Alfred Henry Lionel Leach, C.J.
1. The main question in this appeal is whether a suit filed by a decree-holder under the provisions of Order 21, Rule 63, Civil Procedure Code, to declare his right to attach certain property arrests the running of limitation in favour of a person in adverse possession of the property.
2. The parties are Mohammadans and are relations. The suit out of which this appeal arises was filed in the Court of the Subordinate Judge of Chingleput by A. Abdul Gaffoor, who died during its pendency. Thereupon his widow, Fatima Bibi, and his daughter, Bathla Bibi, continued the suit as his legal representatives. The first defendant is the brother of the deceased plaintiff and the second defendant is his sister. The second defendant is the widow of one Dastagiri Sahib, who died in the month of February, 1920. Dastagiri was also survived by a son Mohamed Ghouse, and a daughter, Mahaboobi. On the 27th November, 1933, A. Abdul Gafoor obtained a decree against the estate of Dastagiri for the payment of Rs. 8,215-10-8. In execution of that decree he attached the properties with which this suit is concerned. The attachment was objected to by the first defendant on the ground that the properties had been conveyed to him by the second defendant on behalf of herself and her children by two conveyances, one dated the 24th July, 1923 and the other dated the 24th June, 1924. The first defendant's objection to the attachment was upheld and as the result, this suit was filed on the 24th July, 1935. The plaintiffs averred that the conveyances to the first defendant were sham transactions and therefore of no legal effect. The Subordinate Judge held that they were supported by consideration and were entered into bona fide.
3. The consideration of the conveyance of the 24th July, 1923, was stated to be Rs. 10,000 of which Rs. 1,250 was paid to the widow in cash and the balance paid in discharge of debts due by Dastagiri's estate on a mortgage and a promissory note. The consideration for the conveyance of the 24th June, 1924, was Rs. 7,000, of which Rs. 1,000 was paid in cash to the widow and Rs. 6,000 in discharge of a mortgage debtowing by the estate. The Subordinate Judge was also of the opinion that the first defendant had obtained a title to the properties by adverse possession. Consequently he dismissed the suit.
4. We agree with the Subordinate Judge that the conveyances of the properties in suit to the first defendant were bona fide and that the consideration passed; but this does not mean that the first defendant obtained a complete title to the property. He undoubtedly did obtain a title to the one-eighth share of the second defendant, but he obtained no title to seven-eighths of it, which represented the interests of the son and the daughter. The second defendant was not the lawful guardian of the son and daughter and had no power to sell their interests in the estate. Therefore, so far as the interests of the son and daughter were concerned, the conveyances were entirely inoperative, and the seven-eighths of the property remained the property of the son and daughter and liable for attachment in execution of the decree passed against them.
5. This means that if the first defendant has not been in possession of the property adverse to the son and daughter for a period of twelve years before suit, the plaintiffs are entitled to a declaration that they have a right to attach seven-eighths of it in execution of their decree. The suit was filed within twelve years of the 24th July, 1923, the date of the first conveyance.
6. It has been decided in this Province that an order of attachment does not interrupt the possession of a person holding adversely to the true owner. This was held in 1901 in Seetharama Reddi v. Venku Reddi (1901) 11 M.L.J. 344 and in 1925 in Ranganalha Iyer v. Srinivasa Iyengar : AIR1926Mad42 . In Vasudeo Almaram Joshi v. Eknath Balkrishna Thite I.L.R.(1910) 35 Bom. 79 the Bombay High Court expressed an opinion to the contrary. This conflict considered by a Full Bench of this Court in Dharapuram Janopakara Nidhi, Ltd. v. Lakshminarayana : AIR1939Mad456 , and the Full Bench upheld the opinion expressed in the two earlier decisions of this Court. While an order for attachment does not interfere with adverse possession, the filing of a suit for a declaration of the right to attach property against the person in possession is another matter.
7. On behalf of the defendants-respondents it has been suggested, that in the judgment of the Full Bench in Dharapuram Janopakara Nidhi, Ltd. v. Lakshminarayana if. was held that the filing of a suit does not interrupt possession. This argument is based on the following extract from the judgment, which was delivered by Varadachariar, J.:
The suit is often but a step to enable the decree-holder to bring the property to sale; if by reason of the extinction of the judgment-debtor's title before the sale, there would be nothing to be sold, a declaration in the decree-holder's favour in the suit under Order 21, Rule 63, will not only be futilc, but sometimes even be mischievous, as it may mislead an unwary purchaser into thinking that he was buying a subsisting interest.
These observations have to be read in connection with what goes before and what comes afterwards. Immediately before are these observations:
But the suit under Order 21, Rule 63 is in form and in substance a declaratory suit and it seems i me that it will be an unreasonable exercise of discretion by the Court to make a declaration, in such a case of the decree-holder's right to attach if the period of limitation of 12 years had expired between the date of the attachment and the date of the institution of the suit unless the property had already been sold in time.
Immediately after the passage relied upon by the defendants-respondents, Varadabariar, J., said that 'in this view ' he was inclined to agree with Seetharama Reddi v. Venku Reddi (1901) 11 M.L.J. 344 and Ranganatha Iyer v. Srinivasa Iyengar : AIR1926Mad42 in preference to Vasudeo Almaram Joshi v. Eknath Balkrishna Thite I.L.R. (1910) 35 Bom. 79 and Pandiyan Pilial v. Vellayyappa Rowther : AIR1918Mad572 , where the Bombay opinion had been accepted. The question which was before the Full Bench was whether an order for attachment interfered with possession. The Court was not considering the question now under discussion, but the concluding portions of the judgment in the Full Bench case when read together indicate that if a suit is filed before the 12 years period of limitation has expired the Court is entitled to declare the rights of the parties at the date of the suit.
8. In Seelharama Reddi v. Venku Reddi (1901) 11 M.L.J. 344 a prescriptive right had been acquired before the institution of the suit, which was also the case in Ranganatha Iyer v. Srinivasa lyengar : AIR1926Mad42 . A decree-holder whose attachment has been raised is given by the statute the right to institute a suit for a declaration of his right to attach, and the declaration must have regard to the rights of the parties at the date of the institution of the suit. It would be a negation of the right given by Order 21, Rule 63, to hold that, when the suit has been filed in time, the person wrongly in possession of the property can get a title by adverse possession after the institution of the suit. In our opinion, the institution of the suit arrests the running of time in favour of the first defendant. This means that the plaintiff-appellants are entitled to a declaration of their right to attach seven-eighths of the property in suit.
9. This does not, however, dispose of the suit because the first defendant's case is that he discharged the debts owed by the estate and therefore is in equity entitled to a charge on the properties in his possession for the total amount paid by him. An issue was framed on this question, but in view of the dismissal of the suit by the Subordinate Judge on the grounds indicated, it was not necessary to decide this question. It is now necessary to decide it and we call for a finding on the last part : of the second issue, which relates to this question. The Subordinate Judge's, finding, which will be based on the evidence on the record, will be submitted to* this Court within one month of the receipt by him of this order. Seven days will be allowed for the filing of objections.