Indian Limitation Act, Arts. 144 and 120 - Applicability of share of Hindu Joint family property - Possession of members of family whether adverse to alienee - Period within which suit for partition and possession by alienee must be brought.

A decree was passed in a money suit against N and his four sons, who were members of a Mitakshara Hindu joint family. In execution of that decree, the shares of the four sons in the joint family properties, described altogether as a 4/5th share, were put up for auction in December 1936 and purchased by S. N's interest was not put up for sale as it was the subject matter of insolvency proceedings. The sale to S was duly confirmed. S sold the properties to P. On November 6, 1939, an order was made under O. 21 rr. 35(2) and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchased to P along with the members of the joint family already in possession. This order was carried out and possession was delivered to P by publishing that fact by beat of drum as prescribed in the rules. Subsequently, P retransferred the properties to S. On October 16, 1951, S filed a suit against the then members of the joint family and various alienees asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession. The trial court decreed the suit but held that S was not entitled to a 4/5th share but only to a 2/3rd share because before the decree, a fifth son had been born to N, who had not been made a party to the suit or the execution proceedings and whose share had consequently not passed under the auction sale. Some of the defendants filed an appeal to the High Court, which allowed the appeal, holding that the suit was barred by limitation under Art. 144 of Schedule I to the Limitation Act. S had filed a cross-objection in the High Court on the ground that he should have been held entitled to a 4/5th share of the properties, which was dismissed by the High Court without discussion of the merits in view of its decision on the question of limitation. S having died, the appellants as his successors in interest appealed to this Court under Art. 133 of the Constitution. The two questions that arose for decision were (1) whether the suit was barred by limitation under Art. 144 or Art. 120 and (2) whether S was entitled to a 4/5th share.