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Doraisawmi and anr. Vs. Nondisawmy Saluvan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported in(1911)21MLJ1041
AppellantDoraisawmi and anr.
RespondentNondisawmy Saluvan and ors.
Cases ReferredAnanta Krishna Dass Bakshi v. Ananda Krishna Bhose I.L.R.
Excerpt:
.....of the first schedule' clearly shews that the section contemplates only cases where, but for the disability which is made the ground of protection to the person suffering therefrom, time would run against the litigant before the cessation of the disability, and that the section would be inapplicable where, apart from the disability, time would not run against the plaintiff under the third column of the schedule before the disability ceases. it is not open to me, i think, to overcome this argument by regarding article 44 as a mere illustration to section 7 or as a surplusage. a previous suit by the father to set aside the sale and get back the property had failed. ' best j......former enunciates the rule only in one form of disability, viz., minority, and for one class of suits - suits to set, aside sale by guardian. so far, article 44 is but a mere illustration of section 7. it has, however, been held that section 7 applies to suits where there is one plaintiff and he is under disability, or where there are more than one plaintiff and all of them are under disability, but not to suits by a number of plaintiffs only some of whom are under disability see seshan v. rajagopala i.l.r. (1889) m. 236, vigneswara v. bapayya i.l.r. (1892) m. 436, and ahinsabibi v. abdul kader sahib i.l.r. (1900) m. 26. suits of the latter class are dealt with by section 8 which lays down in what cases of joint claimants and creditors the running of time shall be suspended as.....
Judgment:

Abdur Rahim, J.

1. This appeal raises two questions relating to the construction of Section 8 of the Limitation Act - (1) whether the section has any application; to a, suit to which Article 44 of the same Act would be applicable, that is, a suit to recover possession of properties from a person holding them under invalid alienations made by the plaintiff's guardian during his minority, and (2) whether the section in question is applicable to a case where the property sought to be recovered belonged to more than one plaintiff as Hindu co-parceners, all of whom were minors at the date of alienation, but one or more of whom attained majority more than three years before the institution of the suit. As regards the first, the contention is that under Article 44 the time from which the period of limitation provided for by the article : begins to run is the date of attainment of majority by the minor, while Section 8 contemplates cases in which time would have run during minority but for the disability, that is to say, cases in which the running of time is suspended owing to disability, or in other words the period of disability is excluded from computation. In cases falling within the scope of Article 44 time runs only from the date of attainment of majority and there can therefore, it is argued, be no question of exclusion of the period of minority or suspension of running of time during minority. The argument appears at first sight to have some plausibility, but once we realize the proper place and scope of Article 44 in the scheme of the Act the unsoundness of the contention becomes apparent. The fallacy of the arguments consists in treating the article as if it stood by a itself and there were no other provision of the Act applicable to the case to which that article applies. A suit by a minor to set aside a sale by his guardian and a suit to recover possession of the property so sold from the vendee is regarded as standing substantially on the same footing as far as the applicability of Article 44 is concerned and as one to which in the first place not only is this Article applicable but also Article 144 and Section 28 of the Limitation Act. This has been so held by the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram I.L.R. (1900) M. 271 and the reasons for it are obvious. Suppose a case in which the plaintiff attained majority within less than nine years from the date of alienation, could it then be said that it he did not sue within three years after attaining majority his suit would be barred and he would not be allowed 12 years from the date of alienation? Clearly not. It is well established that the Limitation Act does not deprive persons under disability of any advantages which other persons have under the provisions of the Act, but on the other hand the Act makes certain concessions in their favor because of the disability (See MITRA on Limitation, 4th Edn., pp. 295, 315-7,696). Section 28 also applies, as it is only after 12 years of adverse possession against the minor by the alienee, but not leas, even if the 3 years after attainment of majority expired within 12 years from the commencement of adverse possession, that the rights of minor would be extinguished. Then if we read Article 44 along with Article 144 and Section 28 the result clearly is that Article 44 must be understood as extending - in the case of suits of a particular class by minors - the period of limitation provided for in Article 144, the general residuary Article, to three years after cessation of the disability. In other words the running of time is suspended in such cases so long as minority lasts and that after cessation of his minority the plaintiff shall have 3 years from such date or 12 years from the commencement of adverse possession, whichever period is the longest.

2. Now let us see what relation Article 44 bears to Sections 7 and 8. It is a well established rule of construction of the Limitation Act that the sections in the body of the Act govern and control the application of the articles in the two schedules except so far as the language of a particular article clearly precludes the application of any such section. If the proper meaning and scope of Article 44 be what I have stated, it is exactly what Section 7 lays down ; only the latter lays down the rule generally for all forms of disability and in all descriptions of suits, while the former enunciates the rule only in one form of disability, viz., minority, and for one class of suits - suits to set, aside sale by guardian. So far, Article 44 is but a mere illustration of Section 7. It has, however, been held that Section 7 applies to suits where there is one plaintiff and he is under disability, or where there are more than one plaintiff and all of them are under disability, but not to suits by a number of plaintiffs only some of whom are under disability see Seshan v. Rajagopala I.L.R. (1889) M. 236, Vigneswara v. Bapayya I.L.R. (1892) M. 436, and Ahinsabibi v. Abdul Kader Sahib I.L.R. (1900) M. 26. Suits of the latter class are dealt with by Section 8 which lays down in what cases of joint claimants and creditors the running of time shall be suspended as provided for by Section 7 and when there shall be no such suspension. Article 44 applies to suits by several plaintiffs, but is confined to cases of minority and where the object of the suit is to set aside sales by a guardian Section 8 therefore covers all the cases to which Article 44 would apply when the plaintiffs could be said to be joint creditors or joint claimants.

3. Then, as I have shewn, Article 44 really enacts that in the suits to which it applies the running of time would be suspended during minority, and the first part of Section 8 lays down that the running of time shall not be suspended in certain cases. If the present is one of those cases, the fact that Article 44 applies to it would not, having regard to its scope, exclude it from the operation of Section 8.

4. This brings me to the next branch of the argument in support of the appeal. This point is covered by authority. I am not prepared to hold a different view. It is laid down in Vigneswara v. Bapayya I.L.R. (1892) M. 436, in Ahinsabibi v. Abdul Kader SahibI.L.R. (1900) M. 26 and in Singa Prasad Singh v. Kwahish Ali I.L.R. (1882) A.512 that the co-parceners of a Hindu family seeking to recover the family property from an alienee are joint claimants withing the meaning of Section 8 and it certainly can make no difference in the application of Section 8 whether the alienation was made by a guardian as here or by the manager. The two plaintiffs are brothers, and it is found that the elder of the two, on attainment of majority, would presumably be the manager. He became therefore competent more than three years before the institution of the suit to give a valid charge within the meaning of Section 28 as laid down in the cases just referred to. The suit has, therefore, been rightly held to be time-barred. The appeal is dismissed with costs.

5. My learned brother holds a different view.

Sundara Aiyar, J.

6. This Letters Patent appeal is against the decision of Krishnasawmy Aiyar J. in a second appeal which that learned judge dismissed under Order XLI, Rule 11. The original suit was instituted by two brothers who are members of an undivided Hindu family to recover certain properties which were alienated by their mother and natural guardian in favor of the defendants by several sale deeds in the year 1895. The plaintiffs impeached the sale as not justified by any necessity and therefore not binding on them. Both the District Munsif, and the Subordinate Judge on appeal, dismissed the suit on the ground that it was barred by limitation. At the time of the presentation of the plaint the plaintiff was 23 years old and the 2nd plaintiff 20 years, so that the suit was instituted more than 3 years after the attainment of age by the 1st plaintiff but less than 3 years after the 2nd plaintiff became a major. The lower courts proceeded on the view that Section 8 of the Limitation Act XV of 1877, which was in force at the time, was applicable to the case, and that the plaintiffs were joint claimants, one of whom, the 1st plaintiff, was competent to give a discharge for the claim when he became major without the concurrence of the other claimant. Before Krishnasawmi Atyar J. it seems to have been admitted that according to Act XV of 1877 the suit would be barred. On appeal it was stated that this admission on a point of law was wrongly made and it was contended that the suit was really not barred by limitation with respect to either of the plaintiffs; and that even if the 1st plaintiff should be held to have, been barred, the 2nd plaintiff was entitled to a decree for possession of the whole property and not merely a half share thereof. As the alienations were made in 1895, more than 12 years had expired since then before the suit was instituted.

7. It is therefore unnecessary to consider whether Article 44 of Schedule II to the Limitation Act would be applicable to a suit by a Hindu for the recovery of immoveable property alienated by his guardian during his minority - a point, the decision of which is, in my opinion, attended with considerable difficulty on account of the conflicting decisions bearing on it. There can, however, be no doubt that the plaintiffs are entitled to rely on Article 44 when 12 years have elapsed from the date of the alienations. The question, therefore, is whether, on a correct construction of the Article, the suit is barred either wholly or partially, and whether Section 8 of the Act is applicable to cases governed by Article 44 The lower courts have, as already stated, assumed that Section 8 would, be applicable to the case.

8. Mr. Vardachariar's argument at the hearing of the appeal was that that section has no application to a case governed by Article 44 In this contention I think he is right. The article in question fixes a certain date at the time from which the period of limitation begins to run. In a suit 'by a ward who has attained majority to set aside a sale by his guardian' that date is 'when the ward attains majority.' In my opinion each ward has 3 years from the time when he attains majority to set aside a sale by his guardian. The right of guardianship with respect to each minor is distinct from, though similar to, the right with respect to the other. The guardian has distinct rights and liabilities as guardian of each of the minors. His right of guardianship cannot be said to be joint with regard to the two plaintiffs. In making the alienations in question the guardian must be taken to have exercised the power of alienation over the rights of the 1st plaintiff and of the 2nd plaintiff separately, though a single deed of transfer was employed for the alienation of the rights of both plaintiffs. The juristic act was different with regard to each of the plaintiffs though the guardian did not sell the undivided share of each of the plaintiffs separately, but sold their joint shares by single instrument. It must be remembered that the right to recover the property flows from the right to set aside the alienation and the nature of the rights of the plaintiffs must be determined, therefore, with reference to the character of the act of alienation. Each of the plaintiffs, therefore, has a distinct cause of action.

9. Is Section 8 of the Act applicable to such a case? I am of opinion that it is not. I think that Section 8, which deals with suits by joint claimants, must be held inapplicable to the case for the simple reason that the claim cannot be regarded as joint for the reasons just mentioned. The alienation of the right of each being juristically a different act, the claim to set it aside must also be regarded as distinct in law, notwithstanding that the two plaintiffs are members of a joint Hindu family. It is desirable to refer to the language of both Sections 7 and 8 of Act XV of 1877. Section 7 is in these terms (I quote only the portion necessary for the case):

Where a person entitled to institute a suit or make an application is at the time from which the period of limitation is to be reckoned 3 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 period prescribed therefor in the third column of the First Schedule.

10. Section 8 enacts as follows:

Where one of several joint creditors or claimants is under any such disability and when 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.

11. It is clear to my mind that the expression in Section 7 'the same period after the disability has ceased as would otherwise have been allowed from the time prescribed in the third column of the First Schedule' clearly shews that the section contemplates only cases where, but for the disability which is made the ground of protection to the person suffering therefrom, time would run against the litigant before the cessation of the disability, and that the section would be inapplicable where, apart from the disability, time would not run against the plaintiff under the third column of the schedule before the disability ceases. The fact that the time fixed as the starting point in Article 44 is, in reality, the same as the time of the cessation of the disability is, in my opinion, immaterial in deciding whether Section 7 would apply, inasmuch as, to make the section applicable, it is necessary that time should run from a previous date under the schedule but for, the protection afforded by the section on the ground of disability. It is not open to me, I think, to overcome this argument by regarding Article 44 as a mere illustration to Section 7 or as a surplusage. Proceeding to Section 8, I am unable to avoid the conclusion that it is applicable only to the same class of cases as Section 7, that is, to cases where, it being provided by the third column of the schedule that time should run from a certain, date, the starting point is postponed by reason of a disability. Stress was laid by Mr. Varadachari on the word 'such' in the clause 'where one of several joint creditors or claimants is under such disability.' But it seems to me that the word merely designates the disabities referred to in Section 8, viz., minority, insanity or idiocy, and that the use of that word would, by itself, be insufficient to show that the section is applicable only to cases where a period otherwise fixed in the schedule is postponed by reason of a disability. But there are, I think, other words in the section which support his argument. It says 'when a discharge can be given without the concurrence of such person time will run against them all, but where no such dischage 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.' Take the expression in the latter clause 'until one of them becomes capable of giving such discharge.' Does this not indicate that it applies to a case where time would otherwise be running previously on account of the starting point fixed in the third column of the schedule? The same is the import, in my opinion, of the expression 'when a discharge can be given without the concurrence of such person.' It assumes that time would be running with reference to the starting point fixed in the schedule, but for disability, against the person not capable of giving a discharge. Both clauses assume that time would be running with reference to the starting point in the schedule against some persons not capable of giving a discharge either when time so begins to run or at a later time. Both Sections 7 and 8 are, I venture to think, inapplicable except where the starting point fixed by the schedule is postponed by reason of disability. But as the legislature, whatever the reason might be' has fixed for the present suit, as the starting point of limitation, the time when minority ceases, it is impossible to regard it as a case where the starting point fixed by the schedule is postponed, by Section 7 or as one in which a person under disability is incapable of giving discharge himself, when limitation would be running against him with respect to the starting point in the schedule and could be sought to be bound by the discharge given by another person capable of giving it on his behalf also.

12. For this reason also I am of opinion that Section 8 is inapplicable to the case, apart from the fact that as already pointed out, the cause of action of each of the plaintiffs is distinction the case.

13. On the view taken by me I must hold that the right of action of the 1st plaintiff was barred at the date of suit and that the 2nd plaintiff's right of action was not barred.

14. What, then, as to the relief to which the 2nd plaintiff is entitled? It was contended on his behalf that though the 1st plaintiff's right of action might be barred, the defendants would not acquire the ownership in his share of the family property, as an undivided member of a Hindu family cannot be said to own, till partition, any distinct share in the property of the joint family, and that the 2nd plaintiff is therefore entitled to recover the property, and the decision in Ramanna v. Venkata I.L.R. (1883) M. 246 is relied on as supporting the argument. I am of opinion that this contention is not entitled to prevail. When the 1st plaintiff's right to sue became barred, his right and ownership, whatever they were, became extinguished according to Section 28 of the Limitation Act. The nature of the rights of undivided members of a Hindu family has recently received much elucidation in the decisions of this court. It is now settled for this Presidency that an alienee for consideration from a Hindu co-parcener obtains title to the alienor's share in the property transferred as it stood on the date of alienation. See Aiyyagiri Venkatramayya v. Aiyyagiri Ramayya I.L.R. (1901) M. 690 and the observations of Bhashyam Iyengar J. therein; Ramachandra Pillai v. Kalimuthu Chetti : (1911)21MLJ246 . It is there conclusively shewn that the proposition that a co-parcener has no right to any definite share of the property is only true in the sense that his share is liable to fluctuations of increase and decrease as between him and his co-parceners and also in the sense that until partition he cannot, claim as between himself and his co-parcerners, exclusive title to any particular item of the family estate or any definite share of the income of the estate. It is also demonstrated that the decisions of the Judicial Committee of the Privy Council made it impossible to hold any other view than that an alienee's position is quite different from what that of the alieuor would be in the absence of a transfer by him. The sale by the guardian of the 1st plaintiff's right must be taken, therefore, to have conveyed his half share to the alienees. I also abstain from discussing the question further on principle, as I regard the proposition as established beyond dispute so far as this Court is concerned. Therefore when the 1st plaintiff's right to sue the alienees became barred his right to one half of the properties became extinguished and was transferred to the alienees.

15. Ramanna v. VenkataI.L.R. (1888) M. 246 has really no application to the case. There a Hindu father made a gift of some family property and his son sued subsequently to recover it. A previous suit by the father to set aside the sale and get back the property had failed. Collins C.J. and Muthusawmi Aiyar J. held that the son was entitled to recover the whole. The sale not being for consideration the father's share did not vest in the alienee but the whole property continued to vest in the joint family notwithstanding the gift. The family was undivided at the time of the suit. The son was therefore held entitled to recover the whole property as part of the family estate. In Gopalsawmi v. Periasawmy Thevar (1895) 6 M.L.J. p. 27 the eldest only of the three sons instituted a suit to recover certain property belonging to the family, claiming it as his own. Subsequently his co-parceners, in order to prevent the dismissal -of the suit, purported to renounce their shares in the property. The plaintiff's exclusive right was negatived at the trial. The plaintiff, in the course of the suit, asked to be allowed to amend his plaint so as to enable him to recover his share of the property, but his request was refused. It was held that the co-parceners' petitions were ineffectual and that the plaintiff's application for amendment was rightly refused. Sheppard J. made an observation which is pertinent to this case. He said 'the question here is, whether the Judge was wrong in not allowing the plaintiff so to amend as to make him to recover his share of the property.' He could not recover more, for any right which his brother ever had was extinguished by limitation in March 1891, and even if it subsisted such right has not been validly transferred to the plaintiff.' He then went on to observe that 'when one of the joint creditors has omitted to join the others at the outset and the latter have been joined only after the expiration of the period allowed by the law as to limitation, it has been held that the suit must be dismissed altogether and not that the original plaintiff should be allowed to recover his share of the money due Kalidas Kaval Das v. Nathu Bhagvan I.L.R. (1883) B. 217 and Imuldin v. Liladhar I.L.R. (1882) A. 524. It seems to me that the same principle must be applied in the present case and that as when the plaintiff's application was made it was too late for his brothers to assert the right by suit the judge was right in refusing the amendment applied for.' Best J. was of opinion that the cases referred by Sheppard J. were actions on contracts and were not applicable to a suit for property against trespassers. He was of opinion that the amendment asked for should have been allowed. I agree respectfully with the proposition that the shares of those who did not sue in time would be extinguished when the period of limitation expired In Manzur Ali v. Mahmud Un-nissa I.L.R. (1902) A. 155, Stanley and Banerji JJ. held that when some of several co-obligees of a money bond were barred by limitation from recovering their shares, their rights would become extinguished by limitation and the remaining co-obligee who was a minor was saved from limitation by minority to his share of the money. The principle that should govern the case is that where the remedy alone is barred and the right of the co-sharer who is barred is not extinguished, his undivided coparceners would be entitled to recover the whole. See Govindaram v. Tati I.L.R. (1895) B. 383; Ananta Krishna Dass Bakshi v. Ananda Krishna Bhose I.L.R. (1886) C. 50.

16. As I am of opinion that the 1st plaintiff's right was extinguished when he attained the age of 21, I must hold that the 2nd plaintiff is entitled to recover only a half share of the properties alienated.

17. I would reverse the decree of both the lower courts and the judgment of Krishnasawmi Aiyar J. in so far as the 2nd plaintiff is concerned and remand the suit to the first court for the disposal of his claim on the merits. I would also direct that in the circumstances of the case each party should bear his own costs throughout up to date.


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