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Sheonandan Prasad Vs. Mt. Tahiran Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtAllahabad
Decided On
Reported inAIR1930All860
AppellantSheonandan Prasad
RespondentMt. Tahiran Bibi and ors.
Excerpt:
- - ' as sheonandan was one of the wards of the mother sumari, prima facie, he should have, in his own right, a period of three years from the date of his attaining majority for the institution of a suit like the present one. it is an individual right and is enjoyed severally by each of the joint members of the family. further the use of the words 'a discharge can be given without concurrence of such person' indicate that the section is applicable to cases like a debt where the question of discharge may arise. only a year ago she bad transferred a portion of the property as the guardian of her minor sons......mother sumari (nandan and sheonandan being minors) purported to transfer certain portions of the family property. this suit was instituted by sheonandan to set aside the alienation and to recover the property, in 1923. it has been found, among other matters, that at the date of the suit sheonandan was less than 21, but his elder brother nandan, who was not one of the vendors, was more than 21. the suit has been dismissed on several grounds, one being that nandan could give a valid discharge as the head of a joint hindu family, and therefore limitation began to run against both nandan aud sheonandan, and it expired when nandan was 21 years of age. reliance was placed on section 7 lim. act and certain rulings of this court and other courts.2. in our opinion, there are two answers to the.....
Judgment:

Mukerji, J.

1. This is an appeal against the judgment of a learned single Judge of this Court, and the question on which decision was given by that learned Judge was one of limitation alone. It appears that there was a family of which one Sital was the father. His wife was Mt. Sumari, and his three sons wore Debi Prasad, Nandan and Sheonandan. After the death of Sital two transfers were executed by way of sale, one in 1908 and the other in 1909. By these documents Debi Prasad and the mother Sumari (Nandan and Sheonandan being minors) purported to transfer certain portions of the family property. This suit was instituted by Sheonandan to set aside the alienation and to recover the property, in 1923. It has been found, among other matters, that at the date of the suit Sheonandan was less than 21, but his elder brother Nandan, who was not one of the vendors, was more than 21. The suit has been dismissed on several grounds, one being that Nandan could give a valid discharge as the head of a joint Hindu family, and therefore limitation began to run against both Nandan aud Sheonandan, and it expired when Nandan was 21 years of age. Reliance was placed on Section 7 Lim. Act and certain rulings of this Court and other Courts.

2. In our opinion, there are two answers to the contention that the suit is time barred. Firstly, the suit fall within Article 44, Sch. 1, Lim. Act, it being a suit by a ward, who has attained majority to set aside the transfer of property by his guardian, viz., the mother. The period of limitation is three years and begins so run from the date 'when the ward attained majority.' As Sheonandan was one of the wards of the mother Sumari, prima facie, he should have, in his own right, a period of three years from the date of his attaining majority for the institution of a suit like the present one.

3. The second ground on which the plea of limitation ought not to have been allowed to succeed is this. In a joint Hindu family every member, ordinarily, claims for himself. When a father alienates property, everyone 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, Lim. 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 the several sons of a father, who alienated the joint Hindu family property. Further the use of the words 'a discharge can be given without concurrence of such person' indicate 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, Lim. Act, no suit whatever could lie at the instance of the younger brothers of Debi Prasad. We are of opinion that no question of giving a discharge arises in the present case.

4. Cases in this Court, (see a.g. Tulsi Ram v. Babulal [1911] 33 All, 654 at pp. 735 and 736 of 8 A.L.J.) have established that a son can impeach his father's alienation, although other members of the family, including' the elder members, have agreed to such transfer. It is true that in the Full Bench case of Hari Lal v. Munman Kunwar [1912] 34 All. 549 it was laid down that, in a litigation, the head of a joint Hindu family governed by the Mitakshara represents the other members of the family. But that is altogether a different matter. It is not the case that any suit in respect of the subject-matter of the present litigation had been brought by Nandan, and it should be taken for granted, in the absence of any evidence to the contrary that Nandan represented his own and his younger brother's interest. On the other hand, this is a question of individual rights, and although Nandan may be willing not to impeach the previous transactions, Sheonandan, the present plaintiff, may be minded otherwise.

5. In the case of Ganga Dayal v. Mani Ram [1903] 31 All. 156 the certificated guardian of two Hindu minors sold certain property of theirs without the sanction of the District Judge. The older brother attained majority but did not impeach the transfer. When the younger brother attained majority, he instituted a suit to impeach the transfer. It was held that the suit was not barred by limitation. This case was followed in an unreported case, Udai Parkash v. Udai Ram First Appeal No, 299 of 1920 by a Bench of this Court. The learned Judges repelled the contention that Section 7, Lim. Act, was a bar to the suit. The contention was noticed by the learned Judges in the following language:

The next question is that of limitation. The Court below, relying on a certain decision of the Madras High Court, has found that because Fateh Singh, the elder brother of the present plaintiffs could have instituted a suit contesting the whole of this alienation and did not do so within three years of his attaining majority, time had begun to run as against all the plaintiffs from the data of Fateh Singh attaining majority, and the suit when brought was statute barred.

6. The learned Judges then considered the case of Ganga Dayal v. Mani Ram [1903] 31 All. 156 and held that it laid down the correct law and the law that was applicable to the circumstances before the learned Judges. There was an appeal against the decision of this Court before their Lordships of the Privy Council, and the decision is reported. It will be found in Jawahir Singh v. Udai Parkash A.I.R. 1926 P.C. 16. The question of limitation was again, urged before their Lordships of the Privy Council, and the plea was repelled. Their Lordships did not discuss the sale but said:

On the question of limitation their Lordships concur with the High Court.

7. We take it that their Lordships entirely approved of the decision of this Court on the point of limitation, which involved a consideration of 8. 7, Lim. Act of 1908.

8. In this state of the authority of this Court and of the Privy Council, we are not disposed to decide in accordance with the view that prevails in Bombay. The learned single Judge relied on Bapu Tatya v. Bala Ravji A.I.R. 1921 Bom. 289 which does not seef4m to have taken notice of two earlier decisions to the contrary, in the same Court, in Kandasami Naicker v. Irusappa Naicken [1918] 41 Mad. 102 and Gulam v. Sriram [1919] 43 Bom. 487.

9. We therefore hold that the suit was not barred by limitation.

10. This disposes of the judgment of the learned single Judge of this Court. The question then remains whether we should remand the case to the lower appellate Court. But on considering the judgment of the lower appellate Court we find that it has decided all the questions that were raised before it, in a careful judgment. Two points were urged before us, namely the right of privacy claimed by the plaintiff was not considered by the lower appellate Court, and that the decision of the lower appellate Court as to legal necessity should not be accepted.

11. On the first point it appears to us that the plea was not pressed before the lower appellate Court. It was negatived by the Court of first instance. The lower appellate Court has given a careful judgment, and it framed no less than six distinct and clear issues on the several points it had to decide. If the question of right of privacy had been raised before it, we are sure that it would have been considered by it. We cannot, therefore, allow this question to be raised again.

12. On the question of necessity, the learned counsel for the appellant has relied on the case of Nandan Prasad v. Abdul Aziz [1899] 21 All. 372. It has been urged that as in the second of these two sale deeds Mt. Sumari did not describe herself as the guardian of her minor sons, it is not open to the Courts to consider whether the minors were really benefited or not by the transaction, and whether Mr. Sumari was or was not actually dealing with the property as the guardian of her minor sons. We have had the sale deed read out to us. We had not find anywhere that Mt. Sumari purported to make the transfer as the owner of the property. Indeed she did not give herself any particular character in the document. Only a year ago she bad transferred a portion of the property as the guardian of her minor sons. We are therefore not bound to take the view that Mr. Sumari, in executing the document of 1909, was taking up an attitude which was contrary to the interest of her minor sons. This view of the sale deed would distinguish the case of Nandan Prasad v. Abdul Aziz [1899] 21 All. 372 The technical plea therefore taken by the learned counsel for the appellant on this point cannot succeed.

13. There is one other point, which ought to be noticed, and it is this. The respondent Mohammad Saddiq died more than three months ago, and his legal representatives have not been brought on the record. It was on behalf of the respondents that the whole appeal had abated. On looking at the written statement filed by Mohammad Saddiq we find that he disclaimed all title to the property. He said that the other defendant in the suit, namely Mohammad Saddiq's wife, the defendant 1, Mt. Tahira, was the sole owner of the property. In the circumstances, we do not think that the death of Mohammad Saddiq and the fact that his legal representatives, namely those (if any) other than his wife, were not brought on the record do not, in any way, affect the merits of the appeal. The preliminary objection, therefore, fails. In the result, the appeal fails and is dismissed with costs.


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