1. The plaintiff are the appellants. The suit is for partition. The plaintiffs are brothers and sons of one Sundara Reddy and all the three formed a joint Hindu family. The suit A schedule properties were the ancestral properties of the plaintiffs and their father and the case of the plaintiffs is that the father was leading a reckless and immoral life, that there was no legal necessity for him to dispose of suit Items 1 to 6 of the A schedule properties to defendants 1 and 2 for Rs. 2,700 on 20-5-1964 and Items 7 to 9 to the third defendant for Rs. 500 on 29-6-1953 and Items 10 to 13 to the fourth defendant on 16-4-1941 for Rs. 100 and Items 14 to 16 to one Muthulakshmi Ammal on 11-8-1942 for Rs. 462/-. The plaintiff's case is that all the sales were made for very low prices that their father Sundara Reddiar died in 1957 that the sales were not for family necessity and therefore not binding on them. the plaint gave the date of birth of the first plaintiff as 12-7-1941 and of the second plaintiff as 29-1-1943. The present suit is filed for partition after setting aside the sales in favour of the defendants and for possession of their two-thirds share. The suit originally was filed against the four defendants and against Muthulakshmi Ammal mentioning her as the fifth defendant in forma pauperis on 23-11-1961. Later, on the appointment of a Commissioner to value the suit properties (sic) (the value) was found to exceed Rs. 5,000 and thereupon the plaint was returned on 10-6-1963 for presentation before proper court. In the meanwhile the plaintiffs compromised the suit with Muthulakshmi Ammal and consequent upon the said compromise and the deletion of the properties purchased by her the value of the suit properties came within the pecuniary jurisdiction of the District Munsif. The plaintiffs, therefore, represented the plaint in the same court (District Munsif Court) on 12-6-1963 and the plaintiffs paid the court-fee due on the plaint from the amount got by the sale to Muthulakshmi Ammal and the suit was filed as a regular suit against defendants 1 to 4. Thereafter the plaintiffs compromised with the fourth defendant and the suit was continued against defendants 1 to 3 and the plaintiffs prayed for the reliefs mentioned above.
2. The defendants filed a written statement contending that the sales by the plaintiffs' father were for legal necessity and for the benefit of the minor plaintiffs and that therefore those sales were binding on the plaintiffs. They further contended that the suit was not in time.
3. One issue No. 3, relating to the question whether the suit is in time the school register Exs. B-1 and B-2 showing the date of birth of the first plaintiff as 29-11-1940 and that of the second plaintiff as 17-5-1943 were produced. The trial court refused to accept the correctness of Exs. B-1 and B-2, but accepted the oral evidence as to the dates of birth of the plaintiff as given in the plaint. The contention was that the representation of the plaint on 12-6-1963 was not the same plaint which was presented on 23-11-1961, and consequently Sec. 14 of the Limitation Act was not applicable. The trail Judge overruled the objection and held that the suit is in time. The trail Court, however, held on the merits that the alienations in favour of the defendants are not for legal necessity and therefore no binding on the plaintiffs. In the result, the plaintiffs were granted a preliminary decree for their two-thirds share of Items 1 to 6, 7 to 9 and 10 to 13 by reason of the compromise.
4. Defendants 1 and 2 filed A.S. 29 of 1966 to the Subordinate Judge, Chidambaram. The appellate Court held that the entries in Exs. B-1 and B-2 showing the date of birth of the first plaintiff as 29-11-1940 and that of the second plaintiff as 17-5-1943, should have been accepted by the trial Court and further held that the suit is in time so far as the claim of the second plaintiff is concerned but is barred by limitation so far as the first plaintiff is concerned. As regards the binding nature of the alienations the appellate Court confirmed the decision of the trial Court. In the result, the second plaintiff alone was granted a decree for partition and possession of his one-third share in Item 1 to 6 and the claim of the first plaintiff was dismissed. The plaintiffs have filed the above second appeal.
5. The learned counsel for the appellants contends that the time taken between the date of the return of the plaint and the date of representation should be excluded under Section 14 of the Limitation Act, as the plaintiff must be deemed to have been prosecuting with due diligence another civil proceeding. What happened in the present case is that the suit against the five defendants was originally filed on 23-11-1961 in the District Munsif Court. Later a Commissioner was appointed to value the suit properties and as the value of the suit properties was found to exceed Rs. 5,000 the plaint was returned on 10-6-1963 for presentation to the proper court. Meanwhile the plaintiffs appeared to have compromised with the fifth defendant and consequent upon the said compromise the properties purchased by her were deleted and the value of the suit against the remaining for defendants fell within the pecuniary jurisdiction of the District Munsif Court and the plaint was represented on 12-6-1963 in the same court. The question was whether under the above circumstances Section 14 of the Limitation Act can be invoked. In Nayinakamma v. Madureeswara : (1895)5MLJ58 , it was held in identical circumstances that the plaintiff was not entitled to the benefit of Section 14 of the Limitation Act. The principle upon which the above decision is based is that the Court which had no jurisdiction to entertain a suit cannot pass any order in the suit beyond directing the plaint to the presented to the proper court. The only direction that could be given is with reference to the costs incurred upto the time of the return of the plaint. The date of suit being the date when the plaintiffs presented to the court the plaint which accorded with its jurisdiction. Instead of representing the plaint to the Subordinate Judge in pursuance of the return, the plaintiffs abandoned a part of their claim so as to bring it within the jurisdiction of the District Munsif Court and represented the plaint to the District Munsif Court. In the circumstances, the date of the representation of the plaint on 12-6-1963 must be taken as the date of the filing of the suit and not on 23-11-1961 on which date the suit was originally filed. The position is entirely different when the court was competent to receive the plaint as originally filed but required the plaintiffs to pay an additional court-fee and the plaintiffs choosing to give up a portion of the claim and confining their reliefs to the court-fee already paid. In such a case, the court had originally the jurisdiction to entertain the suit. But in present case when the Court held no jurisdiction to entertain the suit and returned the plaint it is as if there was no plaint in existence in that court and the representation in the same court after giving up a portion of the claim cannot be treated as having been filed on the original date of presentation of the plaint. The judgment in Thadi Chandrayya v. Vaitla Seethanna : AIR1940Mad689 is also to the same effect. That being the correct position, the learned Judge was right in holding that the suit is barred so far as the first plaintiff is concerned and is in time so far as the second plaintiff is concerned. The learned counsel for the appellants further contended that the alienations in favour of the respondents are not binding on the plaintiffs. The courts below have concurrently found that the alienations are not binding on the plaintiffs. That being a question of fact is binding on me. In the view that I have taken on the question of limitation, the judgment and decree of the lower appellate Court is correct and the second appeal fails and is dismissed. There will no order as to costs. No leave.
6. Appeal dismissed.