Patna High Court
Karan Singh And Anr. vs Musammat Tetar Kuer And Ors. on 23 April, 1937
Equivalent citations: 170IND. CAS.362, AIR 1937 PATNA 435
JUDGMENT
1. This appeal arises out of a suit for confirmation of possession or in the alternative for recovery of possession over 8 annas of Mauza Kurpani after setting aside the sale dated June 12, 1914, executed by the plaintiffs' mother Musammat Hiran Kuer, in favour of one Sheoshahkar Sahu with respect to the share on the ground. that the alienation was not for any legal necessity and consequently not binding upon the plaintiff. The plaintiff appellants also sought to redeem a zarpeshgi of the properties mentioned in Schedule B of the plainti for a partition of their share in the mauza and for mesne profits.
2. The plaintiff Karan Singh and Oharan Singh are two brothers. Their case shortly was that the entire Mauza Kurpani belonged to Mahali Singh, their father, and his cousins Shankar and Sukhnath Singh. Mahali's share being 8 annas and the remaining 8; annas belonged to Shankar and SukhnathVthat in execution of a money decree obtained by "Sheobhajan Sahu (the husband of defendants Nos. 1 and 2) against Shankar Singh 8 annas share of the mauza was sold and purchased by Sheobhajan Sahu on March 30, 1911, that on September 18, 1914, Sheobhajan succeeded in getting the remaining 8 annas interest in the zarpeshgi properties by a deed of assignment after paying Rs. 505-8-0, th-it during their minority their mother (defend-" ant No. 3) sold their 8 annas share in the manga by a sale-deed dated June 12,1914, to Sheoshankar Sahu reserving only a small quantity of land for their maintenance, and that she received no consideration from Sheoshankar Sahu, for the sale although it is mentioned in the sale deed to be Rs. 800, that fraud was practised upon the mother of the plaintiffs by Sheoshankar in collusion with Sukhnath and Shankar's son Jai Singh, that the said alienation was not for any legal necessity or for the benefit of the plaintiffs but was contrary or highly detrimental to their interest they being minors, that on January 5,1917, Sheoshankar Sahu executed a sale-deed in favour of Sheobhajan Sahu in respect of the 12 annas of the mauza, that plaintiff No. 1 attained majority only 8 months before the filing of the suit in 1928 (the suit having been tiled on January 21, 1929) and having come to know the state of affairs approached defendants Nos. 1 and 2 to redeem their share of the zarpeshgi but the said defendants were unwilling to do so, thnt the plaintiffs accordingly deposited the sum of Rs. 505-8-0 representing their share of the zarpeshgi on January 9, 1925, in Court, that they also asked defendants Nos. 1 and 2 to effect a partition of the share in the mauza but that they refused to do so, and hence the suit.
3. Defendants Nos. 1 and 2 contesting the suit alleged that Musammat Hiran Kuer sold the property for full consideration, that there was no fraud or misrepresentation, that the sale was for legal necessity to pay off antecedent debt, that plaintiff No. 1 attained majority long ago and fought several suits with the defendants with regard to some of the lands but was throughout unsuccessful, that the suit was barred by limitation, and that the plaintiffs were not entitled to recover possession of the disputed properties or to redeem the zarpesghi nor were they entitled to have the property partitioned and get mesne profits. The trial Court dismissed the suit and that decision was upheld by the Judicial Commissioner of Chota Nagpur. Various issues were raised in the case, the important ones being Nos. 3 and 4:
(3) Is the suit barred by limitation? and (4) Was the sale-deed executed by defendant No. 3 obtained through fraud and misrepresentation and was it without consideration? Was there any legal necessity for the said transfer?
4. The findings of fact arrived at by the lower Appellate Court are that the plaintiffs failed to prove that Karan Singh attained majority within three years before the institution of the present suit; that Karan Singh was the managing member of the plaintiff's family; and that there was no legal necessity for the sale. The second appeal hating come up for hearing before a Bench has been referred to this Full Bench in view of certain points of law involved in the case. On the findings of fact the question that arises and which has been referred to this Bench is, whether in an undivided Hindu family governed by the law of Mitakshara, an elder brother who has attained majority and is the manager of the family can without the concurrence of his minor brother or brothers give up the right to sue for the recovery of property which has been improperly alienated by their guardian at a time when all the brothers were minors. In the event of the answer to this question being in the negative, another question which arises is whether the suit would not be barred as regards the elder brother's share who, notwithstanding his majority, did not institute a suit within three years of his attaining majority. If the answer to the question is in the affirmative, then the question arises whether a suit brought by two or more brothers to set aside an alienation by their guardian more than three years after the elder brother attained majority is barred by limitation not only as regards the elder brother's share but also in respect of the share of the younger brother or brothers in the family property, though the latter attained majority within three years prior to ,the institution of the suit. The answer to the question depends mainly on the interpretation to be put on Section 7, Limitation Act of 1908. That section runs as follows:
Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.
5. Mr. K.K. Banerji, appearing on behalf of the appellants', has with his usual thoroughness taken us through a number of decisions of the different High Courts and contends that every co-parcener has a right to challenge the acts of his guardian or the manager of the joint family irrespective of the rights of the other co-parceners," and if it is a case of a joint cause of action, the elder brother could not give a valid discharge so as to bind the minor claimant who is his younger brother in this case. In Jawahir Singh v. Udai Parkash 48 A 152 : 93 Ind. Cas. 216 : AIR 1926 PC 16 : 53 IA 36 : 24 ALJ 97 : (1926) MWN 197 : 50 MLJ 344 : 3 CWN 365 : 43 CLJ 374 : 30 CWN 698 : 28 Bom LR 851 (PC) where a Hindu father had contracted to sell a part of the joint family property to discharge a mortgage upon other parts of it, but the mortgage was discharged before the receipt of the purchase price which the father applied to his own purposes, it was held by their Lordships of the Judicial Committee that the sale could not be supported as having been made to discharge an antecedent debt, and the suit brought by the younger son within three years of attaining majority to avoid the sale was not barred by limitation, although the elder son had attained majority more than three years earlier and had taken no steps to question the alienation. But in that case it is to be noticed that although the elder son had attained majority more than three years earlier, the father was still alive and, therefore, it could not be said that the elder brother as the karta of the family could give a valid discharge as contemplated by Section 7 without the concurrence of the younger brother. In a later case of the Allahabad High Court, in Sheonandan Prasad v. Tahiran Bibi 52 A 768 : 130 Ind. Cas. 691 : AIR 1930 All. 861 : (1930) ALJ 852 : Ind. Rul. (1931) All. 307, the joint Hindu family consisted of three brothers, two of whom were minors. The eldest brother together with the mother expressly acting as guardian of the minors, sold a portion of the joint family property. Another portion was sold by a second sale deed in which the mother did not expressly profess to act as guardian. The elder of the two minors attained majority, but did not sue within the statutory period to challenge the sales. The younger sued within three years of his attaining majority, although more than three years after the elder had attained majority. There it was held that the suit was not barred by limitation. Mukerji and Bennet, JJ. observed as follows:
In a joint Hindu family every member ordinarily claims for himself. When a father alienates property, every one of the sons has a right to impeach the transfer if it is not binding on the family. It is an individual right and is enjoyed severally by each of the joint members of the family. Section 7, Limitation Act, applies where any suit has to be brought 'jointly' by several persons. A suit by one of several sons of a Hindu father who has transferred the property would be maintainable without the other sons joining in the suit. It cannot, therefore, be said that the right to sue is claimed 'jointly' by several sons of a father who alienated the joint Hindu family property. Further, the use of the words 'a discharge can be given without the concurrence of such person indicates that the section is applicable to cases like a debt where the question of discharge may arise. Here there is no question of discharge. The mother, on behalf of the minors, and the eldest brother alienated the property. If the head of the family (Debi Prasad at the time) could give a discharge within the meaning of Section 7, Limitation Act, no suit whatever could lie at the instance of the younger brother of Debi Prasad. We are of opinion that no question of giving a discharge arises in the present case.
6. Evidently the interpretation is due to the illustrations given under Section 7, Limitation Act. In Kamta Rai v. Jadura j Kunwari AIR 1931 All 398 : 133 Ind. Cas. 155 : Ind. Rul (1931) All. 603, " Banerji and King, JJ. of the Allahabad High Court referring to the decision in Jawahir Singh v. Udai Parkash 48 A 152 : 93 Ind. Cas. 216 : AIR 1926 PC 16 : 53 IA 36 : 24 ALJ 97 : (1926) MWN 197 : 50 MLJ 344 : 3 CWN 365 : 43 CLJ 374 : 30 CWN 698 : 28 Bom LR 851 (PC) already referred to, held that:
Section 7, Limitation Act, clearly has got no application to any but the cases to which it is made applicable, namely, to debts and to execution of decrees,
7. In the Full Bench decision of the Madras High Court in Dorai Swami Sirumadan v. Nondisami Saluyan 38 M 118 : 21 Ind. Cas. 410 : AIR 1915 Mad. 1201 : 25 MLJ 405 : 11 MLT 40l it was held that according to Sections 7 and 8 and Article 44, Limitation Act, a suit brought by two brothers of an undivided Hindu family to set aside an alienation by their guardian more than three years after the elder attained majority is barred by limitation not only as regards the elder brother's share but also in respect of the younger brother's, though the latter attained his majority within three years prior to the institution of the suit. In that case it is noticed that plaintiff No. 1 became the managing member of the family to which plaintiff No. 2 belonged and that as such plaintiff No. 1 represented the family. In Kandasami Naiken v. Irusappa Naiken 41 M 102 : 40 Ind. Cas. 664 : AIR 1918 Mad. 724 : 33 MLJ 309 the Full Bench decision in Dorai Swami Sirumadans case 38 M 118 : 21 Ind. Cas. 410 : AIR 1915 Mad. 1201 : 25 MLJ 405 : 11 MLT 40l was distinguished on the ground that the cause of action of the two sons one of whom was still in the womb on the date of sale was different, because at the time c f the execution of the sale-deed in question the mother was acting as the guardian of only one of the sons and not of the other who was in the womb, and, therefore, their Lordships held that although the claim of the elder son was barred, that of the latter was not so.
8. In Rajagopala Ayyangar v. Srinivasa Raghava Ayyangar 51 M 627 : 109 Ind. Cas. 572 : AIR 1928 Mad. 1055 : 55 MLJ 30 : 28 LW 311 : (1928) MWN 708 the earlier: Full Bench decision of the Madras High Court in Dorai Swami Sirumadan v. Nondisami Saluyan 38 M 118 : 21 Ind. Cas. 410 : AIR 1915 Mad. 1201 : 25 MLJ 405 : 11 MLT 40l was dissented from, and the view taken by the Allahabad High Court which was upheld by the Privy Council in Jawahir Singh v, Udai Parkash 48 A 152 : 93 Ind. Cas. 216 : AIR 1926 PC 16 : 53 IA 36 : 24 ALJ 97 : (1926) MWN 197 : 50 MLJ 344 : 3 CWN 365 : 43 CLJ 374 : 30 CWN 698 : 28 Bom LR 851 (PC) was followed. It was held there that a suit by a younger son within three years of his attaining majority, against his father and an alienee from the father, to set aside an alienation made by the father of joint ancestral family properties was not barred by limitation, even though, the eldest son who had attained majority more than three years prior to the suit had allowed his claim to become barred by limitation. The facts of the case in Bapu Tatya Dessai v. Bala Ravji 45 B 446 : 59 Ind. Cas. 759 : AIR 1921 Bom. 289 : 222 Bom. LR 1383 are hardly distinguishable from the facts of the case in hand. There the facts were that in 1915 three brothers, members of a joint Hindu family, sued to recover possession of property after setting aside a sale deed made by their mother during their minority on July 28, 1905. Plaintiffs No. 1 and 2 were minors and plaintiff No. 3 was more than 21 years of age at the date of the suit. The suit was held barred as against plaintiff No. 3 but a question having arisen whether it was barred as against plaintiffs No. 1 and 2 under Section 7, Limitation Act, 1908, it was held that it was barred as against plaintiffs Nos. 1 and 2 also inasmuch as plaintiff No. 3 on his attaining majority became the manager of the joint family, and as such, could give a valid discharge and acquittance of all claims against the defendants without the concurrence of the minor plaintiffs and the decision in Dorai Swami Sirumadan v. Nondisami Saluyan 38 M 118 : 21 Ind. Cas. 410 : AIR 1915 Mad. 1201 : 25 MLJ 405 : 11 MLT 40l was followed. This decision was distinguished in Bai Kewal v. Madhu Kala 46 B 535 : 64 Ind. Cas. 972 : AIR 1922 Bom. 319 : 23 Bom LR 1191 but this was a case in which the plaintiff sued to redeem a property mortgaged by their father. The suit was brought more than three years after the elder brother had attained majority but within three years of the majority of the younger brother. Although it was argued that the suit was barred against both the brothers it was held that as there was nothing to show that the plaintiff who was a major could have given a discharge without the concurrence of plaintiff No. 2 who was a minor, the suit was in time with reference to both the plaintiffs under Section 7, Limitation Act.
9. The decision in Bapu Tatya Desai v. Bala Ravji 45 B 446 : 59 Ind. Cas. 759 : AIR 1921 Bom. 289 : 222 Bom. LR 1383 was. however, followed in Supdu Daulatsingh v. Sakharam Ramji 52 B 441 : 110 Ind. Cas. 276 : AIR 1929 Bom 13 :30 Bom. LR 537 and it was held that a manager of a joint Hindu family could give a valid discharge without the concurrence of the minor members of the family in the case of an application to execute a decree just as he can in the case of a suit, and the mere fact that one of the members is a minor will not prevent time running against all the members of the family. In the Calcutta High Court in Ashutosh Ghose v. Sashi Mohan Roy 48 CLJ 555 : 115 Ind. Cas. 354 : AIR 1929 Cal. 165 it has been held that where some of the plaintiffs are major and some minor but they are all members of a joint Hindu family of which the major plaintiff is the karta, no extension of time can be availed of under tie provisions of Section 7, Limitation Act, as the major plaintiff being the karta had authority to give discharge not only for himself but also for the minor plaintiff. In that case the suit was for accounts against the gomashta in charge of a business that had belonged to the father of the plaintiffs. That decision distinguishes the decision in Harihar Prashad v. Bholi Pershad 6 CLJ 383.
10. Mr Ragho Saran Lal, appearing on behalf of the respondents has drawn our attention to the decision of this Court in Gangdeo Singh v. Ramprasad Singh 1936 PWN 856 : 167 Ind. Cas. 934 : AIR 1917 Pat. 155 : 18 PLT 383 : 3 BR 367 : 9 RP 453. In that case two persons were jointly entitled to a share during their minority and a suit was instituted, for recovery of possession of properties wrongly recorded during their minority, at a time when one of them was still a minor. It was contended that the suit having been instituted after the period of limitation after one of them had attained majority, it was barred notwithstanding the minority of the other James, J. sitting singly held that mere coming of age of one of them, so long as the other one was minor will not render the suit barred by limitation, unless there was evidence to show that the one who had attained majority was the manager of the family or was authorized to ratify the arrangements made during their minority and that that was a question of fact. The decision emphasizes the importance of the question of fact whether the person who attained majority was in a position to give a valid discharge. If he was, then of course the suit will be barred, but if he was not, then the suit will not be barred by limitation simply because it was filed beyond the period of limitation after the attainment of majority of one member and during the minority of the other.
11. In an unreported decision of this Court Second Appeal 1937 of 1930, Chaturgun Pande v. Bindhachal Dubey disposed of on September 14, 1933, Agarwala, J. under similar circumstances referred to the decision of the Allahabad High Court in Ganga Dayal v. Mani Ram 31 A 156 : 1 Ind. Cas. 824 : 6 ALJ 62, where two brother's sued to set aside a sale effected by their guardian, more than three years after the elder of the two brothers attained majority, and it was held that, in the absence of a finding that the elder brother was the karta of the family, the younger brothers suit was not barred by limitation. The learned Judge accordingly, while dismissing the suit of the major plaintiff No. 1, remanded the appeal of the minor plaintiff No. 2 to the lower Appellate Court for disposal after coming to finding on the point as to whether the major plaintiff in the suit was the karta of the family.
12. The decision of the Judicial Committee in Ranodip Singh v. Parmeshwar Pershad 521 A 69 : 86 Ind. Cas. 249 : AIR 1925 PC 33 : 47 A 165 : 27 OC 343 : 48 MLJ 29 : 21 LW 236 : 2 CWN 1 : 23 ALJ 176 : 27 Bom. LR 175 : 12 CLJ 74 : 26 PLR 113 : LR 6 APC 47 : (1925) MWN 262 :27 OC 343 : 29 CWN 666 (PC) has also been referred to, but that is not quite applicable to the facts of the present case. That was a suit instituted in June 1920 by the four sons of a Hindu father, all members of a joint Mitakshara family, to set aside a sale made by their father on June 3, 1893, of an ancestral village. They alleged that the sale was made without legal necessity. The time from which the period of limitation began to run in that case was June 3, 1893, as the alienee took possession of the property on that date. The four plaintiffs were born respectively in the years 1886,1891,1897 and 1900. The Courts below had held that the suit was barred by limitation, but the contention on behalf of the appellants was that limitation was saved by Section 7, Limitation Act. It was conceded that the suit on behalf of the first three plaintiffs was barred by limitation but it was contended that the minority of plaintiff No. 4 saved limitation. Their Lordships held that the cause of action arose on June 3, 1893, and plaintiff No. 4 was born in 1900 and that did not create a fresh cause of action or a new starting point from which limitation should be reckoned. Their Lordships held that the extended period can only be claimed by a person entitled to sue at the time from which the period of limitation is to be reckoned, and as the fourth was not in existence at that time, he was not entitled to the benefits of Section 7, Limitation Act.
13. Two other decisions of the Allahabad High Court have been cited. In Baijnath v. Ram Bilas AIR 1924 All 738 : 80 Ind. Cas. 12 : LR 5 A 386 Civ. the decision of the Madras High Court in Dorai Swami Sirumadan v. Nondisami Saluyan 38 M 118 : 21 Ind. Cas. 410 : AIR 1915 Mad. 1201 : 25 MLJ 405 : 11 MLT 401 and that of the Bombay High Court in Bapu Tatya Desai v. Bala Ravji 45 B 446 : 59 Ind. Cas. 759 : AIR 1921 Bom. 289 : 222 Bom. LR 1383 were followed. In Shiam Lal v. Mool Chand AIR 1925 All. 672 : 87 lad. Cas. 177 : LR 6 A 299 Civ. the same view was i aken and it was held that an elder brother of a joint Hindu family represented the entire family and, therefore he could give a discharge within the meaning of Section 7, Limitation Act, on behalf of the minor brother, and the decision in Rati Ram v. Nadar 41 A 435 : 49 Ind. Cas. 990 : AIR 1919 All. 209 : 17 ALJ 649 was followed. This being the trend of the various decisions, it is necessary to look into the wording of Section 7, Limitation Act, with reference to its applicability to' the present case. It is clear that the disabilities in view under this section include that of being a minor as laid down in the foregoing Section 6. Section 7 clearly governs the case of persons jointly entitled to institute a suit: and it provides that if any one of such persons is under a disability and none of the other persons could give a discharge without the concurrence of the person under disability, time will not run as against any of them until the disability of the one has ceased or any one of them becomes capable of giving a discharge. If the position is that any one of such persons is capable of giving a discharge, then time will run against them all. In the case before us, Karan Singh (plaintiff No. 1) attained majority more than three years before the institution of the suit, an it has also been found that he was the karta of the plaintiff's family. The plaintiff's action in the present case will be governed by the provisions of Section 7, Limitation Act. The question whether Karan Singh could or could not give a valid discharge will depend upon the law which governs him and his brother.
14. The term 'discharge' in this section does not mean merely a discharge of pecuniary liability, but has a wider significance and includes a release of rights in immovable property such as even the equity of redemption or a release of other rights, as for instance, a right to institute a suit: see Parmeswaran Nambudripad v. Sankaran Nambudripad 25 Ind. Cas. 755 : AIR 1915 Mad. 723 : 16 MLT 241 :(1914) MWN 689. It is settled law that a karta of a joint Hindu family can give a valid discharge without the concurrence of the other members: see Harihar Prashad v. Bholi Pershad 6 CLJ 383. The divergence of opinions on the particular point has arisen chiefly on account of the difference in the facts of the various cases decided. The cases in which it has been held that the minor's claim was not time-barred were those in which either the brother who had attained majority was not the karta of the family or could not give a valid discharge. Agreeing with the cases reported in Dorai Swami Sirumadun v. Nondisami Saluyan 38 M 118 : 21 Ind. Cas. 410 : AIR 1915 Mad. 1201 : 25 MLJ 405 : 11 MLT 40l, Bapu Tatya Desai v. Bala Ravji 45 B 446 : 59 Ind. Cas. 759 : AIR 1921 Bom. 289 : 222 Bom. LR 1383, Ashutosh Ghose v. Sashi Mohan Roy 48 CLJ 555 : 115 Ind. Cas. 354 : AIR 1929 Cal. 165 and Gangdeo Singh v. Ramprasad Singh 1936 PWN 856 : 167 Ind. Cas. 934 : AIR 1917 Pat. 155 : 18 PLT 383 : 3 BR 367 : 9 RP 453 we answer the question referred to us in the affirmative. That being the answer, it is not necessary to deal with the supplementary questions mentioned in the order of reference. On the findings of fact it must be held that the suit is barred by limitation, and the appeal must be dismissed with costs.