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Sri Gajapati Narasimha Deo Garu and ors. Vs. Sri Gajapati Krishnachendra Deo Garu and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtChennai
Decided On
Reported in(1919)37MLJ256
AppellantSri Gajapati Narasimha Deo Garu and ors.
RespondentSri Gajapati Krishnachendra Deo Garu and anr.
Cases ReferredFaki Ahmed Mulnaji v. Faki Nurudin
Excerpt:
- - the plaintiffs further alleged that vasudeva deo left a will under which the plaintiffs were entitled to one-fourth share, their claim therefore is in the alternative to one-fourth share of the estate in case they fail to prove that they are the legitimate sons of vasudeva deo. the mother of the plaintiff who claimed to be the married wife of the deceased proprietor lived till april 1911. immediately after his death she tried her best to establish the status as a widow and that of her sons as the legitimate sons of vasudeva deo. in fact the further correspondence shows that she fully knew that her claim had been distinctly rejected by the court of wards. there again in the last paragraph she asserted that she and her minor sons were entitled to a share in the estate and therefore.....abdur rahim, j.1. the suit of the appellants has been dismissed on the ground of limitation, none of the other issues raised in the case having been tried at all. i may say at the outset that though in the result, i agree in the conclusion of the learned district judge, i do not think that it was a prudent course on his part to, have confined himself to the issue of limitation.2. the suit was to enforce partition of a partible zamindari in the district of ganjam. the two plaintiffs claim to be the legitimate sons of the last proprietor vasudeva deo, and their case is that they are entitled to one-third share each in the estate while the 1st defendant, the son of vasudeva deo by another wife, is entitled to the remaining one-third. the plaintiffs further alleged that vasudeva deo left a.....
Judgment:

Abdur Rahim, J.

1. The suit of the appellants has been dismissed on the ground of limitation, none of the other issues raised in the case having been tried at all. I may say at the outset that though in the result, I agree in the conclusion of the learned District Judge, I do not think that it was a prudent course on his part to, have confined himself to the issue of limitation.

2. The suit was to enforce partition of a partible Zamindari in the district of Ganjam. The two plaintiffs claim to be the legitimate sons of the last proprietor Vasudeva Deo, and their case is that they are entitled to one-third share each in the estate while the 1st defendant, the son of Vasudeva Deo by another wife, is entitled to the remaining one-third. The plaintiffs further alleged that Vasudeva Deo left a will under which the plaintiffs were entitled to one-fourth share, their claim therefore is in the alternative to one-fourth share of the estate in case they fail to prove that they are the legitimate sons of Vasudeva Deo. Vasudeva Deo died in January 1898 and the Court of Wards took charge of the estate and managed it till the 1st defendant attained majority sometime in 1916 and then made over the estate to him. The mother of the plaintiff who claimed to be the married wife of the deceased proprietor lived till April 1911. Immediately after his death she tried her best to establish the status as a widow and that of her sons as the legitimate sons of Vasudeva Deo. Both the plaintiffs and the 1st defendant were infants at the time of the proprietor's death, the 1st. defendant being the youngest of them. The 1st plaintiff attained the majority, that is to say the age of eighteen in November 1909. The 2nd plaintiff attained the age of eighteen in August 1913. The suit was filed on the 27th September 1916, that is nearly seven years after the 1st plaintiff became eighteen years old and three years and a little more than a month after the 2nd plaintiff became eighteen years of age.

3. The main point on which the learned District Judge has found that the suit if barred is that, as far back as 1898 when the mother of the plaintiffs was acting as their guardian, their title to any share in the estate as heirs or under the alleged will of Vasudeva Deo was denied and the Court of Wards obtained possession of the estate on behalf of the 1st defendant and excluded the plaintiffs from possession. Admittedly, if these facts are correctly found, the suit would be barred under Article 127 of the Limitation Act unless the proposition of law contended for on behalf of the appellant can be established that Article 127 of the Limitation Act has on application to the case of minors because no knowledge of exclusion can be imputed to them.

4. There is really no dispute about what happened. It is quite sufficient to go through the different letters and petitions written to the Court of Wards by the mother of the plaintiffs and the replies and the orders thereon to form a conclusion as to whether there was or was not exclusion of the plaintiffs within the meaning of Article 127 of the Limitation Act. I may say at once that it can hardly be disputed upon the facts that the Court of Wards took possession of the estate purporting to act solely on behalf of the 1st defendant and not on behalf of any persons who may be found entitled to the estate. It is unnecessary to decide whether under the statute the Court of Wards can take charge of an estate in that way that is, on behalf of any one who may be found entitled to it. In this case, there can be no doubt whatever that it treated the 1st defendant alone as its ward and managed the estate on his behalf. I may mention however that the Court of Wards Act in its various sections contemplates that when it takes charge of an estate, it is to act on behalf of a particular ward or wards who may be suffering from disability, such as, minority or otherwise specified in the Act. I need only mention some of the sections which make this clear :-Ss. 9, 10, 17, 19, 20, 21, 22, 23, 24, 34 and 56. The mother of the plaintiffs presented an arzi, Exhibit VII, dated 20th April 1898, to the Collector. There she calls herself as the junior wife or widow of the late Vasudeva Deo, Zamindar, and asserts that her status is the same as that of the senior widow, the mother of the 1st defendant, and that her sons also have the same status as the 1st defendant. She also propounds the alleged will under which her sons are to get one-fourth share of the estate and then prays that she and her sons along with the senior Mahadevi's sons be kept under the protection of, and supported by, the Court of Wards and separate accounts maintained in respect of their shares. That was quite a distinct claim put forward on behalf of the plaintiffs both as sons of Vasudeva Deo and under the alleged will. A report was in due course called for and submitted by the Collector and upon that report, the Court of Wards passed a resolution on the 6th July 1898 to this effect:- that the alienation made by the late proprietor is invalid and that the 'Poovvula Mahadevi (that is how the mother of the plaintiffs was styled is entitled only to maintenance'. By this, it is quite clear, was meant to include not merely the mother of the plaintiffs personally but also as guardian of her two sons. There upon the Collector sent a reply to that effect (Exhibit XLVIII on 16th July 1898 to the petitioner (mother of the plaintiffs) and we have the endorsement that the reply was in fact forwarded to the petitioner by the Deputy Tahsildar on the 7th August 1898. I mention this because the counsel for the appellants raised a question as to whether the order of the Court of Wards was at all communicated to his client. There is no doubt that it must have been communicated in due course as it purports to have been. Otherwise the mother of the plaintiffs would not have sat quiet but insisted upon an answer. In fact the further correspondence shows that she fully knew that her claim had been distinctly rejected by the Court of Wards. Then we come to Exhibit XL dated 23rd August, 1900. That was a petition submitted by the mother of plaintiffs protesting against the registration of a certain village belonging to the Zamindari in the name of the 1st defendant's mother's father who apparently claimed it under a grant. There again in the last paragraph she asserted that she and her minor sons were entitled to a share in the estate and therefore had an interest in the village in question as well. The order passed thereon was that the petitioner was not recognised as the widow of the late proprietor and the petition was therefore rejected. She was not satisfied with that and went on pressing her claim as the junior widow of the Zamindar. In 1903 we find that she submitted a petition Exhibit XLI claiming that she was the junior widow or Sanna Mahadevi and that she must be treated as such. There she also cited some correspondence in which she was so styled. But on enquiry it was ascertained that she was so designated in some of the letters through a mistake of the clerk and that she was only Poovvula Mahadevi, that is to say, woman occupying the status of a concubine and not a wife at all, and the Collector also pointed out that the amount of the allowance given to her and to her sons was on the basis not of a widow at all. Then she presented a petition to the Court of Wards against the order of the Collector. That was in May 1904, Exhibit XXIX. The Court of Wards upheld the decision of the Collector and the order was communicated to her in due course. We also find that the receipts for maintenance etc. which she had given and in which she had styled herself as Sanna Mahadevi or junior widow were returned to her for correction and she was asked to sign them as Poovvula Mahadevi. This was in August 1904. On her death, the plaintiffs' maintenance allowance was reduced from 55 to Rs. 35. Thereupon the 1st plaintiff who attained majority in 1909 filed a petition before the Court of Wards in January 1910-Exhibit IX-in which he prayed for maintenance to be paid at the original rate without any reduction and there he describes both himself and his brother as 'dependants on the estate,' again as 'maintained by the estate,' in another place, as being 'protected by the estate/ and then as 'attached to the family of the deceased proprietor.' That shows how the plaintiffs themselves understood the attitude of the Court of Wards towards them. I may also mention another petition Exhibit VI, dated 26th January 1911, in which leave was asked for by the 1st plaintiff to go to Berhampore in order to obtain a certificate from the Surgeon to the effect that the 1st plaintiff had attained majority so that he might have his rights to the estate established.

5. Upon these facts the conclusion seems to be irresistible that the Court of Wards purported to act and did act solely and entirely on behalf of the 1st defendant and treated the 1st defendant as the sole heir to the estate of the deceased proprietor and that since 1898 it refused distinctly and repeatedly to recognise the plaintiff's mother as a lawfully wedded wife of the proprietor and her sons as his legitimate children and it also held that the claim of the plaintiffs to a share in the estate under the will was invalid. The decision of the Court of Wards was communicated in due course to the plaintiffs' mother who, as their natural guardian, was pressing their claims to be recognized as heirs or as legatees by the Court of Wards. The plaintiffs' mother was allowed maintenance for herself and her two children and they were allowed to live within the precincts of the fort, not with the 1st defendant and his mother but in some other part of the palace. It appears that the Zamindar had a number of concubines and they were all allowed maintenance though smaller in amount. The plaintiffs' mother was allowed somewhat more by way of maintenance for herself and her children. The reason why she was allowed more is not quite clearly stated in the correspondence, but as far as it can be gathered, it was because she belonged to a somewhat higher caste than the other concubines or may be because she had children by the late Zamindar. But the Court of Wards distinctly refused to recognize either that the plaintiffs' mother was the wife of the late Zamindar and her sons were his legitimate sons or that the plaintiffs were entitled to any share whatever in the estate. Under these circumstances, the possession of the Court of Wards must be treated as possession on behalf of the 1st defendant alone and it seems to me that there is no way of escaping the conclusion that the Court of Wards acting on behalf of the 1st defendant excluded the minors from any share in or possession of the estate or any properties belonging to the estate.

6. We have been referred to a number of rulings on behalf of the appellants, but it does not seem to me, though I shall notice them very briefly, that any of them can help us very much in arriving at a proper conclusion in this case, for the question really depends entirely upon the appreciation of the evidence. So far as the law bearing on the subject of limitation of suits instituted by a person claiming to be a member of a Hindu family is concerned, there can be no doubt whatever, for it is well settled. The mere fact that a co-parcener has not enjoyed any portion of the family property for twelve years or more, cannot deprive him of his rights. Possession of one co-parcener is deemed in law to be possession on behalf of all coparceners although other co-parceners may take no part in the management and may not even enjoy any of the income of the property. In order that lapse of time may deprive a coparcener of his rights in the joint family property, it has to be established that he has been excluded from enjoyment of the property to his own knowledge. If exclusion for twelve years to the knowledge of the excluded co-parcener is established, his rights will be barred but not otherwise. What will amount to exclusion in a given case will have to be determined in the light of its peculiar facts. In some cases, receipt of maintenance by a junior member of a Zamindar's family may be good evidence to negative the allegation of enjoyment of the Zamindari or its properties as in Raghunath Bali v. Maharaj Bali I.L.R. (185) Cal. 777. In some cases on the other hand receipt of maintenance may be evidence of recognition of a person's claim as a co-parcener in a joint Hindu family. On behalf of the appellants, much reliance was placed on the ruling in G.N.D. Maharajulungaru v. V. Rojah Row Pantulu (1869) 5 M.H.C.R. 31. But there the learned Judges found having regard to the attitude taken up by the Court of Wards in that case that it did not profess to decide as to which of the claimants was entitled to the Zamindari and therefore it could not be said that it purported to exclude the plaintiff in that suit, if he was the rightful heir. This is what they say at page 43 :-'the most that, it seems to us, the evidence can fairly be considered as proving is that the funds have been held by the Court of Wards since the late Zamindar's death in trust for the person or persons entitled to them'. In this case, nothing can be clearer than that the Court of Wards definitely recognized from the very beginning the 1st defendant as the heir and rejected the claim of the plaintiffs to any share in the estate either as heirs of the Zamindar or as his legatees. It was also contended on behalf of the appellants that the decision of the Bombay High Court in Krishnabai v. Khangowda I.L.R. (1893) 18 Bom. 197, shows that such action of the Court of Wards as has been proved in this case would not amount to an ouster. In the first place, there is really not much similarity between the facts of the two cases and the Bombay case was decided under Limitation Act-Act IX of 1871 where the starting point of limitation was from demand and refusal, and it was found that no demand or refusal had been proved. It was pointed out in that case that the brother who did not receive a share in the partition effected by the other two brothers had lived as a member of the family of one of the brothers till he died leaving the plaintiff in that suit, his minor son, as his heir and that fact was relied on by the learned Judges as showing that he was not excluded from the enjoyment of the joint family property. Whether that conclusion was justified by the facts of that case or not, it is not for us to pronounce any opinion upon. Suffice it to say that in this case the exclusion of the plaintiffs, is, to my mind, absolutely clear on the evidence. They were allowed to live within the precincts of the palace as dependants, as sons of a concubine of the Zamindar. I do not know of any proposition of law to the effect that, if a person is allowed maintenance and permitted to live in the family house not as a co-parcener but as a mere dependant while his claim as co-parcener is distinctly denied, the enjoyment of such maintenance or residence in the family house would suffice to prevent time running against his claim.

7. I come to the next contention that the plaintiff being minors till 1909, there could be no exclusion to their knowledge at least until that date, that is to say, Article 127 of the Limitation Act, we are asked to hold, has no application to the case of minors. This seems to me a very sweeping proposition and not warranted by the provisions of the Limitation Act. The scheme of the Limitation Act is that the several Articles apply to all suits and applications mentioned therein and that in the case of persons under disability, a certain extension of time is allowed to them to enable them to file suits after the disability has ceased. Section 6 says that 'where a person is entitled to institute a suit or make an application for the execution of a decree at the time from which the period of limitation is to be reckoned, a minor...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.' Section 7 deals with the case of disability of one of several plaintiffs. Section 8 says 'nothing in Section 6 or in Section 7 applies to suits to enforce rights of prescription (with which we are not concerned) 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.' 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 the 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. The argument on behalf of the appellants is that a minor cannot be imputed with any knowledge. It is unnecessary for me in this case to express any opinion on the question ' whether the knowledge can be imputed to a minor direct where there is no guardian to act for him, and if so, under what circumstances.' But I have no doubt that where there is a guardian such as here, knowledge of the guardian must be imputed to the minor. Article 127 to my mind contemplates that in the case of minors, the knowledge of the guardian is quite sufficient. A minor is allowed by the law to act through his guardian and as expressed by a learned jurist the guardian and the ward are identified and form one complete person. For purposes of litigation the act of a guardian is binding on the minor. For instance, a decision against a minor represented by a guardian, unless it is impeachable on the ground of fraud or on other similar grounds operates as res-judicata. Then there are a number of other Articles of the Limitation Act under which time runs from the date of the knowledge of the plaintiff. 1 should like to have some authority for saying that all these Articles have no application to the case of a minor. I may especially mention one Article-Article 164 which requires that an application by a defendant to set aside an ex parte decree must be made within thirty days of the date of the decree. If the general contention of the appellants were well-founded, an ex parte decree against a minor can be set aside years after it had been passed although the legislature in laying down thirty days as the limit of time for such an application intended that a matter of that sort should be decided as soon after the decree had been passed as possible. In my opinion Article 127 applies.

8. 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 Doraisami Serumadan v. Nondisami Saluvan I.L.R. (1913) Mad. 118 : 25 M.L.J. 405, and Soundrarajan v. Saravana Pillai : (1916)30MLJ592 .

9. The 2nd plaintiff attained eighteen years of age in August 1913 and even apart from Section 7 he would be barred unless under Section 15, Sub-section 2, of the Limitation Act read with Sections 6 and 8, he would have three years and two months for filing the suit after attaining majority, in which case his suit would be in time. The Court of Wards Act, Section 49, requires that two months notice should be given before the institution of the suit and what Section 15, Sub-section 2, says is:-'In computing the period of limitation prescribed for any suit of which notice has been given in accordance with any enactment for the time being in force, the period of such notice shall be excluded'. Now the period of limitation is calculated according to the Article applicable to a particular case and therefore the period of notice required is to be added to the time allowed by the Article applicable to such a case. Section 15, Sub-section 2 has nothing to do with the extension of time allowed to persons under disability under Sections 6 and 8. What those sections allow to the minor or person under disability is three years acid no more from the cessation of the disability and I do not see how three years is to be made into three years and two months by reason of Section 15, Sub-section 2.

10. This really disposes of the appeal. The learned counsel for the appellants raised a question as to the proper amount of court-fees payable. The plaintiffs have been made to pay both in the lower court as well as in this court court-fees calculated on the market value of the properties claimed. He says that the plaintiffs are entitled to value the subject matter of the dispute as they like, the contention being that the suit being one for partition, Section 7(4b) applies. But I do not wish to express any opinion as to what is the proper fee livable in this case, because the decision as to what fee is payable is final. Chapter II of the Court-Fees Act provides for fees in the High Court and Section 5 which is in that chapter says : ' When any difference arises between the officer whose duty it is to see that any fee is paid under this Chapter and any suitor or attorney as to the necessity of paying a fee or the amount thereof, the question shall, when the difference 'arises in any of the said High Courts, be referred to the taxing officer whose decision thereon shall be final, except when the question is, in his opinion, one of general importance, in which case he shall refer it to the final decision of the Chief Justice of such High Court or of such Judge of the High Court as the Chief Justice shall appoint either generally or specially in this behalf.' There has been no such reference in this case. Under Section 5, the order of the Registrar so far as the fee paid on the memorandum of appeal is concerned, would be final, unless as argued Section 5 only deals with cases on the original side of this Court. That chapter however is not confined to fees payable on the original side but also provides for fees payable on the appellate side-see Section 4. So far as Section 5 is not applicable and Section 7 applies, that is, so far as the fee payable on the plaint is concerned, according to Section 12, the decision of the Court will be final and we have not been referred to any authority which lays down that such an order is appeal able.

11. The result is that the appeal must be dismissed with costs.

12. The memorandum of objections is not pressed and is dismissed with costs.

Spencer, J.

13. This suit was brought to recover possession of shares which the plaintiffs claim in an estate which they allege to be their ancestral family property. Although it would have been more satisfactory for all concerned if the issues which relate to the question of plaintiff's status as legitimate sons of the late Vasudeva Deo and their title as legatees under the will had been decided on their merits, I think that this appeal must be dismissed upon the short point that the plaintiffs having a right of suit on attaining majority to obtain a declaration as to their title to their ancestral property are limited by Section 8 of the Indian Limitation Act to a period of three years from that date to institute their suit. In this case, 1st plaintiff having been born :|in November 1891 became eighteen in November 1909 and the 2nd plaintiff having been born in August 1895 became eighteen in August 1913. The plaint was filed on 27th September 1916 after three years had expired from the cessation of the disability of minority of both plaintiffs. The period of three years cannot be extended by two months under Section 15, as that section refers only to the time for computing the period of limitation under the appropriate article of the schedule. Neither can the Indian Majority Act be availed of for extending the age of minority of these plaintiffs to twenty-one because the provision under Section 3 of that Act applies only to cases where the superintendence of the minor's property has been assumed by the Court of Wards, and because, in this case the Court of Wards never assumed the superintendence of the estate of these minors, for, as it appears from the evidence, the Court of Wards and the Collector all along consistently repudiated plaintiffs' claim to anything more than such an allowance as might be granted out of commiseration and as a matter of grace to children born of an irregular connection resembling concubine rather than wed-lock. On this point, the lower Court's decision is in my opinion unassailable. In the plaint, the cause of action is said to have arisen when the Court of Wards issued a notification that all the suit properties and all records appertaining thereto would be handed over to the 1st defendant alone, that is, to the legitimate heir of Vasudeva Deo on the 29th September 1916 when he attained majority and ignoring the plaintiff's rights in the suit properties. That notification has not been exhibited in the suit and we thus are kept in the dark as to its contents. But it is clear that if the suit is based on a denial of plaintiffs' title to a share in the Nandigam estate, the first denial by the 2nd defendant was much earlier than May I9I6, which is given as the date of plaintiffs coming to know of the said notification. As my learned brother has dealt in some detail with the evidence, I will only refer to Exhibit XLVIII dated 16th July 1898 and the proceedings part of Exhibit A, dated 6th July 1898, Exhibit VIII of the same date, and Exhibit IX(a) dated 8th August 1911 in which the Collector and the Court of Wards declare that plaintiffs' mother the 'Poovvula Mahadevi' or flower consort and her children were entitled to maintenance only. After this, it is clearly impossible to treat the Court of Wards' possession as being possession on behalf of plaintiffs or as possession of which plaintiffs were unaware at the time when the Court of Wards assumed management in 1898. (Vide Exhibit I and its enclosures). For the application of Article 127 of the Limitation Act, plaintiffs have not given any other date than May 1916 when they came to know of their exclusion; but that date cannot he accepted for the reasons I have given, and it is clear that though minors they must have come to know of their exclusion through their mother long before that date. If plaintiff's mother who died on 7th April 1911, (see Exhibit O) as guardian of plaintiffs had just before her death filed a suit to enforce their right to share in the family property, the suit would undoubtedly have failed on account of her knowledge in 1898 of the exclusion of herself and her children. The concession which Section 6 of the 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 the 2nd column 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 the minority of a plaintiff to more than three years. This is the effect of Section 8 read with Section 6. Without any greater authority than a stray observation made by Sargent C.J., in the course of the arguments in Faki Abas-valad Faki Ahmed Mulnaji v. Faki Nurudin-valad Faki, Mohidin Mulnaji I.L.R. (1891) Bom 191, that minors could not be excluded to their knowledge, I am not disposed to accept Mr. Narasimham's sweeping contention that a minor is by reason of his minority incapable of taking notice or of becoming aware of such a fact as his exclusion from family property.

14. On the other question raised at the hearing, the decision of the lower Court on the question of valuation for purposes of court-fees in my opinion final under Section 12 of the Court-fees Act.

15. The memorandum of objections which relates to pleader's fee is not pressed.

16. The appeal and the memorandum of objections must be dismissed with costs.


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