Skip to content


Ponnamma Pillai Indira Pillai and anr. Vs. Padmanabhan Channar Kesavan Channar Kesavabhavanam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1404 of 1962
Judge
Reported inAIR1969Ker163
ActsLimitation Act, 1908 - Sections 6, 7, 8 and 22 - Schedule - Article 142; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 1
AppellantPonnamma Pillai Indira Pillai and anr.
RespondentPadmanabhan Channar Kesavan Channar Kesavabhavanam and ors.
Appellant Advocate S. Easwara Iyer and; L. Gopalakrishnan Potti, Advs.
Respondent Advocate K.N. Narayanan Nair,; G. Raghava Panicker and; N. Sudhak
DispositionAppeal dismissed
Cases ReferredPeriasami v. Krishna Ayyan
Excerpt:
limitation - time barred suit - sections 8 of limitation act, 1908 - whether plaintiff-appellant would get a period of 12 years from the date when 1st plaintiff became capable of giving discharge without concurrence of second plaintiff that is from date when he became manager of family or three years from that date - first plaintiff was a joint claimant - could have accepted performance of obligation from obligor - was competent to give discharge without concurrence of second plaintiff when he became manager of family - time will continue to run even during disability of a person - in present case plaintiff cannot get more than three years - held, suit rightly held to be time barred by lower courts. - - clearly, therefore, when in respect of a transaction of property possession has.....mathew, j.1. the plaintiffs are the appellants. in this appeal we are concerned only with plaint items 1 to 5 of a schedule properties. these items belonged to the marumakkathayam joint family of the plaintiffs. they were originally allotted to the tavazhl of their mother ponnamma in a partition in their tarwad. ponnamma died sometime in 1941, leaving the two plaintiffs, both minors, as the sole surviving members of the joint family. on 9-6-1943, when the plaintiffs were minors, their father the 4th defendant, purporting to act as their guardian, and their maternal grandparents, sold the properties to the 1st defendant by ext. p-1 and put him in possession. the suit was for recovery of possession of the properties after setting aside the sale deed for the reason that the executants were.....
Judgment:

Mathew, J.

1. The plaintiffs are the appellants. In this appeal we are concerned only with plaint Items 1 to 5 of A Schedule properties. These items belonged to the Marumakkathayam joint family of the plaintiffs. They were originally allotted to the tavazhl of their mother Ponnamma in a partition in their tarwad. Ponnamma died sometime in 1941, leaving the two plaintiffs, both minors, as the sole surviving members of the joint family. On 9-6-1943, when the plaintiffs were minors, their father the 4th defendant, purporting to act as their guardian, and their maternal grandparents, sold the properties to the 1st defendant by Ext. P-1 and put him in possession. The suit was for recovery of possession of the properties after setting aside the sale deed for the reason that the executants were incompetent in law to alienate the properties, and it was filed in forma pauperis on 1-2-1954.

2. The 1st defendant gifted the properties to his children, defendants 5 and 6, by Ext. D-6 dated 7-10-1949. The Courts below have found that Ext. D-6 came into effect, and that defendants 5 and 6 got possession thereunder. When the suit was filed on 1-2-1954, the 1st plaintiff had attained the age of 21. but the 2nd plaintiff was a minor, as he was only 14 years old. Defendants 5 and 6 Were made parties to the suit on 9-8-1955, and so the suit can be regarded as brought against them only on the date When they were impleaded, by virtue of Section 22 of the Limitation Act 1908. In other words, they were impleaded in the suit more than three years after the 1st plaintiff became major and had thereupon became the manager of the family.

3. Both the Courts below held that the suit to recover possession of these items was barred by limitation. They apparently relied upon Sections 7 and 8 of the Limitation Act, 1908, hereinafter referred to as the Act, to come to that conclusion.

4. The main question for consideration in this appeal is whether by the combined operation of Sections 7 and 8, the suit so far as these items are concerned was barred by limitation. It is contended on behalf of the appellants that even if plaintiffs 1 and 2 were jointly entitled to institute a suit, and that the 1st plaintiff became capable of giving a discharge without the concurrence of the 2nd plaintiff when he became major and the manager of the family on 1-2-1951, the suit was within time, as 12 years have not elapsed from that date. It is not disputed that since the persons who executed the sale deed had no authority in law to sell the properties the plaintiffs were entitled to ignore the sale and recover the properties, and that the Article applicable is Article 142 of the Act. So the precise point for consideration is whether the plaintiffs would get a period of 12 years from the date when the 1st plaintiff became capable of giving a discharge without the concurrence of the 2nd plaintiff, namely, the date when he became the manager of the family on 1-2-1951, or only three years from that date. Section 7 of the Act 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.'

Illustrations (a) and (b) to that section read:

'(a). A incurs a debt to a firm of which B. C and D are partners, B is insane and C is a minor. D can give a discharge of the debt without the concurrence of B and C. Time runs against B, C and D.

(b). A incurs a debt to a firm of which, E, F and G are partners, E and F are insane, and G is a minor. Time will not run against any of them until E or F becomes sane or G attains majority.' Merely because two persons can join together as plaintiffs under Order 1, Rule 1, C. P. C. and file a suit, they are not persons jointly entitled to institute a suit within the meaning of Section 7 of the Act. though that is the view taken in the Full Bench decision in Ikkanda Warrier v. Parameswaran Elavath, 38 Cochin 379 (FB) which was followed in the Full Bench ruling of this Court in Kunhammad v. Narayanan Nambudiri, 1963 Ker LJ 1052=(AIR 1964 Ker 8) (FB). We do not think that merely because two or more persons are permitted to join together as plaintiffs under Order 1, Rule 1, and institute a suit, they are persons jointly entitled to institute a suit within the meaning of Section 7 of the Act. In Muhammed v. Alikutty, 1963 Ker LJ 536 one of us had occasion to consider this question and there, it was held that Section 7 applies only to cases of personswhose substantive right is joint, and not to persons whose substantive rights are several, though they may join together under Order I, Rule 1. C. P. C. for the purpose of instituting a suit We think that the correct rule has been laid down in the latter case. Being members of a joint family the plaintiffs here were jointly entitled to the properties and so they are undoubtedly persons jointly entitled to institute a suit to recover the properties.

5. The question whether the 1st plaintiff was competent to give a discharge without the concurrence of the 2nd plaintiff when he became the manager of the family on his attaining majority, does not admit of any doubt in view of what the Supreme Court said in Sarda Prasad v. Jumna Prasad. AIR 1961 SC 1074. There it was held, that under the Hindu law, the kartha of a joint family represents the members of the family, and has the power and duty to take action, which binds the members of the family in connection with all matters regarding the management. The Court said:--

'Under the Hindu law the kartha of a Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly, therefore, when in respect of a transaction of property possession has to be received by the several members of the family, it is the Kartha's duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as who are not.'

We think that the 1st plaintiff was a joint claimant, who could have accepted performance of the obligation from the obligor, and was thus competent to give a discharge to him without the concurrence of the 2nd plaintiff when he became the manager of the family.

6. Then, the further question is whether despite Section 8, the plaintiffs will get 12 years from the date when the 1st plaintiff became the manager, to file a suit. Section 6 makes it clear that time will continue to run even during the disability of a person. What Section 6 has done is not to give a fresh starting point of limitation, but to extend the period of limitation prescribed in the First Schedule. The section does not prevent the running of time as against a person under disability. The provision that the suit or application may be filed 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 does not mean that limitation will not run at all during the continuance of the disability. The provision onlymeans that the person under disability is entitled to an extension of time till the expiry of the period mentioned in the schedule calculated from the cessation of his disability (subject to the limit mentioned in Section 8).

7. In Seetarama Raju v. Subbaraju, AIR 1922 Mad 12 the question whether limitation will run against a person under disability was considered. The facts of the case are: A Hindu who was insane, was entitled to certain properties; his wife, acting as his guardian, transferred certain properties to a person without consideration and necessity. The insane person died as insane and was succeeded by his widow. After the widow's death, a reversioner of the insane person sued the transferee for the recovery of the properties. The transferee contended that the suit was barred by limitation, as he had been in adverse possession from the date of the transfer, and as more than twelve years had elapsed from that date. The reversioner contended that as the original owner had been a lunatic till his death, limitation could not have begun to run during his lifetime, and as reversioner, he was not bound by the limitation that might run as against the widow. The contention was overruled and it was held that the lunacy of the original owner did not prevent the running of limitation against him. The Court said:

'The section of the Limitation Act shows that, though time begins to run against minors and lunatics an extended period of limitation is given. ...............

X X X X X

It seems to us from the provisions of the Limitation Act that lunacy or minority would not by itself prevent limitation from running as against a lunatic or minor. ...............'

This principle explains the reason why when a right to sue accrues to a person under disability in respect of some property and the property is transferred to another, limitation as against the assignee is calculated from the date on which it will ordinarily have begun to run and not from the date of the assignment. The wording of the section makes it clear that even if a person is a minor it will be open to his next friend to institute a suit. Although a guardian is not obliged to file a suit, there is nothing prohibiting him from filing one on behalf of a person while he continues under a disability after the ordinary period of limitation. The wording of Section 7 creates some difficulty, because the latter part of that section says that 'time will not run as against any of them until one of them becomes capable of giving such a discharge, without the concurrence of others or until the disability has ceased', which would seem to imply that the starting point of limitationitself is postponed until after the capacity to give a discharge has been acquired by one of them, or until the disability has ceased. But Section 7 is really an appendix to Section 6. A harmonious construction of the two sections would require the view that in both sections the period of limitation is only extended. We do not think that if the legislative purpose in Section 6 was to extend the period of limitation, the aim in Section 7 was different, as Section 7 is only an application of the principle in Section 6 to a joint right inhering in a group of persons, some or all of whom are under the disability. It is the existence of a person in the group with a capacity to give a discharge without the concurrence of the others, which makes time run as against all in the group. The disability of the other persons in the group does not prevent the running of time, and it is not the cessation of the disability of one in the group, but the attainment by him of the capacity to give a discharge without the concurrence of the others that makes time run as against all. This would show that even on the literal construction of Section 7, time would run even if one or more persons in the group are under disability. That this is the proper way to look at Section 7 is made clear by Section 8. Section 8 speaks of extension of the period within which the suit must be filed.

'Nothing in Section 6 or in Section 7 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.'

Now let us see whether time will be extended for more than three years from the date when the 1st plaintiff became the manager. What is contended for by the appellants is, that Section 8 extends the period within which the suit must be instituted to a maximum of three years only in cases where the disability has ceased or of the death of the person affected thereby, and that the section does not provide for a case like the one here where the disability has continued, as admittedly the 2nd plaintiff was a minor on the date of the suit and was therefore under disability. If all or some in a group are under the disability and none of them acquired the capacity to give a discharge, without the concurrence of the others, then, it is plain, that a suit must be brought within the maximum period of three years from the date of the cessation of the disability of the last of the persons under disability. If that be so, we can see no reason why the plaintiffs here should get 12 years from the date when the 1st plaintiff became capable of giving a discharge without the concurrence of the other, as the reasonfor limiting the period of extension to the maximum of three years obtains here also. That reason, as we understand it, is the attainment of the capacity by the group to give a discharge either by one in the group, acquiring the capacity to give it without the concurrence of the others, or by all or such of them as were under disability in the group ceasing to be so.

It was said that in the former case the one in the group is entrusted by law with a power to bind the others; and to safeguard the interest of the others, it is necessary that the normal period of limitation should be made available to them and that that is the reason why Section 8 visualises only cases of cessation of the disability, or the death of the person affected thereby and not cases where one in the group acquires the capacity to give a discharge without the concurrence of the others. We are not sure whether this is a reason at all for making a distinction. The law, when it gives power to a person in a group to give a discharge without the concurrence of the others in certain events, must be presumed to have made an assessment of the consequences involved in conferring such a power. There is apparently no reason why the legislature should treat the two cases differently. The right being joint cannot be barred in respect of some and not barred in respect of the others. In such a case time will run against all or none. In the one case, by virtue of the capacity to give a discharge without the concurrence of the others which law confers on one in the group, the extension of time is from the date of the acquisition of such capacity by that person. In the other, when all in the group ceased to be under disability the extension of time would be from the date of the cessation of the disability of the last of the persons under disability.

8. It was then argued that the words in Section 8 namely, 'the period within which any suit must be instituted or application made' would indicate that it is not the period of limitation prescribed by the schedule that is extended, but that the starting point of limitation has been postponed. We have endeavoured to answer this contention. We said that what Sections 6 and 7 postulate is an extension of the period of limitation from the cessation of disability and not a postponement of the starting point to the cessation of disability. It is significant in this connection that Section 8 of the Limitation Act 1963, uses the expression 'the period of limitation for any suit or application' instead of the words 'the period within which any suit must be instituted or application made'. We do not think that the language was altered to change the law, but only to clarify it.

9. The question whether in a case like the present one Section 8 would curtail the period of extension to three years directly arose for consideration in Kolandavel v. Chinnappan, AIR 1965 Mad 541, in that case, A died in April 1948 leaving behind him his widow and three sons, A had executed a sale deed on 10-2-1940 of certain properties in favour of the 2nd defendant. The sale was in his own capacity and as guardian of his minor sons. The 2nd defendant sold the properties to the 1st defendant on 17-8-1942 and possession passed from A to the 1st defendant. On 9-1-1958 the plaintiffs, two of the sons of A, filed a suit for partition and separate possession of their two-thirds share in the properties. The third son was made the 3rd defendant and the widow, the fourth defendant. The 1st plaintiff was born in 1928, the 2nd plaintiff in 1931, and the 3rd defendant in 1937. The 1st plaintiff attained majority in 1946 and became the manager of the family on the death of his father in April1948. The 2nd plaintiff became major in1949. The Article of the Act applicable was assumed to be Article 127, which prescribes a period of 12 years. It was held that the 1st plaintiff as manager, could have given a valid discharge on behalf of his brothers without their concurrence in 1948, and that the suit should have been filed within three years of his becoming the manager. In the course of the judgment, the learned Judge observed:--

'Learned Counsel for the plaintiff-appellants contended that Section 8 provides a limitation in cases of cessation of the disability, and that incapacity to give discharge is not a disability contemplated under Section 8. But this interpretation overlooks that Section 7 only lays down conditions under which the disability of one of the joint plaintiffs or applicants shall or shall not entitle any of them to the exemption to which the former, if he were a sole plaintiff or sole applicant, would be entitled. Section 7 only supplements Section 6 of the Act, and the three sections should be read together. As summarised in Mitra's Law of Limitation and Prescription, Vol. I, 7th Edition, at page 101: The law allows the maximum period of three years from the statutable cause of action or the full period from the ordinary starting point of limitation, whichever is more advantageous to the plaintiff. A person under disability may institute a suit within the same period after the disability has ceased as he would otherwise have been allowed under the 1st Schedule, but subject to the proviso that the time shall not in any case be extended for more than three years from the cessation of the disability'.'

10. In Narasimha Deogaru v. Krishnachandra, AIR 1920 Mad 793 the suit was to enforce a partition of partible Zamindari by the plaintiffs who were excluded from possession of the property. The Article applicable to the case was assumed to be Article 127 of the Act. The exclusion was in 1898. The 1st plaintiff had attained majority in 1909 and the 2nd plaintiff in 1913, The suit was filed on 27-9-1916, that is, nearly seven years after the 1st plaintiff became major and three years and a little more than a month after the 2nd plaintiff attained majority. The Court observed:

'I am also of opinion that Section 7 of the Limitation Act applies to this case. The 1st plaintiff attained majority in 1909, and then, as the eldest member of the family, supposing he was a member of a joint Hindu family, as claimed, he could give a discharge on behalf of himself and his younger brother, the 2nd plaintiff. I do not think that the application of Section 7 is excluded because in this suit the plaintiffs have asked for partition. They had been excluded from their family property, and it was open to the 1st plaintiff to have instituted a suit to recover the property for himself and his younger brother, the 2nd plaintiff. A Full Bench ruling of this Court has held that Section 7 is applicable to such cases, and therefore the non-failure of the 1st plaintiff to sue within three years after attaining majority would be sufficient in itself to bar the suit.'

Abdur Rahim, J., said after quoting Section 8:

'The effect is that time runs against a minor just as against a person sui juris, but in the case of a minor, he will have three years more after the cessation of a disability if the period of time allowed for the suit or application expired before he attained majority. In some cases, it may be that the time would not as provided in the articles expire before a minor attains majority. Then he will have that time within which to institute the suit that is, in no case he shall have less than the time allowed by the articles but in certain cases he will have three years more after the cessation of the disability.'

Spencer, J., said:

'The concession which Section 6, Limitation Act allows to minors is that they may sue within the same period after the disability has ceased as would be allowed by the appropriate article of the schedule to the Act. This concession is however limited by Section 8 to a maximum of three years from attainment of majority. Where Col. 2 of the schedule provides for a longer period of limitation than three years, the disability of minority cannot have the effect of extending the period which is running during theminority of a plaintiff to more than three years. This is the effect of Section 8 read with Section 6.'

No case has been brought to our notice, in which, it was held that Section 8 would not limit the extension of the period of limitation to three years in a case where a person in the group acquires the capacity to give a discharge without the concurrence of the other or others from the date of its acquisition. When one in a group acquires the capacity to give a discharge without the concurrence of the others, the disability of the group in whom the right vests jointly to give a discharge ceases, as time, in terms of Section 7, runs from that date, notwithstanding the disability by reason of minority, idiocy or insanity of one or more in the group. And how can time run unless the disability has ceased, and what is the disability that has ceased in order that time may run, when we find that one or more in the group are still under the disability mentioned in Section 6 We think that the disability that has ceased is the disability of the group in whom the right vests jointly to give a discharge, and that is by reason of the acquisition of the capacity by one in the group to give a discharge without the concurrence of the others. Therefore, when Section 8 speaks of the cessation of the disability, it means cessation of the disability arising from the want of the capacity of the group to give a discharge. That disability would cease when one in the group acquires the capacity to give a discharge without the concurrence of the others.

When the law confers the capacity on one in a group to give a valid discharge without the concurrence of the others of an obligation owing to them jointly (in this case to restore the properties trespassed upon), there is no longer any reason for treating the case differently from the case where all the members of a group have ceased to be under disability, without any one of them acquiring the capacity to give a discharge without the concurrence of the others, except that in the former case the disability of the group to give a discharge ceases, when one in the group acquires the capacity to give it without the concurrence of the others; whereas in the latter the disability of the group to give a discharge ceases only when the last of the persons under disability ceases to be under it. As we have said, if in the latter case the suit must be filed within three years of the last of them ceasing to be under disability, we perceive no reason why in the former, the suit need not be filed within the same period, for, in both cases the real disability is the incapacity of the group to give a discharge of an obligation owing to them jointly, though that arises from the minority, idiocy or Insanity of all or some in the group; and in the one case the disability ceases when one in the group acquires the capacity to give a discharge without the concurrence of the others, and in the other when all in the group acquire the capacity to give the discharge jointly. The soul of law is reason and If there is no reason for making the distinction between the two cases, a strict adherence to the ambit of the expression 'cessation of the disability' In Section 8 as confined to the disability mentioned in Section 6, may not be the best means to understand the aim and purpose of the legislature.

In this case the 1st plaintiff acquired the capacity to give a discharge without the concurrence of the other when he became the manager on 1-2-1951. Under Section 8 the plaintiffs cannot get more than 3 years from that date to file the suit. The suit was therefore barred. The Courts below were right in their conclusions. We would dismiss the appeal with costs.

Raman Nayar, J.

11. I am afraid I have to differ from my learned brethren regarding the applicability of Section 8 of the Indian Limitation Act, 1908 (the Act, for short) to a case like the present where. Section 6 of the Act notwithstanding, time is set running by Section 7 thereof against all of several joint claimants ('persons jointly entitled to institute a suit', in the language of that section), one or more of whom is under disability, the moment any one of them becomes capable of giving a discharge without the concurrence of the others. For it seems to me clear from a plain reading of the statute that Sec. 8 does not apply to such a case, and that, for bringing a suit, the entire period specified in the second column of the Schedule is available from the moment time is thus set running by Section 7, uncurtailed by the three-year ceiling of Section 8. And, I cannot bring myself to jettison the plain language of the statute for what is assumed to be assumed by the decisions, or, for what one may think the statute ought to have said in place of what it has actually said.

12. Sections 6, 7 and 8 (in so far as is material for our purpose) run thus:

'6(1). Where a person entitled to institute a suit 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 x x x 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

'7. Where one of several persons jointly entitled to institute a suit x x x x 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. Illustrations

(a) A incurs a debt to a firm of which B, C and D are partners. B is insane and C is a minor. D can give a discharge of the debt without the concurrence of B and C. Time runs against B, C and D.

(b) A incurs a debt to a firm of which E, F and G are partners. E and F are Insane, and G is a minor. Time will not run against any of them until either E or F becomes sane, or G attains majority.

'8. Nothing in Section 6 or in Section 7 x x x x shall be deemed to extend, for more than three years from the cessation of the disability x x x x the period within which any suit must be instituted x x x x'.

13. What Section 6 says (confining ourselves, as I shall hereafter do, to the disability of minority) is that when a person to whom a right to sue accrues, is, at the time, a minor he (but subject to Sub-section (3) of the section, not any other person on whom the right may subsequently devolve) may institute the suit within the period specified in the second column of the Schedule, reckoned from the later point of time when he attains majority (in other words, when his disability ceases) instead of, as one ordinarily should, from the earlier point of time specified in the third column of the Schedule, the time when the right to sue accrues. (Of course there is nothing to prevent him from instituting the suit, by a next friend, while still a minor, for, although generally speaking, the Act sets time running the moment the right to sue accrues, that is not the invariable rule. Time may begin to run, as in a case of disability, only some time after the right has accrued; and there are instances, very rare no doubt, where it can begin to run earlier).

As the Section itself says, the period of limitation (the proper meaning of which term is the period of limitation specified in the second column of the Schedule -- see Section 3 of the Act and Section 2 (j) of the Limitation Act of 1963) remains the same; only, because the period is to be reckoned from a later date, in other words, because the starting point for limitation is postponed, or, in the language of Section 7 of the Act, time begins to run only from the later date, the period (in other words, the time) within, which the suit must be instituted (to adopt the language of Section 8, not, be it noted the period of limitation for the suit) is extended. (When it is remembered that the starting point is postponed only in favour of the minor, time being arrested only so far as he is concerned, and not in favour of any other person on whom the right to sue might subsequently devolve, as against whom time must be regarded as having begun to run when the right to sue first accrued, it seems scarcely necessary to strain the language of Section 6 and say, contrary to what Sections 7 and 8 say, that what that section really does is not to arrest the running of time as against the minor but to extend the period of limitation for him by the period between the accrual of the right to sue and his majority.

The question of limitation arises for consideration only when the suit is brought and the inquiry is, when must time be reckoned as having begun to run against the person who has brought the suit, not when it began to run as against the person to whom the right to sue belonged at the time the right accrued. And I might observe that Section 8 of the Limitation Act of 1963 in an attempt to improve upon Section 8 of the Act, probably influenced by decisions like AIR 1922 Mad 12, inaccurately, especially so in view of the definition of, 'period of limitation' in Section 2 (j) thereof, speaks of extending the 'period of limitation for any suit' instead of 'the period within which any suit must be instituted,' Section 9 of the Act also shows that what Section 6 does is to stop time from running until the cessation of the disability sets it running).

14. Section 7 applies the principle underlying Section 6 to the case of joint claimants, one or more of whom is under disability when the right to sue accrues. If a discharge can be given without the concurrence of those under disability, time is not arrested and runs against them all. If no such discharge can be given, tune does not run as against any of them. But, it is set running as against all the moment any one of them becomes capable of giving a discharge without the concurrence of the others, or all of them cease to be under disability. (See Ahinsa Bibi v. Abdul Kader Saheb, (1902) ILR 25 Mad 26 at p. 38). Two starting points are thus postulated for the running of time, one the emergence of a discharge-giver, and, the other, the cessation of the disability of all the joint claimants; and, so far as Section 7 is concerned, the entire period specified in the second column of the Schedule is available for the institution of the suit from the earlier of these two starting points.

15. Does Section 8 then operate to cut short this period to three years (when the period specified in the Schedule is more than three years) in a case like thepresent where time is set running under Section 7 by the emergence of a discharge-giver? (Of course there is no question of Sections 6 and 7 operating to extend 'the period within which any suit must be instituted', or of Section 8 to limit the extension to three years, unless the period of limitation computed from the ordinary starting point specified in the third column of the Schedule has expired). That will depend entirely on whether the acquisition by one of the joint claimants of the capacity to give a discharge without the concurrence of the others is the cessation of a disability within the meaning of Section 8; for, the starting point specified by that Section for its three-year ceiling is the cessation of the disability, not the point when time is set running under Section 6 or 7. That, I am clear, it is not.

In the first place, having regard to the ordinary meaning of the word one would not call the lack of a special capacity, like the capacity to give a discharge so as to bind another, a disability. (No one, I suppose, would say that a man who is unable to run a mile under four minutes abours under a disability!). Secondly, and this it seems to me puts the matter beyond the shadow of doubt. Section 8 which is in the nature of a proviso to Sections 6 and 7 speaks of, 'the disability', not of, 'a disability'. Obviously, the disability referred to is the disability mentioned in Sections 6 and 7. The only disabilities mentioned in Section G are minority, insanity and idiocy, and the 'any such disability' of Section 7 can take in only these disabilities, not what my learned brethren have chosen to call, 'the disability of the group to give a discharge'. Indeed Section 7 itself makes it plain that the inability or want of capacity to give a discharge is not a disability -- the two are treated as entirely different things.

16. Much of the confusion, If I may say so, has arisen because illustration (b) to Section 7 takes a case where all the joint claimants, each of whom would, if sui juris, be capable of giving a discharge, are under disability, and then goes on to say that time will not run against any of them until the disability of at least one of them ceases, without explaining that it is not the cessation of the disability that sets time running -- if the cessation were to set time running it must be of all, not of one alone -- but the acquisition of the capacity to give a discharge following upon such cessation. (Surely, the acquisition of the capacity is not the same thing as the cessation of the disability, even if, in a given case, the one follows as a consequence of the other). That gives the false impression that it is the cessation of the disability that sets time running, the disability having stopped it, and that therefore, Section 8 applies to impose its three-year ceiling.

17. Almost all the decided cases, likewise, deal with joint claimants who are members of a Hindu joint family, all of whom are minors when the right to sue accrues and the eldest of whom, on attaining majority, becomes the manager of the family and thus becomes capable of giving a discharge without the concurrence of the others. Like illustration (b) to Section 7, the decisions speak of time beginning to run from the moment the oldest becomes a major (instead of, as they really should, from the moment he becomes capable of giving a discharge -- as in the case considered in Jawahir Singh v. Udai Parkash, 53 Ind App 36= (AIR 1926 PC 16) the oldest need not become the manager and thus become capable of giving a discharge on becoming a major), thus giving the same false impression. And, if the period of limitation happens to be three years, as it does in the most of the cases, -- most of them fall under Article 44 of the Schedule -- that only adds to the confusion. For, the decisions then speak of the suit having become barred on the expiry of three years after the oldest of the joint claimants had attained majority, without explaining that this period of three years is the period of limitation for the suit; and they thus complete the false impression that the conclusion is reached by applying the three year ceiling of Section 8. Doraisami Sirumadan v. Nondisami Saluvan, ILR 38 Mad 118=(AIR 1915 Mad 1201), Surayya v. Subamma, AIR 1928 Mad 42, Jaddu Padhi v. Boddu, AIR 1934 Mad 469 (which demonstrates how misleading is the headnote in 53 Ind App 36=(AIR 1926 PC 16), the implication whereof that, wore the elder son capable of giving a discharge, the suit would have been barred on the expiry of three years after he had attained majority, is certainly not borne out by the judgment of their Lordships), Karan Singh v. Mt. Tetar Kuer, AIR 1937 Pat 435 and Devaki v. Kannan, AIR 1941 Mad 678 cited in support of the proposition that Section 8 of the Act applies to a case like the present are all cases of this description. In none of them is any reference made to Section 8 of the Act -- I am leaving out of account the headnotes --and in all of them, except perhaps in the last mentioned case, the article of limitation was, clearly. Article 44.

18. The only instances brought to my notice where the result was reached in a case of the acquisition of the capacity to give a discharge by an express application of Section 8 are the judgment of Abdur Rahim, J., in AIR 1920 Mad 793 (Spencer, J., the other member of the Bench, it may be noted, was content to rest his decision on the ground thatmore than three years had elapsed after both the joint claimants had attained majority) and the decision in AIR 1965 Mad 541. Neither explains how the acquisition of the capacity to give a discharge is the cessation of a disability within the meaning of Section 8 so as to bring that section into play, and, with great respect, I am unable to regard them as laying down the correct law.

19. It was suggested in the course of the hearing that where, as in this case, one of the joint claimants has become a major after the right to sue accrued, there is a cessation of a disability attracting Section 8 of the Act irrespective of whether or not the cessation set time running under Section 7. If that be so, the section should be attracted whether or not the cessation of the disability brought with it the capacity to give a discharge, and the Privy Council and all the High Courts must be wrong -- it is necessary to refer only to 53 Ind App 36= (AIR 1926 PC 16) and 1963 Ker LJ 1052= (AIR 1964 Ker 8) (FB). And, where no discharge-giver emerges, joint claimants, all of whom are minors when the right to sue accrues, would be in a worse position than joint claimants some of whom are majors. But it is clear that the disability referred to in Section 8 can only be a disability which arrests time under Section 6 or 7 and the cessation of which sets time running. For it is only in the case of such a disability, that Section 6 or 7 extends the period within which any suit must be instituted.

20. I am asked why the Legislature should make a difference between a case where time is set running under Section 7 of the Act by reason of one of several joint claimants acquiring the capacity to give a discharge without the concurrence of the others, and a case where it is set running by reason of all the joint claimants having ceased to be under disability. I do not think that such a question can arise where, as here, the language of the statute is clear and unambiguous and can admit but of one meaning -- it is no part of the duty of the courts to justify the ways of the legislature -- although, I would be the first to concede that, where the apparent meaning of a statute would lead to injustice, absurdity or meaningless discrimination, that should put one on further inquiry as to whether that is the true meaning and would provide a legitimate occasion for the exercise of a beneficent judicial ingenuity for discovering an alternative meaning which would not have these unsatisfactory results.

Whatever may be its ultimate object, whether the capture of the often elusive phantom of legislative intent, or of the more elusive phantom of social good, theimmediate quest in all judicial construction of a statute (as of any other instrument) is to ascertain what a reasonable man, who has taken care to inform himself fully of the content, would understand by the words used, not to discover secret meanings from hidden clues as disclosing the true intention of the legislature. For, a Court can gather the intention of the legislature only from the words it has used, having due regard to the context -- how far one can proceed beyond the statute itself for discovering the context seems to be a matter of controversy -- and it would be unjust to bind the subject by a statute which a reasonable man cannot properly understand. In areas where the legislature has validly spoken, there is no scope for judicial legislation.

21. But, obviously, there Is a lot of difference between a case where the laches of a person are visited only on himself and a case where they are visited on others as well, especially so, when the others are persons deserving of the special protection of the law. It seems to me but reasonable that, in the former case, a limit should be imposed on the extension of time afforded by Section 6 or 7 but that, in the latter case, the full period of limitation after time is set running by Section 7 -- and such a case can arise only under that section --should be available.

22. With great respect it seems to me that the conclusion reached by my learned brethren that the disability referred to in Section 8 of the Act is not confined to the disabilities mentioned in Sections 6 and 7 but includes the incapacity of one of several joint claimants to give a discharge without the concurrence of the others, is not warranted by the statute. It is opposed to the plain meaning of the statute and it denies Section 7 its full operation by imposing on it the limitation in Section 8 in an area where that section does not really apply.

23. To come to the case on hand, we are now in this second appeal, concerned only with the property comprised in Items 1 to 5 of Schedule A to the plaint; and the only contention urged on behalf of the appellant plaintiffs is that the Courts below erred in dismissing their suit for possession of this property on the score that it was barred by limitation -- so far as the remaining items of property are concerned the decree of the court below has become final.

24. The property belonged to the marumakkathayam joint family of the two plaintiffs (a sister and brother governed by the provisions of the Travancore Nayar Act, 1100), having been allotted to the thavazhee of their mother, Ponnamma, in the partition of their tarwad, Ponnamma died in 1941 leavingthe two plaintiffs, both minor, as the sole surviving members of the joint family. On 9-6-1943, when both plaintiffs were still minors, their father, the 4th defendant, purporting to act as their guardian, and their maternal grand-parents (of whom the grandmother is the 3rd defendant) sold the property to the 1st defendant by means of Ext. P1 and put him in possession. (It is conceded that these persons had no manner of authority to sell the property of the plaintiffs, that the plaintiffs are entitled to ignore the sale even if it was for necessity, and that their suit for possession brought, in forma pauperis, on 1-2-1954 falls within Article 142 of the Act. By reason of the proviso to Sub-section (1) of Section 10 of the Nayar Act, the father is not the guardian of his minor children in respect of their tarwad property. Nor are the grand-parents guardians at all, and the maternal grandmother, being divided from the plaintiffs, was no more the manager of their joint family than the grandfather.

It is generally assumed -- with what justification we have not been called upon to consider -- that Section 10 of the Nayar Act makes complete provision for guardianship displacing the customary law in the matter; that a minor can be represented in respect of his interest in tarwad property only by the karnavan and not by a guardian; and that when all the members of a tarwad are, as in the present case, minors, so that there is no karnavan, there can be no binding alienation of tarwad property howsoever dire the necessity). By Ext. D-6 dated 7-10-1949, the 1st defendant gifted the property to his children, defendants 5 and 6, and the finding of the Courts below that this was an operative transaction and that defendants 5 and 6 are in possession thereunder, rejecting the plaintiffs' case that it was sham and nominal and that the 1st defendant continued in possession, has not been questioned before us. The suit, as we have seen, was brought on 1-2-1954, the very day on which the 1st plaintiff attained the age of 21 -- her younger brother, the 2nd plaintiff was still a minor then, being only 14 years old -- but defendants 5 and 6 were made parties to the suit only on 9-8-1955, and it is not disputed that, by reason of Section 22 of the Act, the suit can be regarded as having been brought against these persons only on that date, in other words, more than three years after the 1st plaintiff had become a major and had, thereupon, it is not disputed, become the manager of the joint family,

25. Although they have not referred to the relevant statutory provisions it would appear that it was by an application of Section 8 of the Act (to curtail the 12 year period given by Article 142 read with Section 7 of the Act from the time the 1st plaintiff became capable of giving a discharge) that the courts below came to the conclusion that the suit was barred by time.

26. The Indian Limitation Act, 1877. Section 8, said, 'one of several joint creditors or claimants' instead of, 'one of several persons jointly entitled to institute a suit or make an application for the execution of a decree' as Section 7 of the Act does. The change was in accordance with the suggestion made by Bhashyam Ayyangar, J., in Periasami v. Krishna Ayyan, (1902) ILR 25 Mad 431 at p. 442 (FB) so as to make the section expressly applicable to applications for execution; but it otherwise made no difference to the sense. 'Persons jointly entitled to institute a suit', it seems to me, means persons whose title sued upon is a joint title; the phrase does not include persons who. though their titles are distinct and different, are permitted to enforce such separate titles by one judicial process as under Order 1, Rule 1 of the Civil Procedure Code. To say that all persons who may join as plaintiffs In one suit under Order 1, Rule 1, of the Code are persons jointly entitled to institute a suit within the meaning of Section 7 of the Limitation Act, would lead to the manifest absurdity that a person whose title is distinct and separate but has allowed his claim to become barred by time can take advantage of the minority of some other person merely because the right to relief of both is in respect of or arises out of the some act or transaction or series of acts or transactions and a common question of law or fact would arise, (The numerous victims of a railway accident, some of whom might be babes in arms, would be an apt illustration). I am in respectful agreement with the view taken by a Division Bench of this Court in 1963 Ker LJ 536 that Section 7 applies only to cases of persons whose title to the subject-matter of the suit is joint, in other words, whose substantive rights are joint, and not to persons whose substantive rights are several although, under the procedural law, they are permitted to join in one suit With equally great respect I am unable to accept the contrary view taken in 38 Cochin 379 (FB) although it seems to have found favour with My Lord the Chief Justice in 1963 Ker LJ 1052=(AIR 1964 Ker 8) (FB).

27. The several members of a joint family are joint owners of the family property and their title in a suit in respect thereof is a joint title, not several. They are undoubtedly persons jointly entitled to institute a suit in respect of the property within the meaning of Section 7. As I have already shown, the words, 'any such disability' in Section 7 referto the legal disabilities enumerated in Section 6, namely, minority, insanity or idiocy at the time the right to sue accrues. In the present case, both the persons jointly entitled to institute the suit, namely, the two plaintiffs, were under such a disability, and, there being no question of either being then capable of giving a discharge, the first part of Section 7 cannot apply so as to put time to motion against either. The question then is whether, on becoming the manager of the joint family on attaining majority, the 1st plaintiff became capable of giving a discharge without the concurrence of the 2nd plaintiff so as to put time in motion as against both by reason of the second part of the section. So long as no such discharge can be given, time will not run as against either until the disability of both has ceased, but if the 1st plaintiff became capable of giving such a discharge time would begin to run against both from the moment he became so capable -- see proposition (d) of the four propositions stated by Bhashyam Ayyangar, J., in (1902) ILR 25 Mad 26. Of what is it then that Section 7 contemplates the giving of a discharge? Surely there cannot be a discharge of a right. The discharge must be of the corresponding liability or obligation, and, as is made clear by the decision in AIR 1961 SC 1074, the discharge of which Section 7 speaks is the discharge of the obligation sought to be enforced. Therefore, on the question of capacity to give a discharge, the question whether the right of a junior member to institute a suit to recover property of the joint family is an individual right personal to him, or is a joint right exercised by him on behalf of the family and in respect of which the manager can give a discharge, which largely figured in 1963 Ker LJ 1052=(AIR 1964 Ker 8) (FB) (the conflicting views said to have been expressed wherein have been responsible for this case coming before a Full Bench) seems to me irrelevant. The question is whether the title put in suit, not the right to sue, is joint

28. Some confusion has been caused because of decisions speaking of the discharge or release of the right or of the release of the obligation. The question is not whether one of the joint claimants can by abandoning the right, or releasing the obligant from the obligation, dispense with performance so as to bind the other joint claimants, something which, so far as I am aware, is not possible except by a contract binding on the others. It is whether one of the joint claimants can, by accepting performance, give the obligant a valid discharge as against the other joint claimants as well. Now what is the obligation or liability of a trespasser on property? It is to restore theproperty to the owner with mesne profits. And, when the owner is a joint family, can it be doubted that if the trespasser restores possession, and pays the mesne profits due, to the manager of the family, he gets a valid discharge as against all the members of the family? Thus, there can be no doubt that the 1st plaintiff herein became capable of giving a discharge in respect of their joint right without the 2nd plaintiffs concurrence the moment she became the manager of the joint family, i.e. on 1-2-1951, and that time began to run against both from that date.

29. This much seems to me abundantly clear from the decision of the Supreme Court to which reference has already been made. There the liability sought to be enforced was the liability to deliver property to a Hindu joint family in pursuance of a decree for partition. In paragraph 8 of their judgment their Lordships observed:

'Under the Hindu Law the Karta of a Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly therefore, when in respect of a transaction of property possession has to be received by the several members of the family, it is the Karta's duty and power to take possession on behalf of the entire family. Including himself, the members of the family who are sui juris as well as those who are not.'

And in paragraph 12 they said:

'We are therefore of the opinion that Jawala Prasad, the managing member of the family could have given a discharge of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent and so time ran against them also under Section 7 of the Limitation Act from the date of the decree.'

30. As I have already stated, time began to run as against both plaintiffs under Section 7 of the Act on 1-2-1951 when the 1st plaintiff became the manager of the joint family and thus acquired the capacity to give a discharge without the concurrence of the 2nd plaintiff. But, as I have been at some pains to explain, since this acquisition is not the cessation of a disability within the meaning of Section 8, (although it so happens that such cessation was an essential, but by no means the only, requirement for the acquisition since no person under disability can give a discharge even for himself much less for others) in so far as time is set running by the acquisition, the entire period of 12 years provided by Article 142 is available from the date time began to run, unaffected by the three-yearlimit of Section 8. Of course, the three-year limit of Section 8 would apply from 1958 when the 2nd plaintiff became a major (both plaintiffs thereupon ceasing to be under disability) since his minority was a disability that did arrest time under Section 7 and the cessation of which would have set time running but for the fact that it had already been set running by the 1st plaintiff acquiring the capacity to give a discharge.

31. This suit was brought well within 12 years of the 1st plaintiff acquiring the capacity to give a discharge and before the 2nd plaintiff's disability ceased. There is, in my view, no question of applying the three-year ceiling of Section 8 of the Act and the suit is in time.

32. Since the only ground on which the dismissal of the suit by the Courts below is sought to be supported before us is the ground stated by them, namely, that it is barred by limitation, it follows that this appeal has to be allowed and the plaintiffs given the decree for possession which they sought.

33. I must mention that it is urged that, in the event of a decree being given to the plaintiffs, it must be made conditional on the payment of compensation to defendants 1, 5 and 6 for improvements effected on the property and also on the plaintiffs conveying to these defendants Items 1 to 3 of Schedule B to the plaint which it is said, were acquired with the consideration paid for Ext. P-1. It is rather difficult to understand on what principle the first claim can be sustained -- the second is conceded by the plaint Itself. However, since this appeal is to be dismissed, I do not think it necessary to consider these claims at any length.

BY COURT.

In view of the opinion of the majority the appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //