J.W. Colvile, J.

1. The suit out of which this appeal has arisen concerns a moiety of the undivided share of one Bhugwan Lall Sahoo, in certain Immovable property situate in Zilla Sarun. Bhugwan Lall Sahoo, who died in 1860, was a member of a Hindu family, which was descended from a common ancestor named Deepa Sahoo, and which was governed by the law of the Mitakshara, the general law of the province in which it was domiciled. He died childless, but left two widows, Moheshee and Parbuttee. They therefore would have been his general heirs had he been wholly separate in estate; and were in any case entitled to such part of his succession as had been acquired, or was held by him as separate estate. On the other hand, if the status of the family continued at the time of his death to be that of a joint and undivided Hindu family, his interest in the joint family property survived to his male coparceners. The only persons who answered that description were Sudaburt Pershad and the plaintiff Hurreenath Pershad. They, in some of the proceedings, are called his nephews, but according to the pedigree set out in the appellants case, and apparently proved in the cause, they were his first cousins, the sons of two different uncles.

2. It must now be taken to have been conclusively determined that Bhugwan, at the time of his death, though entitled to certain subsequent acquisitions as separate estate, was, as to all the properties acquired by the family in the name of any of its members before the year 1846, joint in estate with Sudaburt and Hurreenath, and accordingly that his share in those properties became vested by survivorship in them. This question was first litigated in a suit brought by Sudaburt in 1861. The principal defendants to that suit were the widows. The judgment of the Zilla Judge, confirmed on appeal by the High Court on the 10th of March 1863 (2 Hay, 315), made the distinction above stated between the properties acquired before, and those acquired subsequently to, 1846, affirming the title of the surviving male members of the joint family to the former. It unfortunately, however, happened that owing either to the frame of this suit, or to the manner in which the decree made in it was executed, the result of this earlier litigation was only to put Sudaburt into possession of one moiety of Bhugwans share in the joint family property.

3. Subsequently the remaining hal-fshare of Bhugwan in portions of the joint family property appears to have been seized and sold in execution of various decrees obtained against his widows as his representatives. And on the 10th of April 1865, the present suit was instituted by the mother and guardian of Hurreenath in order to recover possession, and to have his name entered as proprietor, of his moiety of Bhugwans share in the joint properties, and to cancel and set aside the execution sales under the decrees against the widows. The defendants to that suit were the widows, the different purchasers under the execution sales, and, under the description of "Precautionary defendants," the widow of another deceased member of the joint family, as to whom there is now no question, and Sudaburt Pershad, the plaintiff in the former suit. As such defendant Sudaburt filed a written statement, in which he disclaimed all interest in the suit, on the ground that under the decree in his own suit he had been put in possession of his share in the property in dispute. The cause was tried between the plaintiff and the other defendants, and a decree was made by the Principal Sudder Ameen on the 9th of April 1866, which, in so far as it related to the particular properties which are the subject of the present appeal, was in favour of the plaintiff. Against this decree the parties defendants, who were affected by it, appealed to the High Court. Their appeals were necessarily separate, inasmuch as the suit was so framed as to embrace interests, not only dependent on different titles, but confined to particular portions of the property in dispute. The High Court decided many of these appeals in favour of the defendants, upon grounds of which some will be afterwards considered. This appeal to Her Majesty in Council originally embraced only eleven of the separate decrees so made. And of these Mr. Cowie has given up one--viz., No. 237. Accordingly their Lordships have now only to deal with the questions involved in the ten appeals, numbered respectively 170, 224, 235, 239, 244, 234, 243, 238, 240, and 245.

4. The course of proceeding in the High Court with respect to these appeals was as follows. (After detailing the course of proceedings in the High Court, and the decision in the various cases as set out, ante, pp. 230 & 231, his Lordship proceeded):



Their Lordships propose in the first instance to consider whether the appeals Nos. 238, 240, and 245 have been rightly disposed of on the ground of limitation. The facts proved are, that in each of these cases the plaintiff, through his guardian, preferred a claim to the property, when attached, under the 246th Section of Act VIII of 1859; that that claim was rejected; and that the present suit was not brought within one year from the date of the order of rejection. This objection would have been fatal to the suit, had the party preferring the claim been an adult; and the only question to be determined was whether the plaintiff, being under the disability of infancy, could claim the benefit of the 11th Section of Act XIV of 1859, which empowers him or his representative to bring a regular suit within the same time after the cesser of the disability as would otherwise have been allowed from the time when the cause of action accrued. This question, Markby, J., observed, involved several contested propositions, viz.:



(1) That Sections 11 and 12 of Act XIV of 1859 apply to Section 246 of Act VIII of 1859.

(2) That the plaintiff is under disability within the meaning of these sections.

(3) That the benefit of these sections applies as well to the period during which the disability continues, as to the period when the disability has ceased.

5. Upon the two first propositions, his opinion was in favour of the plaintiff; upon the third he held that whatever benefit the minor was to have, was to accrue to him not during the disability, but when the disability might cease; and accordingly that the present suit being brought by him, whilst still a minor, through his guardian, must fail.

6. Upon the second of the propositions stated by Markby, J., their Lordships cannot see how, in face of the plain language of the 12th Section, there can be any room for doubt.

7. Upon the first they also agree with the learned Judge that Sections 11 and 12 of Act XIV of 1859 do apply to the 246th Section of the Act VIII of 1859.

8. The two Statutes were passed in the same year, the assent of the Governor-General being given to Act VIII on the 22nd of March, to Act XIV on the 4th of May 1859. The object of the first was to enact a general Code of Procedure for the Courts of Civil Judicature not established by Royal Charter. The object of the second was to establish a general Law of Limitation in supersession both of the Regulations which had governed those Courts and of the English Statutes which had regulated the practice of the Courts established by Royal Charter. Looking to the fifth sub-section of the first section, and the 3rd and 11th Sections of Act XIV of 1859, their Lordships have no doubt that the intention of the Legislature was that the period of limitation resulting from the 246th Section of Act VIII should, in the case of a minor, be modified by the operation of the 11th Section of Act XIV; and that this construction has obtained in the Courts of India appears from the case of Huro Soonduree Chowdhrain v. Anundnath Roy Chowdhry 3 W.R. 8.

9. In coming to this conclusion, their Lordships have not failed to consider the recent decision of this Board in the case of Mahomed Bahadur Khan v. The Collector of Bareilly 13 B.L.R. 292 : S.C.L.R. 1 Ind. Ap. 167. That case, however, they think, is distinguishable from the present. It arose upon a very special statute, and upon that ground the judgment rests. Their Lordships there said: "it was argued that the clauses in the general statute, Act XIV, 1859, relating to disabilities, might be imported into this Act, but this cannot properly be done. Act XIV is a Code of Limitation of general application. This Act is of a special kind, and does not admit of those enactments being annexed to it." And they proceeded to observe that the application of the Statute (if it did apply) would not assist the appellants, who would not even in that case have brought their suit in proper time.

10. This being so, the only other point to be considered on this question of limitation is whether the learned Judge was right in holding that an infant cannot after the expiration of the year bring a suit by his guardian whilst the disability of infancy continues. Their Lordships cannot agree in this construction, which, it would appear from the cases cited by Mr. Bell--Ramchunder Roy v. Umbica Dossee 7 W.R. 161 Ram Ghose v. Greedhur Ghose 14 W.R. 429 and Suffuroonnissa Beebee v. Noorul Hossein 17 W.R. 419 has not been accepted or followed by the Courts in India. It is unreasonable in itself, since it implies that the infants claim, which is admittedly not barred, was asserted too soon rather than too late; and it cannot be the policy of the law to postpone the trial of claims. Again, to render such a construction imperative, the phraseology of the 11th Section must be altered by making the words "after the disability shall have ceased" precede, instead of follow, as they do, the words "within the same time." Their Lordships are therefore of opinion that the plaintiffs suit is not open to the objection that, in so far as it concerns the properties in question in Nos. 238, 240 and 245, it has not been brought within the proper time.

11. The next point to be considered is whether the High Court was right in allowing all the ten appeals, and in dismissing the plaintiffs suit as to those portions of the joint family estate which were the subject of them, on the ground that the suit was wrongly framed.

12. It is to be observed that the objection taken by the Division Bench to the frame of the suit, assumes the correctness of the answer given by the Full Bench to the second of the questions referred to it, and is in the nature of a corollary from the proposition therein affirmed. The learned Judges of the Division Bench argue that if it be true that a member of a joint and undivided Hindu family cannot alienate his undivided share in the joint family property without the consent of his co-sharers, it follows that he cannot alone sue for his separate share. And they rely upon a decision in the case of Rajaram Tewari v. Luchmun Pershad 4 B.L.R.A.C. 118 in which it was ruled that two only of the members of a joint and undivided family could not sue to set aside a charge created by one member of the family, and to recover their particular shares in the property charged, but that the suit must be brought by or on behalf of all the members of the joint family. Their Lordships do not mean in any way to impugn the authority of that case, or to dispute the general principle affirmed by it. They do not, however, think that the principle is applicable to the peculiar circumstances of, or ought to govern, the present case.

13. In this case Sudaburt, the only other member of this joint family, has, under the practice which was then allowed to prevail in the Courts of India, succeeded in recovering, and has been put into possession, of his share of the joint family property. He cannot be said to have any beneficial interest in respect of which he could now sue as plaintiff; and supposing him to have an interest, the present plaintiff has made him a party to this suit in the only way in which a person who is unwilling or unable to be joined as plaintiff can be brought before the Court, i.e., by joining him as a defendant. In that character Sudaburt has disclaimed all interest in the subject-matter of the litigation, alleging that he has already been put into possession of all to which he is entitled. Again, in most, if not all, of the appeals the title of the substantial defendants is founded on execution sales confined to that moiety of Bhugwans share which, on a partition, would now fall to the plaintiff. The objection to the frame of the suit was not taken by the substantial defendants; it seems to have originated with the Judges of the Appellate Court. It is one of form rather than substance; for it cannot be said that if it does not prevail, the defendants (Sudaburt being a party to this litigation and admitting that he is in possession of his share) can be harassed by any second suit. On the other hand, if the objection prevails, the defendants will remain in possession of property to which, after full trial, they have been found to have no title; and the plaintiff will be left to the chances of another suit, in which he may be met by objections well or ill founded on the lapse of time, or the effect of the decrees under appeal as res judicata. Their Lordships are of opinion that they ought not to allow the objection to prevail against the substantial justice of the case.

14. What has been said is sufficient to determine this appeal in favour of the appellant, so far as it relates to the decrees of the High Court in the nine appeals numbered respectively 170, 224, 235, 239, 243, 244, 238, 240, and 245.

15. There is, however, as has been already stated, a further question as to the appeal numbered 234, and at the hearing it occurred to their Lordships, who have unfortunately to determine this appeal ex parte, that if the respondents had appeared, they might, without a cross-appeal, have contested the correctness of the answers given by the Full Bench to the questions referred to them--answers which are not in the form of a decree, or even of an interlocutory order. To the answer to the first question their Lordships think no objections could have been urged successfully. The second question, however, involves a point of Hindu law, upon which the authorities are not altogether consistent; nor are their Lordships satisfied that the principle laid down by the Full Bench would, if correct, govern this particular case, of which they will now proceed to examine the circumstances somewhat more in detail.

16. The property to which it relates is thus described in the schedule to the plaint. The village is specified as Tulmanpore Bhada in two kalums (items). The share of the joint family is stated to be one of ten annas and eight pie. Of this five annas and four pie are deducted as the share of Sudaburt Pershad, which reduces the share claimed by the plaintiff to five annas and four pie. The column of remarks contains the following statement: "This mouza was held in zuripeshgi lease under a zuripeshgi deed executed by Saligram Sahoy and Ramruchea Sahoy. It was sold at an auction on the 18th of November 1862, and purchased by the defendant Bikramajeet Lall for 3 rupees. The zuripeshgi and lease are fit to be cancelled."

17. Bikramajeet Lall and another defendant were the appellants in No. 238, which seems to have covered the whole of the five annas and four pie share of Tulmanpore Bhada with other portions of the property in dispute. From what has been stated above it follows that their title, resting as it does upon a purchase at a sale in execution of a decree against the widows, is defective; that the right of the plaintiff to impeach it is proved, and accordingly their appeal ought to have been dismissed. This, however, does not determine the rights of the plaintiff as against the zuripeshgidars. He may be entitled either to recover so much of the property as is covered by the zuripeshgi by setting aside the zuripeshgi lease, or merely to stand in the shoes of the nominal mortgagor. But the nature and extent of his right can only be determined in appeal No. 234.

18. The appellants on that appeal were the original zuripeshgidars, Saligram Sahoy and Ramruchea Sahoy. The zuripeshgi deed appears to have covered originally only 5 annas and 4 pie of the entire 16 annas of Mouza Tulmanpore Bhada. If then it be true that Sudaburt Pershad has succeeded in recovering one moiety of this, the subject of the dispute on this appeal is the remaining moiety or a 2-anna and 8-pie share. And this appears to have been the view of the High Court, for their decree on this appeal is limited to a 2-anna and 8-pie share. If, on the other hand, Sudaburt has not succeeded in his suit in setting aside the zuripeshgi as against him, or in otherwise wresting possession of his share from the zuripeshgidars, it follows that the question of the validity of this zuripeshgi remains to be determined between the latter on the one side, and him and the present plaintiff on the other.

19. The plaint in this suit alleged no special grounds for setting aside the zuripeshgi of the 9th December 1859, and indeed contained no special mention of it. The written statement of the defendants Saligram and Ramruchea set up that deed, and insisted on their rights under it. But none of the issues are specially pointed to the validity of the deed. Nor do the judgment or the decree of the Principal Sudder Ameen deal with that question. All that they decide with respect to the share claimed in Tulmanpore Bhada is that "plaintiff be put in possession thereof in the manner in which possession has been given by the decree of the 5th of April 1862" (to Sudaburt).

20. This reference to the suit of Sudaburt makes it material to consider whether there really was any adjudication upon this question in that suit. The suit, it will be remembered, involved the right of succession to the whole of the property of which Bhugwan Lall died possessed as between his widows and the surviving members of the joint family. The plaint in that suit contains no specific statement touching the zuripeshgi deed of the 9th of December 1859, unless it be in the schedule where in the columns of remarks it is said, "the deed to the extent of plaintiffs share ought to be amended." The judgment of the Zilla Judge put the share in Tulmanpore Bhada into the first parcel, which it found to be joint family property. So far it affirmed the title of Sudaburt and Hurreenath, and negatived the title of the widows, to whatever interest in it belonged to Bhugwan Lall at the time of his death. But in answer to the 11th issue it expressly found that the deeds executed by Mukkun, Bhugwan, or the other partners were valid. The decree was a general decree for possession over the properties in the first list. The High Court, on appeal, simply affirmed this judgment and decree of the Zilla Court. Can it be said that this judgment and decree import any adjudication touching the invalidity of the deed of the 9th of December 1859, as against the surviving members of the joint family, even if the plaintiff in this suit could claim the benefit of such an adjudication. The judgment, so far as it goes, is on the face of it the other way. The terms of the decree may import only that the plaintiff Sudaburt was, so far as his share was concerned, to be put into possession of the rights of Bhugwan. If in the execution of that decree, he has contrived, it may be wrongfully, to dispossess to the extent of his share the zuripeshgidars, that circumstance cannot give title to the plaintiff.

21. Again, what has been found by the High Court with respect to this appeal The answer of the Full Bench expressly stated that the facts were not sufficiently stated to enable them to say whether the nephew of Bhugwan Lall could recover from the mortgagee, without redeeming the same, possession of the mortgaged share or any portion of it. That statement, taken in connection with the general principle affirmed by them, imports that there was no constat that the execution by Bhugwan of the deed was without the consent of his co-sharers, or not for the benefit of the family. Markby, J. does not consider this latter question, but simply says "As no objection was made to the reference to the Full Bench, I think we ought to accept its decision for the purposes of this case, and to hold that the appellants have failed to establish their title."

22. In these circumstances there appears to have been no real trial of the question between the plaintiff and the then appellants in No. 234; and therefore, assuming the principle enunciated by the Full Bench in its answer to the second question to be strictly correct, their Lordships do not feel themselves at liberty to reverse the decree in favour of the then appellants, and to make a decree in favour of the plaintiff. This being so, they abstain from pronouncing any opinion upon the grave question of Hindu law involved in the answer of the Full Bench to the second point referred to them, a question which, the appeal coming on ex parte, could not be fully or properly argued before them. That question must continue to stand, as it now stands, upon the authorities, unaffected by the judgment on this appeal.

23. Their Lordships have felt some doubt as to the form of the order which ought to be made on appeal No. 234. The plaintiff has failed to establish his title to recover the land against the zuripeshgidars. He might, however, have established such a title even in this suit, had a proper issue been framed and determined. On the other hand, he has established his title to the property, subject to the zuripeshgi. His rights may be prejudiced by the decree as it stands. The suit is an example of the inconvenience of embracing in one suit titles to various parcels of land, which, although having a common foundation, are different in many particulars, and are to be asserted against defendants having no common interest. Their Lordships have come to the conclusion, that the dismissal of the present suit against the appellants (in the High Court) in No. 234 ought to stand, but that the decree of the High Court on that appeal ought to be varied by adding a declaration, that it is to be without prejudice to the right of the plaintiff to recover the lands in question on satisfaction of the zuripeshgi. This appeal, so far as it relates to No. 237 (the case given up by Mr. Cowie) must be dismissed, and the decree made by the High Court in that case affirmed. In the other nine cases, the decrees of the High Court must be reversed, and an order made, dismissing in each case the appeal to the High Court, with the costs of the appeal in that Court, and affirming the decree of the Principal Sudder Ameen as to the parcels of property which are the subjects of those appeals. The above will be the substance of the order which their Lordships will humbly recommend Her Majesty to make.

24. Their Lordships think that there should be no order as to the costs of this appeal.