. It is well settled that a father can sell the family property including the share of his sons for an antecedant debt and the sons can challenge the alienation by a suit on the ground that the debt was incurred by the father for immoral or illegal purposes. If they do not challenge the alienation by a suit or if they fail to establish that the debt of the father was incurred for illegal or immoral purposes, the sale would be good to the extent of their shares as well. It is also well settled that a person who obtains a money decree against him can bring the family property to sale without impleading the sons, and the auction-purchaser would get a good title to the property sold including the shares of the sons who are not parties to the decree. it is open to the sons to have the sale set aside on the ground that the debt for which their shares were sold was incurred by the father for illegal or immoral purposes; but so long as they do nor challenge the sale by a suit, or if they bring a suit and fail, the auction-purchaser would get a good title to the property purchased by him. Vide Brij Narain v. Mangal Prasad I.L.R. (1923) A 95 , Nanomi Babnasin v. Modhun Mohun I.L.R. (1885) C 31 : L R 13 1 A 1 (P C) and Sripat Singh Duyar v. Prodyot Kumar Tagore I.L.R. (1916) C 524 : 32 M L J 133 (P C) .
5. If the auction-purchaser buys the shares of the sons in execution of the decree against the father, can they claim their shares without setting aside the sale? If the alienation is void, no doubt, the sons need not sue to set aside the sale but the sale is not void but is only voidable at the suit of the sons. So long as it is not avoided the sale would hold good. That being so, the sons are bound to set aside the sale if they want to recover their share of the family property. Article 12 begins as follows:
To set aside any of the following sales: (a) sale in execution of the decree of a Civil Court.
6. If a sale in execution of a decree by a Civil Court is to be set aside, a suit will have to be brought within one year of its confirmation or of its becoming final and conclusive. It is urged for the appellants that if the son shows that the debt was incurred for illegal or immoral purposes the Court would hold that the son's share is not bound and, therefore, the proper article of Limitation Act applicable to the case would not be Article 12. When we have to apply the Law of Limitation we must look at the pleadings and not at the result or the suit. Could the plaintiff get back his share of the property without setting aside the sale? The case would be different if the sale was void in which case the plaintiff need not pray for setting it aside. But as I have already observed the sale is not void. It can only be avoided on the proof of certain facts by the plaintiff and only so far as his share is concerned. The case in Bijoy Gopal Mukerji v. Krishna Mahishi Debi I LR (1907)C 329 has no application to the present. It was held in that case that a reversioner could sue for possession of the property sold by a Hindu widow within twelve years of her death. The alienation of a widow stands on a different footing from the sale by a Hindu father. The widow can give a good title if the consideration for the sale be for any of the purposes which would bind the reversioners and so long as she is alive, the reversioners are not bound to sue to set aside the alienation; but the moment the widow dies the reversion opens and the nearest reversioner is entitled to sue for possession of the property and need not seek to set aside the alienation which is not binding on him. The reversioner is not affected by anything that the widow may do during her lifetime; if her alienation is such as would bind the reversion it cannot be impeached; if it is not, the reversioner need not sue to have it set aside. The reversioner has not a present interest in the property in the possession of the widow. It is only after the widow's death that the nearest reversioner would be entitled to the property. The auction-sale of family property covers not only the father's share but the son's share as well and unless the son challenges the sale within the period allowed by law, the sale would become unassailable.
7. In considering what article of the Limitation Act should be applicable to cases of this kind, the Court should have regard to the observations of their Lordships of the Privy Council in Malkarjun v. Narhari I.L.R.(1900) B 337
The Limitation Act protects bona fide purchasers at judicial sales by providing a short limit of time within which suits may be brought to set them aside. If the protection is to be confined to suits which seek no other relief than a declaration that the sale ought to be set aside and is to vanish directly some other relief consequential on the annulment of the sale is sought, the protection is exceedingly small. What is the justification for refusing to construe Article 12(a) according to its obvious meaning whenever a suitor goes on to pray for that relief which is the object, perhaps the only object, of setting aside the sale? Their Lordships hold that both the letter and the spirit of the Limitation Act require that this suit, when looked on as a suit to set aside the sale, should fall within the prohibition of the article.
8. In Rhola Jha v. Lala Kali Prasad (1916) 1 Pat L J 180 it was held that the period of limitation was one year under Article 12 of the Limitation Act for a suit for the redemption of the son's share of the family property sold in execution of a mortgage decree against their father. Roe, J. observes that
if a suit to redeem is maintainable, the first step necessary for redemption is a declaration that the sale should be set aside.
9. The plaintiff cannot get possession without getting the sale set aside and the article applicable to the case is Article 12., In this view, the judgment of the learned District Judge is right; the second appeal fails and is dismissed with costs.