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Netramani Debi Vs. Lakhminarayan Kar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 240 of 1955
Judge
Reported inAIR1959Ori179
ActsLimitation Act, 1908 - Sections 6 and 7 - Article 118
AppellantNetramani Debi
RespondentLakhminarayan Kar and ors.
Appellant AdvocateG.K. Misra, Adv.
Respondent AdvocateB.K. Pal, Adv.
DispositionAppeal allowed
Cases ReferredImarta v. Sahiram
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....rao, j. 1. plaintiff files this appeal against the confirming judgment of sri t. v. rao, additional district judge of puri dismissing her suit for a declaration that the adoption of defendant no. 1 was not true and valid.2. the plaintiff-appellant netramani debi and defendant no. 3 suryamani devi are the daughters of taluchha brundaban mohapatro and his wife is defendant no. 2 lakshmi dibya. brundaban was the sebayat of the temple of shri jagannath of puri and he died on 3-9-43. lakhmi dibya succeeded to his properties and according to the plaintiffs case, defendant no. 1 lakshminarayan kar, natural son of lokenath kar, had been set up as the adopted son of the deceased brundaban mohapatra by obtaining a fraudulent deed of adoption from the widow of brundaban on 29-9-43 and registered on.....
Judgment:

Rao, J.

1. Plaintiff files this appeal against the confirming judgment of Sri T. V. Rao, Additional District Judge of Puri dismissing her suit for a declaration that the adoption of defendant No. 1 was not true and valid.

2. The plaintiff-appellant Netramani Debi and defendant No. 3 Suryamani Devi are the daughters of Taluchha Brundaban Mohapatro and his wife is defendant No. 2 Lakshmi Dibya. Brundaban was the sebayat of the temple of Shri Jagannath of Puri and he died on 3-9-43. Lakhmi Dibya succeeded to his properties and according to the plaintiffs case, defendant No. 1 Lakshminarayan Kar, natural son of Lokenath Kar, had been set up as the adopted son of the deceased Brundaban Mohapatra by obtaining a fraudulent deed of adoption from the widow of Brundaban on 29-9-43 and registered on 3-11-43 by Lokenath Kar. Two sale deeds were executed by the widow in respect of her husband's property in favour of her daughters, the plaintiff and defendant No. 3, on 29-9-43 for discharging loans incurred for the Sudhi expenses of her husband, but in these documents also she was fraudulently described as the mother guardian of defendant No. 1 who wasdescribed as the adopted son of Brundaban Mohapatra and it is the plaintiff's case that this fraud was not known to the widow and her daughters till 12-8-50 as the documents were in custody of Mohan Mohanty, the power-of-attorney holder of the widow. The plaintiff's case further is that she was a minor when the document was executed and after attaining majority she filed the suit within three years to declare the alleged adoption invalid and that it never took place as there was never any adoption of defendant No. 1; and that the documents executed by the widow were invalid and inoperative against her.

3. Defendants 2 and 3 supported the plaintiff's case in toto. Defendant No. 2 alleged that she never executed any deed of adoption in favour of defendant No. 1 nor executed the kabalas as his mother guardian, but that those documents were obtained fraudulently by her husband's agnates as she was required to execute a power-of-attorney for the management of her properties. They denied also knowledge of the fraud committed till recently.

4. Defendant No. 1 represented by his natural father as guardian-ad-litem contended that he was duly adopted by Bruhdaban Mohapatra on the Gundicha day in 1346 corresponding to 17-6-39; that he was Jiving in Brundaban's house since then and when Brundaban died of cholera, his daughters objected to partake in the Sudhi ceremony unless they were given some properties and consequently the widow executed two kabalas in their favour giving four acres of land each out of the total 14 acres of land and executed the deed of adoption with their knowledge and consent; and that the widow also filed an application before the Raja of Puri for giving sanction to the adoption in order to perform the Seba in the temple. He further alleged that the widow and the daughters were fully aware of the adoption of defendant No. 1 and they were estopped from challenging the same; and that the suit for declaring the adoption as invalid was barred by limitation.

5. The trial court found that defendant No. 1 was duly adopted by Brundaban Mohapatra; and that the deed of adoption was a genuine document executed with full knowledge by the widow in presence of the daughters. It also found that the kabalas executed in favour of the daughters to be in the nature of a family arrangement in settlement of bona fide disputes with them relating to the adoption. It dismissed the suit on the ground that it was not maintainable. But with regard to the contention of defdt. No. 1 that the suit was barred by limitation, the trial court held that the suit was not barred as it was instituted within three years of the minor plaintiff attaining majority.

6. On appeal, the learned Additional District Judge, after a careful consideration of the evidence in the case relating to adoption, held that the adoption was not true, but confirmed the dismissal of the suit on the ground that the suit was barred by limitation. He also found that the plaintiff had knowledge of the adoption since 1943.

7. The main contention put forward by Mr. G. K. Misra, the learned Counsel for the appellant is that the learned District Judge erred in holding that the suit was barred by limitation. According to Mr. Misra, the appellant-plaintiff being a minor at the time when the cause of action arose to declare the adoption invalid she can file a suit within three years after attaining majority. It is not disputed that the suit was filed as alleged by the plaintiff within three years after her attaining majority. The suit was filed by her on 14-8-50. Mr. Misra submits that the fact that the plaintiff's elder sister defendant 1 attain-ed majority long before does not in any way affect her (plaintiff's) right to institute the suit. Mr. Misra's contention is that the interpretation of Sections 6 and 7 of the Indian Limitation Act by the learned District Judge is erroneous and that according to the correct interpretation of those two sections, the plaintiff's suit cannot be held to be barred by limitation. He also contends that the decision relied upon by the learned District Judge in the case of Thiruneelakanta Mudaliar v. Velayudha Mudaliar AIR 1951 Mad 824, does not apply to the facts of the present case and the learned District Judge erred in relying upon that decision in holding that the present suit is barred by limitation.

8. The learned District Judge observed that there was no serious dispute with regard to the date of birth of the appellant. She was born on 16-8-29. Therefore she attained majority on 16-8-47. The suit was filed oh 14-8-50, within three years of her attaining majority.

9. The question raised by the learned counsel for the appellant is an interesting and difficult question of law covered by many diverse decisions of the various High Courts. The two sections on whose interpretation the decision of this question mainly rests are Sections 6 and 7 of the Indian Limitation Act. The article of the Limitation Act which applies for a suit of this nature is Article 118 which prescribes that a suit to obtain a declaration that the alleged adoption is invalid, or, never, in fact, took place should be filed within six years of the date when the alleged adoption becomes known to the plaintiff. It is not disputed before us that the plaintiff had knowledge of the alleged adoption but she being a minor at the alleged date of adoption limitation does not begin to run. Section 6 of the Limitation Act says,

'(1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule.xx xx xx'

Section 7 is as follows:

'Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and 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 or until the disability has ceased'.

Under Section 8 of the Limitation Act, nothing in Section 6 or in Section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or application made.

10. Mr. G. K. Misra contends that in this case though the plaintiff and defendant No. 3 being two sisters are jointly entitled to institute a suit for a declaration of the invalidity of the adoption, yet a discharge cannot be given by the elder sister as contemplated in Section 7 and therefore time will not run as against any of them. Mr. Misra submits that as far as the right to file the suit for a declaration of the invalidity of the adoption is concerned, the elder sister is not, capable of giving a valid discharge andtherefore the plaintiff's suit cannot be held to be barred by time.

11. Section 7 applies to cases where the claim of several persons who are entitled to sue or apply in a joint claim, that is, where several persons have got the same right or cause of action and one could not sue or apply on behalf of all. Where the rights of several persons are distinct and different, but they are permitted to enforce such rights by one judicial process, that is, in a suit instituted by one on behalf of all, this section will not apply. The first part of Section 7 enacts that when a full discharge of the whole debt or claim can be given by any of them without the concurrence of the other or others who are labouring under a disability, none of them shall be entitled to the exemption granted by Section 6. The second part of Section 7 enacts that when one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under a disability, and when a full discharge of the whole debt or claim cannot be given by any of the others without the concurrence of the first, namely, the person who is labouring under a disability, the exemption granted by Section 6 shall be enjoyed by all of them until one of them acquires the legal capacity to give full discharge without the concurrence of the others or until disability has ceased.

Thus it can be seen that the second part of the section extends the provision of Section 6 to some of the cases in which one of the joint plaintiffs or appellants is under a disability. In this case both the sisters are presumptive reversioners. Each in her own right is entitled to succeed to the property after the death of the mother. The ground on which the learned District Judge held that the suit was barred by limitation is that the elder sister could have filed a suit for a declaration of the invalidity of the adoption which suit is a representative suit and the result of which is binding on the younger sister and therefore the elder sister could have given a full discharge. Mr. Misra contends that that view of Section 6 is not correct. According to him, there is no suit filed by the elder sister. He submits therefore that the mere non-filing of a suit cannot amount to a capacity to give a full discharge.

Therefore a consideration of the point involved in this appeal is dependent upon whether the non-filing of a suit for a declaration of the invalidity of the adoption by the elder sister would amount to the condition required that she was capable of giving a valid discharge. On these questions, both the sisters relied upon several decisions concerning the nature and character of a suit by a reversioner for a declaration of the invalidity of an adoption made by the widow or of an alienation made by the widow.

12. In U. N. Mitra's Law of Limitation and Prescription, Seventh Edition, Volume 1, at page 76, it is stated:

'Except in the case of minor twin brothers, the disability of each of several plaintiffs or applicants cannot ordinarily cease at one and the same date. But will each of the such plaintiffs or applicants have a separate statutable cause of action or starting point of limitation from which the prescribed period is to be computed? This question, it is apprehended, should be answered in the affirmative, if the several persons are not jointly entitled to institute a suit or make an application for the execution of a decree, or if one of them is not entitled to sue as representing the whole body, e.g., a presumptive reversioner. Indeed, in the case of persons who are not jointly entitled to institute a suit, if one or some only labour, under some disability or other there is nothing in Section 6 or 7 which disentitles him or them to the privilege given by the law, whatever may happen to the others who do not, labour under any disability. Insuch a case, each of such minors or insane persons may separately institute a suit or make an application and the language of Section 6, as it stands, may be applicable to each without any difficulty. The other claimants (who are not minors, etc.) also may sue for their shares, and are not protected by either Section 6 or Section 7. It has been held in America that if some of several coparceners or tenants-in-common are under a disability, their rights are saved by the exception, but their disability does not preserve the title of the others who are under no disability. In the case of a joint tenancy, or where the parties are entitled to a joint action, the rule is different. Where several persons, though with distinct and different substantive rights, have only one cause of action, that is to say, can sue only once, in a suit by one on behalf of all to which all of them might be made parties, it was held that neither Section 7 nor Section 8 of Act XV of 1877 was applicable'.

13. In the case of AIR 1951 Mad 824, relied upon by the learned District Judge to say that the suit is barred by limitation, a Division Bench of the Madras High Court consisting of Subba Rao, J. (as he then was) and Panchapakesa Ayyer J., held,

'A suit by a reversioner for setting aside an adoption is a representative suit on behalf of the entire body of reversioners. There is one indivisible, cause of action. The presumptive reversioner is the accredited representative of the entire body of reversioners. Contingent and remote reversioners may be allowed to file a suit by a court in any appropriate cases, if the presumptive reversioner was guilty of fraud, collusion, or negligence, or has otherwise precluded himself from representing the reversion. It follows as a corollary from the aforesaid principles that the period of limitation to any such suit will start only from the date of knowledge of the adoption by the entire body of reversioners, that is, by the presumptive reversioner who is the accredited representative of such a body. If the limitation starts from the date of such knowledge the fact that the reversioner next in rank is a minor or is under a disability will not stop the period of limitation from running or give him an extended period of limitation prescribed under Section 6, Limitation Act, although the suit is by the minor'.

In that case the facts were that one Shanmugha Velayudha had six sisters and two brothers, defendants 3 and 4. Sivasubramaniam is one of the sons of defendant No. 3. The plaintiff Velayudha is the son of defendant No. 4. The alleged adopted son is the younger son of defendant No. 3. Thus it is clear that on the death of Shanmugha Velayadha the presumptive reversioners were defendants 3 and 4 and the plaintiff and Sivasubramaniam were the contingent reversioners of equal degree. The plaintiff was a minor at that time and he attained majority only on 19-5-43.

The plaint was filed on 15-6-46 (?) that is, within three years after the plaintiff attained majority. The argument advanced in support of the contention that that suit was barred was that the causei of action for the entire body of reversioners was one and the same; that the suit filed by the presumptive reversioner or under a certain contingency by a contingent reversioner, was a representative suit based upon the same cause of action; that if the cause of action accrued to the body of reversioners, time began to run at once and the fact that one of them was under a disability would not stop the limitation, once commenced; and that as on the death of Sahnmugha Velayudha the presumptive reversioners, defendants 3 and 4 could have filed a suit when they had knowledge of the adoption, the period of limitation for such a suit started under the third column of Article 118, fromthe date of their knowledge of such adoption and was barred after six years from that date.

The contention in support of the plea that the suit was not barred by time was that every reversioner had a separate right to sue; that, in any view, a cause of action could not accrue to the presumptive reversioners, if they were not competent to sue by reason of their collusion, fraud or any other justifiable ground; and that if the plaintiff had the right to sue in his own right, Section 6, Limitation Act would give him the extended period of limitation as he was under a disability to sue when the right to sue accrued to him. On these facts and contentions, the Division Bench of the Madras High Court held after review of certain decisions that the suit was barred. Mr. G. K. Misra, the learned Counsel distinguishes this case by submitting that that case was filed by a remote reversioner. Mr. Misra also submits that certain decisions of the Madras High Court were not placed before the Division Bench to the contrary.

14. In support of his contention Mr. Misra first relied on the decision in the case of V. Venkatanarayana Pillai v. Subbammal AIR 1915 PC 124. It was held in that case :

'Under the Hindu Law the death of the female owner opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her life-time, however the reversionary right is a mere possibility or spes successionis. But this possibility is common to them all, for it cannot be predicated who would be the nearest reversioner at the time of her death. The Indian Law however, permits the institution of suits in the lifetime of the female owner for a declaration that an adoption made by her is not valid, or as alienation effected by her is not binding against the inheritance. The two articles of the Indian Limitation Act (9 of 1908) which deal with these two classes of suits differ widely in their language. Article 118, Schedule 1, contains no restriction as to the person entitled to sue: whilst in Article 125 the suit is contemplated to be by the reason 'who, if the female died at the date of instituting the suit, would be entitled to possession', but it does not follow from these words that the suit brought in the latter case by the nearest reversioner is for his personal benefit, for the object is to remove a common apprehended injury to the interests of all the reversioners, presumptive and contingent alike. Of course, the two classes of suits covered by these two articles are distinct in their scope and character; one relates to status and involves the adjudication of a right in rem; the other raises a question of mere justifiable necessity. But in both 'the right to sue' is based on the danger to the inheritance common to all the reversioners which arises from the nature of their rights'.

The learned counsel for the appellant cited this decision to show that there is a distinction as observed by the Judicial Committee between a suit under Article 112 and a suit under Article 125. In that case one Venkatanarayana brought a suit on 29-7-1907 in the High Court of Madras to obtain a declaration that the adoption of defendant No. 2 by the widow defendant No. 1 was invalid. The High Court held that the adoption was valid. When the matter was pending before the Judicial Committee, the plaintiff and the next reversioner applied for leave to prosecute the appeal. It was opposed on the ground that the petitioner was not the legal representative of Venkatanarayana in respect of the reversionary right claimed by him to the estate of Venkatakrishna and that he could not be substituted in place of the deceased appellant.

The learned counsel relied upon the observation of the Judicial Committee that the 'right to reliefon the part of the reversioners exists severally in order of succession and arises out of one and the same transaction impugned as invalid and not binding against them as a body'. It may be observed that the observation of Judicial Committee though cited by the learned Judges in the Madras case was held to be not reconcilable with the earlier part of the judgment where in clear and unambiguous terms their Lordships declared that a suit by a reversioner was a representative suit and that there was an identity of interest on the part of the general body of reversioners. In the case of Ganga Dayal v. Mani Ram, ILR 31 All 156, the certificated guardian of the two Hindu minors sold certain property of the minors without the sanction of the District Judge, Within three years of his attaining majority the younger of two minors who were brothers sued to avoid sale. The elder, however, had come of age several years earlier and had taken no steps to repudiate the transaction. The Allahabad High Court on these facts held that the suit was not barred by limitation. The learned Judges observed in the course of their judgment:

'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 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'.

Mr. Misra relies on the observation made by the learned Judges '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' and contends that mere non-action cannot come under the expression 'capable of giving discharge without the concurrence of others'. Mr. Misra then referred to the case of the Judicial Committee in the case of Jawahir Singh v. Udai Parkash, AIR 1926 PC 16 and submitted that the Judicial Committee approved of the observation of the Allahabad High Court in the above case, with regard to the question of limitation. In the case of Neelakantamier v. Chinnu Ammal, AIR 1927 Mad 216, the plaintiff brought a suit within three years of his attaining majority to set aside an alienation made by a limited owner. At the time of alienation he was an infant and there were two persons, one his brother and another a cousin, who could have challenged the alienation. They did not choose to challenge it and the plaintiffs suit was more than twelve years after the date of alienation. It was held by Devadoss J. that the suit was barred. Mr. Misra relied upon the observation of the learned Judge to the following effect:

'Section 7 does not apply to the case of reversioner. The whole body of reversioners cannot give a discharge, or, in other words, cannot declare that an alienation is valid'.

Mr. Misra then relied upon the case of Rameyya v. Veerabhadrachari, AIR 1944 Mad 512. In that case two sons and a daughter of the last male-holder fileda suit for setting aside an alienation made by the limited owner and for recovery of possession. The elder of the two attained majority more than three years before suit, but the younger was a minor until within three years before the suit. On the question whether such a suit was barred by limitation either as regards both or at least as regards the elder it was held that though the two sons may take the property with rights of survivorship, it was not coparcenary property in the strict limited sense in which it was used under the Hindu Law; that it was only with respect of coparcenary property that the elder became the manager under the Hindu Law and was therefore entitled to give a valid discharge on behalf of the younger; and that consequently the suit was clearly in time as regards the younger one. It was also held;

'As the two sons of the daughter took the property with mutual rights of survivorship it was strictly a case of joint tenancy and was covered by the expression 'one of several persons jointly entitled to institute a suit,' in Section 7. Therefore, even as regards the elder, time did not begin to run until all the persons entitled to sue became majors'.

The main test, according to the decision, appears to me whether the elder is capable of giving a valid discharge. Mr. Misra submits that this case supports his contention inasmuch as the elder sister could not give a valid discharge as the two sisters succeeded to the property being jointly entitled. In the case of Subbarao v. D. Pattabhiramayya, AIR 1945 Mad 498, a suit by the younger brother constituting a joint Hindu family was tiled within three years of his attaining majority. It was held that such a suit would be barred by limitation if the elder brother had failed to sue within three years of his majority, and was a manager of the family, but that Section 7 would not operate as a bar to the suit by the younger brother if the elder brother was not the manager of the family during the relevant period. In the course of the judgment of the Division Bench consisting of Wads-worth J. and Patanjali Sastri J. (as he then was) it was observed,

'Section 7, Limitation Act, would not operate as a bar if the adult brother was not the manager of the family during the relevant period'.

Mr. Misra on the strength of these above two decisions contends that the real test to see if Section 7 applies or not is whether the elder sister is capable of giving a valid discharge; and that even in the case of two brothers if one is not the manager of the family he could not give a valid discharge clearly supports his contention that the present suit before us is not barred by time. In the case of Kuppuswami Mudali v. Thangavelu Mudaliar, AIR 1947 Mad 102, Somayya J. held:

'A right which two sons of a daughter acquire in the maternal grand-father's property is a joint right, because they take the property with mutual rights of survivorship; but it is not a coparcenary right in which case alone it can be said that the elder brother has the right of giving a valid discharge on behalf of his younger brother. Where, therefore, two sons of one or the daughters who inherit the property of their father fife a suit, before the reversion opens, for a declaration that the alienation made by the other daughter is not valid and binding on them and both of them had been born by the date of alienation and one of them is an adult and the other minor on the date of the suit, Section 7 applies and the entire suit is within time'.

Somayya J. observed in the course of judgment,

'In that case AIR 1944 Mad 512 two daughters' sons inherited their maternal grand-father's property and the suit was filed more than three years after the elder attained majority. That I held would not bar the suit either as against the younger brotheror against the elder brother. That is the effect ofSection 7. If that would be so as regards a suit filed by the plaintiffs for possession after the death of Alamclu Aramal and Kuppammal, the answer must be the same where the suit is filed before the reversion opens and that for a declaration that the alienation made by their mothers is not valid and binding on them. In either case it is a joint right. One of them alone is not entitled to give a discharge without the concurrence of the other as it is not a coparcenary right and hence under Section 7 the entire suit is within time'.

In the case of Gangadeo Singh v. Ramprasad Singh, AIR 1937 Pat 155, it was held :

'Mere coming of age of one of the brothers in a joint Hindu family does not raise a presumption that he is the manager of the family in the absence of any evidence.

Where, therefore, a suit is brought by two brothers out of whom one had become major, for possession of lands of which wrong entry was made in the records of rights, which suit would have been barred by time, but for the minority of one of them, and there is no evidence to show that the major brother was the karta of the family, the suit is not barred as major brother could not have given a valid discharge. In the case of Karan Singh v. Mt. Tetar Kuer A.I.R. 1937 Pat 435, it was held,

'The term 'discharge' in Section 7, Limitation Act, does not mean merely a discharge of pecuniary liability, but has a wider significance and includes a release of rights in immoveable property such as even the equity of redemption or a release of other rights, as for instance a right to institute a suit'.

Mr. Mishra contends on the strength of this decision that there must be some positive act on the part of the elder sister such as a release in order to hold that she is capable of giving a valid discharge without the concurrence of the other sister and that therefore mere non-action in not filing a suit is not enough to hold that the elder sister was capable of giving a valid discharge. In the case of Wali Chand v. Punjab Singh AIR 1932 Lah 39, a Division Bench of the Lahore High Court held:

'While it is true that a suit by one reversioner is for the benefit of the entire body of reversioners, and while it may be that a decision in such a suit would bind the entire body, it cannot be said that the omission by the presumptive reversioners to bring a suit to challenge an alienation must be regarded as depriving the other reversioners of their right to attack the transaction, and in fact the assent of the next reversioner would not bar a suit by the remoter reversioner. The suit of the remoter reversioner, if instituted, within three years of his attaining majority is therefore within time'.

In the course of judgment, it was observed:

'A reference to Section 7, Limitation Act, will show that not only must there be a joint right to sue, but it must be possible for a valid discharge to be given by those who are not under any disability--a discharge that would be binding on the one who is under the disability. While it is true that a suit by one reversioner is for the benefit of the entire body of reversioners, and while it may be that a decision in such a suit would bind the entire body, I do not think it can be said that the omission by the presumptive reversioners to bring a suit to challenge an alienation must be regarded as depriving the other reversioners of their right to attack the transaction'. In the case of Ilahi Bakhsh v. Umar Bukhsh, AIR 1944 Lah 409, a Full Bench of Lahore High Court held: 'If a presumptive reversioner has failed to sue, a remote reversioner, who happens to be a minor at the time of the alienation, can avail Himself of the benefit of Section 6. Section 9 does not come into operation in such a case. Time no doubt will start running both against the major and minor reversioners but they will have their own period of limitation and in no case will the one provided for a minor reversioner be affected by that of a major reversioner, whether of equal or of a different degree'.

In the course of the Judgment, it was observed:

'The position of the next presumptive reversioner in respect to the remote reversioners is not in any way analogous to that of a Karta of a joint Hindu-family. His rights are not the same nor are his obligations and, in my view, he is not empowered to barter away the rights of the remote reversioners in this manner'.

These two decisions of the Lahore High Court directly support the contention of the learned counsel for the appellant.

15. Mr. B. K. Pal, the learned counsel for the respondents contends that a suit by a presumptive reversioner is a representative suit and the decision in that suit would bind the entire body of reversioners and therefore the presumptive reversioners should be held to be capable of giving a discharge without the concurrence of the other. The two sisters are the presumptive reversioners and the elder sister was capable of giving a discharge and therefore the suit by the plaintiff, according to Mr. Pal, is barred by time. The learned counsel further submits that the mere non-filing of a suit for declaration of the invalidity of the adoption by the elder sister is enough and that if the elder sister who could have filed a suit within the period prescribed by Article 118 for the declaration of the invalidity of the adoption did not file a suit, then the suit by the minor sister also after attaining majority would be barred. He relied upon a decision in the case of Varamma v. Gopaladasayya, AIR 1919 Mad 911, a Full Bench of the Madras High Court held:

'When a Hindu widow makes an alienation voidable against the ultimate reversionary heir at her death or remarriage, a single cause of action for the declaration of its invalidity arises at once to be availed of by the next presumptive reversioner by bringing a suit on behalf of the whole body of successive reversioners till the opening of the reversion, and, in case the next presumptive reversioner by collusion or some other act, precludes himself from availing himself of that single causer of action, to be availed of by the next reversioner in order or succession and so on, the suit, whenever brought being based on the same single cause of action, Article 125 is the only Article applicable to a suit based on such single cause of action.

The general principle of law implied in Section 7 is applicable to the case of reversioners, that principle being that, if there are some persons in existence who are adults who could have safe-guarded the common rights of themselves and of others similarly situated the failure of the persons who are sui juris to litigate the right will start the cause of action not only against themselves but also against persons in similar circumstances.'

In the course of judgment, it was observed,

'The principle of that section (Section 7) is that if there are some persons in existence who are adults who could have safeguarded the common rights of themselves and of others similarly situated, the failure of persons who are sui juris to litigate the right will start the cause of action not only against themselves but also against persons in similar circumstances. In my opinion, the general principle of law implied in this section is applicable to the case of reversioners'.

On the strength of this decision Mr. Pal contends that even if the elder sister did not file the suit she can be held to be capable of giving a valid dischargewithout the concurrence of the younger sister. In the case of Ramchandran Potti v. Narayanan Sekha-ran AIR 1950 Trav-Co 57, a Full Bench of the Travancore Cochin High Court held,

'The term 'discharge' used in Section 8 of Travancore Limitation Act is not confined to the discharge of a pecuniary liability but has a wider significance and includes release of rights in respect of immovable property and even the right to institute a suit'.

In the case of Sivanandan v. Bhagvathi Janaki, AIR 1958 Kerala 228, it was held:

'A suit to set aside a sale by a junior member on behalf of his tarwad brought after twelve years from the dale of sale but within three years from the date of his attaining majority would be barred by limitation when there were other junior members who were minors on the date of the transaction but who attained majority more than three years before the date of the institution of the suit but failed to sue for cancellation of the sale deed. In such a case the fact that the plaintiff attained majority within three years from the institution of suit cannot save the suit from the bar of limitation'.

On the strength of these two decisions, Mr. Pal contends that failure to institute a suit by the adult members comes within the scope of capacity to give a discharge. In the farmer case the observation of the Travancore Cochin High Court to the effect that the term 'discharge' used in Section 8 of the Travancore Limitation Act has a wider significance and includes release of rights in respect of immoveable property and even the right to institute a suit is obiter and in the latter case no reasons were given for the decision of their Lordships.

16. In U. N. Mitya's Law of Limitation and Prescription, Seventh Edition, Volume 1, at page 100, it is observed:

'The term discharge' in this section does not mean merely a discharge of pecuniary liability, but has a wider significance and includes a release of rights in immovable property such as even the equity of redemption or a release of other rights, as for instance, a right to institute a suit.'

It follows from this that a right to institute a suit can be made to be included in the term 'discharge' only if there is a release of such right. The mere passive act of not filing a suit can be taken to come under the capacity to give a valid discharge without the concurrence of others. In the case of Imarta v. Sahiram, AIR 1955 N. U. C (Raj) 2176, it was held by Wanchoo, C. J. (as he then was) and Dave, J.,

'When two brothers have got the same cause of action, that is, where all the material allegations giving rise to a right of suit are the same, and where the whole right litigated and the nature of the entire claim litigated are the same and where under such circumstances, the elder brother can institute a suit for himself and his younger brother on that joint right and joint cause of action, the two brothers would be jointly entitled to institute a suit.

But the mere fact that the elder brother had not brought a suit to challenge the alienation within three years of his attaining majority would not bar the suit against the other brothers who were still minors. The expression 'discharge' in Section 7, Limitation Act is inappropriate in the case of a right to set aside an alienation, because there can be no question of a discharge by mere silence of the elder brother in a case where the brothers can file a suit separately also even though the right to file the suit may be a joint right'.

Again, a reading of Section 7 shows that the word 'discharge' cannot include a mere non-filing of a suit. The two sisters are entitled to institute a suit andone of them is under a disability and the clause 'a discharge can be given without the concurrence of such person' cannot by any stretch of imagination be made to include the non-filing of a suit. Both sisters are entitled to institute a suit. Each of them can also institute a suit. It is not necessary to obtain the concurrence to file a suit. Each person can in her own right file a suit. In that view of the matter, non- filing of a suit cannot come under the word 'discharge' as in that case the expression 'concurrence' I of such person would be redundant. The entire expression can only refer to cases where the person attaining majority is capable of giving a discharge' of the right by any positive act even including a release of a right to sue. But a mere passive act of not filing a suit cannot with a reasonable interpretation of Section 7 be made to be included under the word 'discharge'.

17. From a review of all these decisions quoted, above, I am of opinion that though a suit filed by one of the presumptive reversioners is a representative suit and can bind the entire body of reversioners and as such it can be held that the presumptive reversioncr is capable of giving a discharge without the concurrence of others, yet the mere non-filing. of a suit by the presumptive reversioner cannot bar the suit filed by the other reversioner before three years after attaining majority. In this view of the matter, I prefer to follow the view of the Lahore High Court and I am of opinion that the decision reported in AIR 1951 Mad 824 is clearly distinguishable. The Judicial Committee of the Privy Council observed in the case AIR 1915 PC 124 that the right, to relief on the part of the reversioners existed severally in order of succession, and arose out of one and the same transaction impugned as invalid and not binding against them as a body.

If the Madras view as laid down in AIR 1951 Mad 824 is accepted, the right of the reversioners would be defeated if either the presumptive reversioner acts fraudulently or in collusion or merely abstains from filing a suit for some reason or other. This would cause a great deal of inconvenience to the reversioners. In this view of the matter, I am, of opinion that the suit is not barred by time; and that the plaintiff is entitled to sue for a declaration of the invalidity of the adoption. The appellate Court found that the adoption was not true and was invalid.

The plaintiff is, therefore, entitled to succeed. The appeal is allowed, the judgment and decree of the lower appellate court are set aside and the suit is, decreed with costs, throughout.

Barman, J.

18. I agree.


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