1. The question in this appeal is, whether the present darkhast is barred by limitation'. The trial Court held that it was barred. The lower appellate Court took the view that in law it was not barred but by an error which is not easily explicable, dismissed the appeal with costs. The decree-holder appeals.
2. Laxman and Vithal were brothers constituting a joint Hindu family. On their death the family consisted of Laxman's minor sons Dattatraya and Murlidhar and Vithal's son Vaman a major and apparently the manager of the joint family consisting of himself and his two cousins. In suit No. 35 of 1911 an award decree was made allowing the plaintiff-respondent to redeem the land on making certain payments payable by instalments. The decree concluded as follows:-'The guardian of the minor defendants will not be allowed to receive the amount due under this decree unless he furnishes security for the same.' The last payment certified was in 1917. For the defendants-appellants a certain payment in 1922 within three years of the darkhast was set up and was not held to have been proved in either Courts, In 1919 Dattatraya attained majority. While the darkhast was pending, Vaman died and hia heirs his two sons were brought on the record. In order to save limitation, the appellants rely on the fact that the younger brother Murlidhar attained majority within three years of the darkhast.
3. The trial Court held on these facts that though Murlidhar had attained majority within three years, Vaman and after his death Dattatraya could have given a valid discbarge and Murlidhar was not therefore entitled to the benefit of Section 7 of the Indian Limitation Act, In appeal the learned District Judge, while holding the alleged payment in 1922 not proved, held, chiefly on the authority of Letehmana Ghetty v. Subbiah Chetty I.L.R(1924) . Mad. 920 that Vaman could not have given a valid discharge and that therefore Murlidhar could claim the benefit of Section 7 of the Indian Limitation Act. In other words, the darkhast was not barred by limitation. But he proceeded 'However, owing to the finding of fact, the decision will remain unaltered', referring, presumably, to the finding of fact as to the alleged payment in 1922, and dismissed the appeal with costs.
4. The learned District Judge was labouring under an obvious error. In the view of the law that he took and notwithstanding the finding of fact, the District Judge ought to have allowed the appeal and held that the darkhast was within time. There is nothing on the record to show why the appellants' pleader did I not invite the attention of the learned Disrtict Judge to this obvious error and have it set right by an application for review or otherwise.
5. On the finding of the lower Courts that no payment till 1922 is proved, the only question in appeal is, whether by reason of Murlidhar's minority the appellants are entitled to the benefit of Section 7 of the Indian Limitation Act. That question depends in turn on the question whether a discharge could be given by Vaman without the concurrence of Dattatraya and Murlidhar or only Dattatraya on attaining majority in which case time would begin to run against them all.
6. It is argued for the appellants that as Vaman was not merely the manager but was appointed as guardian of the minors under Order XXXII, Rule 6, Civil Procedure Code, he could not, without the leave of the Court, receive any moneys or give a discharge. Nor could Dattatraya even on attaining majority do so as Vaman was the manager. Relianace is placed for this proposition on the observations of their Lordships of the Privy Council in Ganesha Row v. Tuljaram 15 Bom. L.R. 626and the decision of the Madras High Court in Letchmana Chetty v. Subbiah Chetty I.L.R(1924) . Mad. 920. The respondent relies on the concluding words in the decree as showing that it was not necessary for Vaman to apply for the sanction of the Court on each occasion that he received the instalment. Therefore, he could give a valid discharge even before the majority of Dattatraya. It is argued that in any case when Dattatraya attained majority he was competent to give a valid discharge, and the darkhast was barred within three years of the attaining of majority by Dattatraya: Supdu v. Sakha-ram : (1928)30BOMLR537 .
7. As far as the decisions of this Court go, they are in favour of the contention of the respondent and it is difficult for me, sitting singly, to differ from the view enunciated by Fawcett and Mirza JJ. in Supdu v. Sakharam that (p. 539) 'the manager of a joint Hindu family can 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.' This case purports to follow Bapu Tatya v. Bala Ravji 22 Bom. L.R. 1383 where it was held that in the case of three brothers when the eldest was a major and manager of the joint family on the date of the suit the eldest was competent to give a valid discharge without the concurrence of his minor brothers the suit was barred. To the same effect is the decision of the Allahabad High Court in Rati Ram v. Niadar I.L.R.(1919) All. 435 . The great difficulty in the way of the respondent lies in the observations of their Lordships of the Privy Council in Ganesha Row v. Tuljaram 15 Bom. L.R. 626 p. c. In that case the father and manager of the joint Hindu family who had also been appointed guardian entered into a compromise without the leave of the Court necessary under Order XXXII, Rule 7, Civil Procedure Code, It was held by their Lordships of the Privy Council that his capacity as lather and manager of the joint family and his general powers there under would not except him from the special provisions of Order XXXII, Rule 7, Civil Procedure Code, as soon as he was appointed next friend or guardian in the suit, and the compromise was therefore not binding on the minor. Purporting to follow this decision the Madras High Court in Letchmana Chetty v. Subbiah Chetty I.L.R(1924) . Mad. 920 held that in the case of a father who was appointed guardian of his minor sons in a suit, an application by the eldest son more than three years after the decree but within three years of his majority was not barred because the father could not give a valid discharge without the leave of the Court obtained under Order XXXII, Rule 6, Civil Procedure Code, any more than he could have compromised the suit without such leave. As pointed out by Ramesam J. this decision really went counter to the previous current of decisions of the Madras High Court, for instance, Vigneawara v. Bapayya I.L.R(1893) . Mad, 436. Doraisami Serumadan v. Nondisami Saluvan (1912) I.L.R. 38 Mad. 118 and Krishna Hande v. Padmanabha Hande : (1913)25MLJ442 decided after the Privy Council decision in Ganesh Row v. Tuljaram. It is true that the decision of the Allahabad High Court in Ganga Dayal v. Mani Ram I.L.R(1908) . All. 156 that the majority of the elder brother would not bar a suit of the younger brother appears to have been implicity approved by their Lordships of the Privy Council in Jawahir Singh v. Udai Parkash (1925) 28 Bom. L.R. 851 p. c. in which the finding of limitation of the Allahabad High Court was confirmed by their Lordships. The head-note of that case goes however beyond the judgment, and although their Lordships have referred to the two Madras decisions of Vigneswara v. Bapayya and Doraisami Serumadan v. Nondisami Saluvan, there is no explicit disapproval of that view. In the latest decision of the Madras High Court, Surayya v. Subbammaci : AIR1928Mad42 which follows Doraisami Serumadan v. Nondisami Saluvan, the head-note runs thus: 'In the case of an alienation made by the guardian of minor brothers, if the eldest brother on attaining majority does not institute a suit to set aside the alienation within the time limited by law, any suit by the younger brothers is barred by limitation.' As a result of these authorities, I am of opinion, whatever the case as regards a compromise without the leave of the Court under Order XXXII, rule ?, Civil Procedure Code, as regards a valid discharge, that is to say, authority to receive moneys under Rule 6, the question must be one of construction of the decree in each case, as to whether the manager has or has not power. In the present case, it appears to me, on a perusal of the whole decree, that by reason of the long period of the instalments, and in order to obviate the necessity of a separate application on the part of the decree-holder to receive each separate instalment which would be necessary under Order XXXII, Rule 7, Civil Procedure Code, the Court made the provision once for all in the last sentence that in respect of each instalment he was to furnish security and then to receive the amount. The present decree itself dispenses with the separate application and sanction which might otherwise be necessary and allowed the manager Vaman to receive the amount so long as he furnished the security, Vaman was, therefore, competent, without the sanction of the Court to receive payment and grant the discharge in favour of the minors and Murlidhar is not entitled to the benefit of Section 7 of the Indian Limitation Act. The application is, therefore, barred by limitation quite apart from the attainment of majority by Dattatraya as well. This view is in accordance with the current of authorities of this Court quoted in Supdu v. Sakharam.
8. The appeal fails and is dismissed with costs.