Richards and Griffin, JJ.
1. This was a suit to recover possession of certain zamindari property. The plaintiffs are the sons of one Baji Lal, who died on the 19th of August 1884. After his death, his widow, Musammat Parbati, was appointed guardian of the persons and property of the plaintiffs, who were then minors. An application was then made to the court for leave to sell a 5 anna 4 pie share in the village and a 7 anna 4 pie share in another village. The District Judge sanctioned this sale on the terms that the defendant No. 1 in this suit, Mani Ram, should give a clear receipt for all that was due to him. The consideration for the sale was to be Rs. 8,400. Instead of carrying out this sale, a sale of a totally different nature was made. The property sold AVUS not the same property which the Judge did give permission to sell, and instead of the minors' getting a clear receipt for all debt that was due to Mani Ram, a sum of Rs. 1,000 only was placed to their credit. It would appear that Mani Ram and the defendants Nos. 2 and 3 bad also a mortgage of a park of the property. This they foreclosed, although it was the intention of the sale which the Judge bad permitted that the mortgage should be extinguished, at least so far as the minors and their property were concerned. This gale took place on the 28th of 'April 1886. The plaintiff No. 1 attained majority, according to the finding of the court below, more than 15 years before the institution of the present suit. The suit, however, was brought within three years of the plaintiff No. 2 attaining his majority. In the lower appellate court the suit was determined on the question of limitation, the learned Judge being of opinion that inasmuch as plaintiff No. 1 was of full age he was entitled 'to give a discharge' within the meaning of Section 8, Limitation Act, and that accordingly the right of plaintiff No. 2 was also barred.
2. Section 18 of Act XL of 1858 (which was in force at the, date of the sale to Mani Ram) provided that no such person (i.e. the guardian) shall have power to sell or mortgage any immovable property, or to grant a lease of the estate for any period exceeding five years without an order of the civil court previously obtained. The sale which Musammat Parbati was induced to make was not in any sense the sale sanctioned by the District Judge. Section 30 of Act No. VIII of 1890 provides that the disposal of immovable property by a guardian in contravention of certain provision of that Act is voidable. The older Act contains no corresponding provision, and in our judgment the sale by Musammat Parbati was absolutely null and void. The only question accordingly that we have to decide is whether or not the plaintiffs are entitled to the benefit of the provisions contained, in the last portion of Section 8, Limitation Act, No. XV of. 1877. That section provides as follows: 'when one of several joint creditors or claimants is under any such disability, and when 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. 'The cause of action in the present case unquestionably arose when the defendants took possession in 1886. Section 7 of the last-mentioned Act appears to apply to the case of a sale, plaintiff or applicant being under some disability or to, the case of all plaintiffs or applicants being under disability. The section was so construed by a full Bench of the Madras High Court in the case of Periasami v. Krishna Ayyan (1902) I.L.R. 25 Mad. 431 and accordingly plaintiffs cannot succeed unless they come under the provisions of Section 8 and can show that neither of them was capable of giving a discharge without the concurrence of the other. It is a little difficult to understand the meaning of the expression when 'a discharge can be given without the concurrence of such person,' and we may note that the word 'claimant' in Section 8 has been omitted from the corresponding section of the new Limitation Act, No. IX of 1908.
3. As a member of a joint Hindu family, it is quite clear that the plaintiff No. 1 could not have sued alone to recover possession of the joint properly, If his brother did not join as plaintiff, it would have been necessary for him to take advantage of the provisions of the Code of Civil Procedure and to make him a defendant. It is equally clear that the plaintiff No. 1 could not have sold or mortgaged the property without the concurrence of his brother plaintiff No. 2. One case cited was Vigneswara v. Bapayya (1893) I.L.R. 16 Mad. 436. That was a suit by two sons to set aside the sale on the ground that it was illegal as contravening the provisions of Section 99, Transfer of Property Act. The suit was clearly not brought in time so far as one of the plaintiffs was concerned and the court decided that the claim of the other brother was also barred, apparently upon the ground that the elder brother could have sued and compromised the suit. It was argued that the elder brother, if he did sue, could not have compromised the suit. The learned Judges pointed out that the elder brother could have sued making his younger brother a co-plaintiff and then compromised the suit with the sanction of the court. It seems to us that the very fact that it would be necessary to obtain leave of the court shows that the elder brother could not have given a good discharge without the concurrence of his brother within the meaning of the section. It is further argued in the present case that the plaintiff No. 1 must be deemed to be the managing member of the family who would have a right to give a discharge. The powers of the manager of a Hindu family are undoubtedly very extensive, but there is nothing in the present case to show that. the plaintiff No. 1 ever acted as the manager. In the present case all that he did was to remain quite inactive without taking any step to recover possession of the property or to set aside the transaction which was completely against the interest of himself and his minor brother. On the whole we have come to the conclusion that the plaintiff No. 1 was not capable of giving a discharge without the concurrence of plaintiff No. 2 within the meaning of Section 8 of Act XV of 1877. The consequence is that time did not run against either of the plaintiffs and the suit is maintainable. As the case was decided on a preliminary point by the lower appellate court, we allow the appeal, set aside the decree of the court below and remand the case for disposal of the other issues. Costs here and hitherto will abide the result.