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Coming to the second question, the plaintiff has filed a suit for declaration based upon title that is evident from the averments made in the plaint reproduced above. The plaintiff has pleaded that cause of action has arisen in the year 1993 whereas defendant has asserted that the suit is barred by limitation. The defendant has not referred to any provision of law under which it is barred by limitation. The learned Trial Court relied upon Article 109 of the Limitation Act to dismiss the suit. The judgments referred to by the learned counsel for the plaintiff in Labhu Ram vs. Smt. Bhagwanti, 1996 PLJ 522, Annasaheb Bapusaheb Patil vs. Balwant Bapusaheb Patil, AIR 1995 SC 895 and Sewa Ram and others vs. Jai Lal Puri & Another, 1989(1) Current Law Journal 286 were found to be not applicable on the facts of the present case as the said authorities dealt with Article 65 of the Limitation Act "which deals with adverse possession". It was held that in the present case Article 109 of the Limitation Act is applicable and not Article 65 of the Limitation Act. The learned First Appellate Court set aside the judgment of the trial court and held that the cause of action has arisen to the plaintiff when he came to know about the alienation. The question to be examined is whether the suit can be said to be barred by limitation in terms of Article 109 of the Limitation Act or any other provision of law or that the said suit is within limitation in terms of Article 65 of the Limitation Act.

In Chintaman Balwant Dharmadhikari's case (supra) and Bindeshri Upadhya's case (supra), the Court has held that Article 126 of the Limitation Act, 1908 corresponding to Article 109 of the Limitation Act, 1963 contemplate that in the case of an alienation, where the alienee has taken possession of the property, the limitation only runs from the date when the alienee takes possession. Son's knowledge of alienation by his father ordinarily arises when he sees the alienee in possession; in case where the alienee never gets possession, no limitation can arise under Article 126 of the Limitation Act, 1908. In the present case, the alleged alienee is a coparcener, therefore, his possession is not the one which furnishes cause of action to the plaintiffs as the possession of one of the coparceners i.e., defendant, is possession on behalf of other coparceners as well.

Mothika Mutyalu's case (supra) deals with the question where the coparcener was not born when alienation took place. It was held that section 6 of the Limitation Act, 1963, would not be applicable in respect of after-born member of Hindu joint family to challenge alienation.

In Sudarshan Prasad's case (supra), the question arose whether the alienation by grand-father would fall within Article 109 of the Limitation Act. It was held that expression 'father' as used in Article 109 of the Limitation Act, could in an appropriate case include grand-father and even a great grand-father. It was also held that if Article 109 of the Limitation Act, 1963, did not apply then the appropriate Article to be applied to a suit of this kind was Article 65 of the Limitation Act.

In the present case, Article 109 of the Limitation Act is not applicable as there is no challenge to the alienation affected by Shiv Dev Singh at the instance of the plaintiff. The plaintiff has asserted such sale deeds to be null and void. Article 109 of the Limitation Act would be applicable only if there is a challenge to alienation of ancestral property. The challenge within the scope of Article 109 is when the right of Karta to effect sale is not disputed but action is challenged either for want of legal necessity or consideration or for any other reason. It need to be noticed that sale by Shiv Dev Singh in favour of his wife's sister is undisputedly without any legal necessity. There is no finding that sale was for consideration. Thus, the nature of transaction of sale in favour of Pritam Kaur is nothing but gift. The suit pertaining to challenge to the gift deed was allowed by the learned First Appellate Court, affirmed by this Court and Supreme Court. Therefore, the reasons for ignoring the gift are pari materia applicable to the present suit claiming possession by ignoring the sale deeds.