Allahabad High Court
Sita Ram Singh And Anr. vs Cheddi Singh And Ors. on 4 June, 1924
Equivalent citations: 83IND. CAS.1052
JUDGMENT
1. This is a plaintiffs' appeal arising out of a suit brought by two plaintiffs to set aside a deed of transfer by their father on the, ground that there was no legal necessity for it. The plaintiffs' case was that the elder plaintiff had attained majority within three years of the date of suit. The pleas in. defence amongst others were that the elder plaintiff was more than 21 years old at the time of the institution of the suit and that the younger plaintiff had not been born on the date of the alienation at all.
2. Both the Courts below have dismissed the claim. The findings are that plaintiff No. 1 was more than 21 years of age at the time of the institution of the suit and that the plaintiff No. 2 had not been born on the date of the alienation.
3. It is contended in second appeal before us that inasmuch as the plaintiff No. 1 had a right to challenge the alienation and the plaintiff No. 2 was born while that right was subsisting, the plaintiff No. 2 also acquired the right to challenge the alienation and that so far as he is concerned his claim cannot be barred by time if three years after his attaining majority have not expired. We are unable to accept this contention.
4. Although it cannot be disputed that a subsequently born Hindu son has a right to avoid an alienation which took place at a time when other members of the family, not parties to the deed, were alive, it does not follow that he has a fresh start for the purpose of limitation from the time of his birth. When an alienation is made which is not justified by necessity, a cause of action arises in favour of the other members to have it set aside and to recover possession from the alienee, but there is only one cause of action in favour of the other members of the family. Successive causes of action cannot arise as new members are born year after year. If the contention of the appellants were to be accepted the result would be that in many cases such suits would never become barred by time inasmuch as new members may be born before the minority of an elder member is over.
5. The learned Advocate for the appellants has relied on the cases of Tulshi Ram v. Babu 10 Ind. Cas. 908 : 33 A. 654 : 8 A.L.J. 733 and Bhup Kuar v. Balbir Sahai 64 Ind. Cas. 885 : 19 A.L.J 978 : 44 A. 190 : (1922) A.I.R. (A) 342 but both these cases, are distinguishable inasmuch as no question of limitation arose in those cases. On the other hand it has been laid down in several Oudh cases vide Oudh Behari Singh v. Suraj Bali 61 Ind. Cas : 801 : 8 O.L.J. 205 Chokhey Singh v. Hardeo Singh 64 Ind. Cas. 757 : 8 O.L.J. 667 : 24 O.C. 330 and Sheoambar Khan v. Ratipal Singh 65 Ind. Cas. 404 : 8 O.L.J. 679 and which view has been followed by this Court in several unreported cases, that the younger members of the family born subsequent to the alienation cannot get an extension of the period of limitation owing to their own minorities. We are of opinion that this is a correct statement of the law.
6. We accordingly dismiss this appeal with costs including in this Court fees on the higher scale.