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Bapu Tatya Desai Vs. Bala Raojee Desai - Court Judgment

LegalCrystal Citation
SubjectFamily ;Limitation
CourtMumbai
Decided On
Case Number Second Appeal No. 649 of 1919
Judge
Reported in(1920)22BOMLR1383
AppellantBapu Tatya Desai
RespondentBala Raojee Desai
DispositionAppeal dismissed
Excerpt:
.....article 44 of the indian limitation act 1908, three years after the eldest of her sons attains majority. - - therefore under article 44 of the indian limitation act, the suit as against him was clearly barred. under section 7 of the indian limitation act, we have only to consider whether the manager can give a discharge without the concurrence of the minor members of the family, and the answer clearly is that he can-although, no doubt, if he does not do it for proper purposes, that discharge might be invalid so far as the interests of the minor members of the family are concerned......july 1905 by their mother during their minority. the three plaintiffs are brothers, members of a joint family, and it is admitted that the third plaintiff was more than 21 years when he filed the suit. therefore under article 44 of the indian limitation act, the suit as against him was clearly barred. the question arises whether section 7 of the indian limitation act is applicable and whether the bar also applies to the first and second plaintiffs who are still minors. they will be barred if the third plaintiff could have given a discharge and acquaintance of all claims against the defendants without the concurrence of the first and second plaintiffs as manager of the joint hindu family. now the cause of action which the plaintiffs had owing to the sale-deed executed by their mother.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs sued to recover possession of a moiety of the plaint lands after setting aside the sale-deed passed on 28th July 1905 by their mother during their minority. The three plaintiffs are brothers, members of a joint family, and it is admitted that the third plaintiff was more than 21 years when he filed the suit. Therefore under Article 44 of the Indian Limitation Act, the suit as against him was clearly barred. The question arises whether Section 7 of the Indian Limitation Act is applicable and whether the bar also applies to the first and second plaintiffs who are still minors. They will be barred if the third plaintiff could have given a discharge and acquaintance of all claims against the defendants without the concurrence of the first and second plaintiffs as manager of the joint Hindu family. Now the cause of action which the plaintiffs had owing to the sale-deed executed by their mother being, as they alleged, contrary to their interest, was a joint cause of action, and time would run against them all when one of them became entitled to give a discharge without the concurrence of the others: see Sardar Kirpal Singh v. Sardar Balwant Singh (1912) 15 Bom. L. R. 79, P. C.. I agree with the reasoning of the learned appellate Judge at page 2 of the print, where he says:

It is not denied that the plaintiff No. 3 is the managing member of the family; hence he had a right as soon as he attained majority and became such managing member to bring a Suit as such manager for recovery of not only his share of the alienated property, but of the whole of the alienated property, including his minor brothers' shares, treating the whole an family property improperly alienated during the minority of himself and his younger brothers. If he fails to do so within the period allowed by Article 44 of the Limitation Act, the minor brothers cannot be allowed to contend that they had separate causes of action to recover their shares alone, apart from the cause of action of the adult managing member to recover the whole. I, therefore, hold that the whole suit is time-barred.

2. The test seems to be this: supposing the third plaintiff had brought a suit within three years of attaining majority to set aside the alienation made by his mother, and that suit had been dismissed, would the next brother be allowed to file a suit and also any other brothers there might be, who were minors at the time, as soon as they came of age? It appears to me that the cause of action would be joint amongst them all, the issue being whether the alienation made by their guardian mother was a proper one, and when once that point has been decided in a suit filed by one of the sons who is entitled to be considered as a manager of the joint family, then that decision would be binding on them all. In my opinion, the decision of the learned appellate Judge was correct and the appeal should be dismissed with costs.

Fawcett, J.

3. I agree that the appeal should be dismissed with costs. The main question is whether the plaintiff No. 3 could have given a discharge as manager of the joint Hindu family consisting of himself and his minor brothers without the concurrence of the latter. On this point it has been laid down by the Privy Council in Kishan Prasad v. Har Narain Singh I. L. R (1911) All. 272, that the manager of a joint family business has a power of making contracts, giving receipts, and compromising or discharging the claims ordinarily incidental to the business; and having regard to the extensive powers of a manager of a joint Hindu family, which includes a power to contract debts for the family, it seems clear, that he has power to give a discharge without the concurrence of the minor members of the joint family. It was argued for the appellants that he can only do so for the benefit of the family, but this seems to me to be immaterial. Under Section 7 of the Indian Limitation Act, we have only to consider whether the manager can give a discharge without the concurrence of the minor members of the family, and the answer clearly is that he can-although, no doubt, if he does not do it for proper purposes, that discharge might be invalid so far as the interests of the minor members of the family are concerned. The ruling in Doraswami Serumadan v. Nondisami Saluvan I. L. R (1912) Mad. 118 is an authority that the suit is barred in such a case as the present, and it seems to me that the reasoning on which that case proceeds is sound. In Ganga Dayal v. Mani Ram I. L. R (1908) All. 166 no doubt, the contrary view was taken, but with due respect to the learned Judges who decided that case, it seems to me that their conclusions are based on irrelevant considerations. The fact that the manager could not have sued alone but must have joined his minor brother as a co-plaintiff is not one which affects the provisions of Section 7 of the Indian Limitation Act, so far as I can see. Then it is said in, that case that there was nothing to show that plaintiff No. 3 ever acted as a manager, and that, as a matter of fact, he simply remained quite inactive. That again seems to me irrelevant. The only question is whether he could give a discharge without the concurrence of the minors. The authority of this case is also weakened by Rati Ram v. Niadar I. L. R (1919) All. 435, where it is said that all cases anterior in date to the passing of Act No. IX of 1908 require to be re-considered in the light of the words then inserted in Section 7 of the said Act. It seems to me that the main object of the Legislature in Section 7 is to limit the indulgence which is otherwise given to minors, so that, if there are several minors who can claim the benefit of Section 6, that concession does Not extend to cover the whole period of time up to the youngest of the minors becoming a major, but can only be availed of by the eldest of them.


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