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Radha Kant Shukul Vs. Butai Misir and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in94Ind.Cas.922
AppellantRadha Kant Shukul
RespondentButai Misir and ors.
Cases ReferredRati Ram v. Niadar
Excerpt:
limitation act (ix of 1908), section 7 - decree obtained by joint hindu family--manager, whether can give discharge--execution of decree--minor, member--limitation. - .....favour of one har har nath.' this har har nath was not only the father of the present appellant, radha kant, but he was manager of a joint hindu family which consisted of himself and of an uncle and a cousion of his own. he had also another son, radha govind, besides the present appellant, radha kant. radha govind is the elder of the two sons. it is common ground in this appeal that the execution of the decree obtained on the mortgage on 9th april, 1921 is time barred unless radha kant appellant can take advantage of the fact that he was a minor up to march, 1923. both the lower courts dismissed the application as time barred. the lower appellate court has held that the appellant cannot take advantage of section 7 of the limitation act, because his elder brother radha govind who was.....
Judgment:

1. This is an appeal of a decree-holder. The facts are as follows: One Jagesh Miser executed a simple mortgage in favour of one Har Har Nath.' This Har Har Nath was not only the father of the present appellant, Radha Kant, but he was manager of a joint Hindu family which consisted of himself and of an uncle and a cousion of his own. He had also another son, Radha Govind, besides the present appellant, Radha Kant. Radha Govind is the elder of the two sons. It is common ground in this appeal that the execution of the decree obtained on the mortgage on 9th April, 1921 is time barred unless Radha Kant appellant can take advantage of the fact that he was a minor up to March, 1923. Both the lower Courts dismissed the application as time barred. The lower Appellate Court has held that the appellant cannot take advantage of Section 7 of the Limitation Act, because his elder brother Radha Govind who was admitted by him to be' manager of the family to which he and that brother belonged could have given a discharge.

2. In this appeal it is contended that Radha Govind could not alone have given a discharge in respect of the whole mortgage debt, because the other relatives of the father, Har Har Nath, in whose favour the mortgage was originally executed had separated and consequently these members would separately have had to sign any deed of discharge. There appears to us to be no force in this argument. At any rate, Radha Govind could have given a discharge, on behalf of Radha Kant, the minor, and this is all that is required by Section 7 of the Limitation Act. It was held by a Bench of this Court in Rati Ram v. Niadar 49 Ind. Cas. 990 : 17 A.L.J. 649 : 41 A. 435 that the manager of a joint Hindu family, being member of a joint Hindu family, could give a valid discharge on his own behalf and on that of a minor brother. Accordingly, we dismiss this appeal with costs including fees on the higher scale.


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