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Shiam Lal and ors. Vs. Mool Chand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All672; 87Ind.Cas.177
AppellantShiam Lal and ors.
RespondentMool Chand
Excerpt:
- - 1. the plaintiffs' suit has failed in the courts below inter alia on the ground of limitation......of the appellants in the execution department, and he also found that the suit was barred by 12 years limitation.5. on the question of limitation we are clear that the decree of the court below was right and we do not propose to consider the question of the proper representation by the nazir. in this case, at the date of suit all the plaintiffs were majors; two were more than 21 and the youngest of them was found to have been just over 18 years of age when the suit was filed. it is urged on behalf of the plaintiffs that the youngest of the appellants could maintain his suit because he had three years from his attaining majority and as he could maintain the suit, the suits of his elder brothers would also be within time, the family being joint. this argument, however, is concluded by.....
Judgment:

Mukerji, J.

1. The plaintiffs' suit has failed in the Courts below inter alia on the ground of limitation.

2. It appears that a decree was obtained against the plaintiff-appellants' father by one Ram Prasad. In execution of that decree the property in suit was attached and sold. Before the attachment the father had died and his sons, the appellants, were brought on the record with the Nazir as their guardian for the suit. Over 12 years after the sale of the property, and just within 12 years of the delivery of possession, the appellants brought the suit out of which this appeal has arisen to have the sale set aside and to recover possession, on the ground that they were not properly represented in the execution proceedings, and that the property could not be sold because the father having died as a joint member of a Hindu family it had become the sole property of the appellants.

3. The Court of first instance found that the debt was one which was binding on the plaintiffs. It found that there was no proper representation of the plaintiffs in the execution department, but it found that the suit was barred by limitation.

4. On appeal the learned Judge found that there was a proper representation of the appellants in the execution department, and he also found that the suit was barred by 12 years limitation.

5. On the question of limitation we are clear that the decree of the Court below was right and we do not propose to consider the question of the proper representation by the Nazir. In this case, at the date of suit all the plaintiffs were majors; two were more than 21 and the youngest of them was found to have been just over 18 years of age when the suit was filed. It is urged on behalf of the plaintiffs that the youngest of the appellants could maintain his suit because he had three years from his attaining majority and as he could maintain the suit, the suits of his elder brothers would also be within time, the family being joint. This argument, however, is concluded by the recent case of Rati Ram v. Niadar (1919) 41 All. 435. It was held that where there was an adult brother who could execute a decree on behalf of himself and the minor brother, it must be assumed that the former could give a discharge within the meaning of Section 7 of the Limitation Act, and that younger brother could not execute the decree more than three yeara after the application of the elder brother. In other words, it was held that a joint elder brother in a Hindu family represented the entire family and could therefore give a discharge within the meaning of Section 7 of the Limitation Act on behalf of his minor brother. This case, in our opinion, is on all fours with the case before us and the appeal fails and is hereby dismissed with costs which will include Counsel's fees in this Court on the higher scale.


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