Sinha, J.:— This is a plaintiffs' appeal and arises out of a suit for the recovery of Rs. 752-12-0 by way of refund of part of the sale consideration.
On the 19th of February, 1930, a lady, Mst. Zakia Khatun, sold 3 biswas and 6 biswansis of land situate in mahal Khalsa Uda of mauza Adalpur to one Sahu Ram Kumar, the father of the appellants.
On the 29th of July, 1932, mutation with regard to this was effected in favour of Sahu Ram Kumar, although it must also be borne in mind that he was the lambardar of the village and must Page: 613have been in possession of this property even before mutation, though, certainly, in a different capacity. It appears that a portion of this property belonged to a man named Tyeb Husain and he sent a notice to Sahu Ram Kumar conveying him a warning as regards the title of Mst. Zakia Khatun. Tyeb Husain wrote to say that she had no title to the portion of the property which belonged to him. Notwithstanding the warning the appellants' father Sahu Ram Kumar, purchased the property on the 19th of February, 1930, as mentioned above and secured mutation.
Tyeb Husain brought a suit sometime in 1928 against Mst. Zakia Khatun for the establishment of his title. He succeeded and obtained possession on the 12th of December, 1930. Shortly after this, that is on the 29th of July, 1932, Sahu Ram Kumar died leaving his five sons who are the appellants before me.
On the 19th of September, 1934, in pursuance of the decree obtained by Tyeb Husain, there was a correction in the khewat. The name of Sahu Ram Kumar was expunged and that of Tyeb Husain entered over the share to which he had laid claim and in respect of which he had sent a notice to Sahu Ram Kumar.
The present suit was instituted on the 28th of October, 1941, for refund of the sale consideration. The courts below have dismissed it on the plea of limitation. The only question which, therefore, falls for consideration is whether the suit is barred by limitation.
Before proceeding further the ages of the plaintiffs must be mentioned. The first son, Sahu Avdesh Kumar, attained majority on the 7th of December, 1938. The second son, Sahu Ramesh Kumar, became a major on the 2nd of November, 1939. The remaining three sons, Sahu Suresh Kumar, Sahu Kanti Saran and Mahesh Kumar are still minors.
The courts below have applied article 62 of the Limitation Act. They have held that even if article 116 applied the suit would still be barred by limitation. Article 62 provides three years from the date when the money is received. Article 116 provides six years and refers to article 115. Article 115 gives three years from the date when the contract is broken or, where there are successive breaches, when the breach in respect of which the suit is instituted, accrues or, where the breach is continuing when it ceases.
It appears to me that the courts below did not properly appreciate the legal position in this case. When Sahu Ram Kumar made the purchase on the 19th of February, 1930, he must be deemed to have made it in his capacity as the manager of the family.
The representative character of a father in a joint Hindu family has been defined in the Full Bench case of this Court in Hori Lal v. Munman Kunwar (1912) I.L.R 34 All. 549. At page 560 Banerji, J., made the following observation: “What is required is that all persons whose interests are to be affected by the suit are sufficiently and substantially represented. In the case of a joint Hindu family, all persons interested are represented in the suit by the manager and are substantially parties to it through the manager.” That was a case of suit. On principle, there is no difference between a suit and another transaction. The presumption must be that Ram Kumar was joint with his sons. He must be deemed to have acted not only on his own behalf but also on behalf of his sons. It may be that the suit qua Ram Kumar might have been barred by limitation, but every member of a joint Hindu family has an independent right, for the purposes of the Limitation Act, to bring a suit. This principle does not detract from the representative character of the father. The principle of law is this. If Ram Kumar had a right to bring a suit and if other members of the family were either living at that time or came into being later on and acquired the right to bring the present suit before the complete extinction of that right under the Limitation Act, that right will continue to exist up to the date of the majority of the youngest of the sons of Sahu Ram Kumar. This principle has been recognised in the case of Bhup Kuar v. Balbir Sahai (1922) I.L.R 44 All 190. It was followed in a later decision of this Court in Sheonandan Prasad v. Tahiran Bibi (1930) I.L.R 52 All. 768.
In this view of the case it is not necessary to enter into a detailed discussion of article 62 or article 116 of the Limitation Act. I shall, however, out of deference to the arguments of Mr. Mushtaq Ahmad, the learned counsel for the respondents, address myself to this question. I have come to the conclusion that even under these two articles the suit is not barred by limitation.
Even if there was no warranty of title provided by the sale of the 19th of February, 1932, there must be deemed to be an Page: 615implied warranty, vide Hamoant Rai v. Chandi Prasad (1929) I.L.R 51 All. 651 and Muhammad Siddiq v. Muhammad Nuh (1930) I.L.R 52 All. 604. This warranty of title armed the plaintiffs with the right to bring the present suit. This right could not be taken away from them even if Sahu Ram Kumar had knowledge of the defective title of his vendor. [Nerval Kishore v. Sarju Ram Sahu (1932) I.L.R 54 All. 774.] This case goes to the length of holding that, unless there is an express covenant by which the vendee had relinquished his right, which the warranty of title, express or implied, gives him, the right remains with him.
Now the second question which awaits consideration is if this warranty of title gave Sahu Ram Kumar and gives his sons the right to institute a suit, when did this right accrue and is it a right subsisting or has it been lost by lapse of time? In considering this case it must be clearly understood that Sahu Ram Kumar was the lambardar of the mauza. He was in possession of the entire share including the share in dispute. So long as he was in actual possession of the property, even though his legal right to remain in possession may have been lost either by some decree of a court or some other judicial process, limitation will not run against him.
It was held in the case of Muhammad Raza Ahmad v. Zahoor Ahmad (1930) I.L.R 52 All. 979 by a Bench of this Court: “that the only cases in which lapse of time not only bars the remedy but extinguishes the title of a claimant are those provided for by section 28 of the Limitation Act.” In that case the cancellation of a certain sale was sought by the minors three years after the execution of the deed. It was pleaded that the suit was barred by article 91 of the Limitation Act. Both the courts below had, while holding that possession had not been disturbed, held that the suit was barred by limitation. Mr. Justice Niamatullah, delivering the judgment of the case made the following observation at page 1418: “If the view taken by the lower appellate court be correct, many anomalous consequences would follow. For example, if the vendee sues before the expiry of three years, he has to face the contest regarding the validity of the transfer, an issue which, in many cases, may create difficulty; but if he waits for three years and sues for possession within twelve years, he can recover possession from his adversary, who exhypothesi cannot call in question the validity of the transfer, though he has been Page: 616in possession all the time that has elapsed since the date of the transfer. In other words, limitation can be successfully pleaded against a defendant whose title is to be taken as extinguished by lapse of time. This view is, however, opposed to a number of decided cases, including the decision of the Privy Council in Sri Kishan Lal v. Kashmiro (1916) 20 C.W.N 957.” The ratio of the decision appears to be that so long as the person whose rights have been infringed, remains in possession of the property, limitation does not begin to run against him.
On the principle enunciated above so long as Sahu Ram Kumar remained in possession of the property whether in his own right or as a lambardar, in which capacity he must be deemed to have been holding as a representative of the entire coparcenary body including himself he need not have brought this suit. It is when actual dispossession takes place that the real infringement comes into being and it is only then that limitation begins to run.
I have, therefore, come to the conclusion that the suit was, viewed from any point of view, clearly within time and the courts below had fallen into an error in holding that it was barred by limitation.
I, therefore, set aside the decrees of the courts below and send the case back to the court of first instance through the lower appellate court for trial according to law.
Costs to abide the event.
As I have disagreed with the court below on a preliminary issue the court fee paid by the appellants shall be refunded.
Leave to appeal under the Letters Patent is refused.