JUDGMENT Daniels, J.
1. This was a suit by the son and grandson of one Kishen Lal who died in 1907 to recover joint family property which on Kishen Lal's death wrongly passed into the hands of one Mt. Gobindi and was subsequently transferred by her. The sole question for decision is one of limitation. The suit is brought more than twelve years after Kishen Lal's death, but the plaintiff's are still minors. It was urged for the defendants that the suit was nevertheless barred because Ram Satan Das, the elder brother of the first plaintiff and the father of the second plaintiff, attained majority more than three years before the suit. This argument has found favour with the Court below on the basis of certain decisions to be found in unauthorized reports. The learned Judge declined to follow the decision of this Court in Ganga Dayal v. Mani Ram [1909] 31 All. 156 on the ground that it was not clear. The decision in Ganga Dayal v. Mani Ram [1909] 31 All. 156 has recently been approved by their Lordships of the Privy Council in Jawahir Singh v. Udai Parkash A.I.R. 1926 P.C. 16. The head-note in that case runs:
A suit brought by the younger son within three years of attaining majority to avoid the sale is not barred by limitation, although the elder son attained his majority more than three years earlier and had taken no steps to question the alienation.
2. The appeal was from a decision of this Court in which the learned Judges followed the case of Ganga Dayal v. Mani Ram [1909] 31 All. 156 and the Privy Council concurred in the view taken by this Court. The presumption that the elder brother by reason of being the elder brother must have acted as manager after attaining majority was argued but not accepted in the case of Ganga Dayal v. Mani Ram [1909] 31 All. 156. This presumption, therefore, is clearly not sufficient. Nor is the mere fact that the elder brother filed an objection in the mutation case sufficient to show that he was acting as manager. The case is governed by the recent Privy Council decision. The trial Court recorded findings on all the issues in the case. I, therefore, setting aside the decree of the Court below, direct the learned Judge to restore the appeal to his file and dispose of it on the merits. This order is passed under Order 41, Rule 23 of the Civil P.C., as the appeal has been disposed of on a preliminary point.
3. The appellants will get their costs of this appeal including fees on the higher scale. Other costs will abide the results.