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Varada Bhaktavatsaludu and anr. Vs. Damojipurapu Venkatanarasimha Rao (Dead) and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1940Mad530; (1940)1MLJ195
AppellantVarada Bhaktavatsaludu and anr.
RespondentDamojipurapu Venkatanarasimha Rao (Dead) and ors.
Cases ReferredGanga Dayal v. Mani Ram I.L.R.
Excerpt:
- - the fact that the mother's name is associated as the guardian may be due to the fact that there was a joint notice individually and on behalf of the members and the vakil thought it better to put the mother as the guardian......favour of the defendants. mr. subba rao on behalf of the plaintiffs-appellants contends that the learned judge was wrong in finding that the fourth defendant attained majority in 1927. he says that the burden of proving that the fourth defendant attained majority in 1927 was on the defendants and they have not satisfactorily discharged the burden of proof which lay on them. he points out that the only material documents in the case are exhibits iii and iii-a wherein the fourth defendant's age was described as 16 in 1925 and therefore he could not have attained majority in 1927. what he says is that in india it must be presumed that the people generally give the running year as their age and not the completed year. for this position he relies upon the ruling in kunhi kannan v. devaki :.....
Judgment:

Venkataramana Rao, J.

1. This is an appeal from the judgment and decree of the learned Subordinate Judge of Ellore dismissing the plaintiff's suit on the ground that it was barred by limitation. The relevant facts may be shortly stated. The plaintiffs and the fourth defendant are the sons of one Varada Venkataramanayya. During his lifetime Varada Venkataramanayya as manager of his family entered into a partnership with defendants 1 to 3 for the carrying on of a mill business known as Gopalakrishna Rice Mill. He died on the 12th November, 1927, without adjusting his accounts with the partnership. This suit has been laid by the plaintiffs who were admittedly minors on the 29th October, 1931, for a declaration that the partnership which their father carried on with defendants 1 to 3 must be deemed to have been dissolved on the 12th November, 1927, and for taking an account of the partnership and for payment of such sums as maybe found due and payable appertaining to their father's share. The main defence was one of limitation. The suit admittedly was instituted more than three years from the date of the death of Venkataramanayya. In the absence of an agreement to the contrary, the partnership must be deemed to have been dissolved on the date of the death of Venkataramanayya and under Article 109 the suit must be laid within three years from that date. But what the plaintiffs contend is that the plaintiffs were minors on the date of the death of their father and even on the date of suit were admittedly minors and therefore under Section 6 of the Limitation Act their suit must be deemed to be within time. But the defendants contend in answer that the fourth defendant was the eldest brother of the family and he attained his majority in July, 1927, that is, before the death of their father and he was therefore in a position to discharge all the claims made in the suit and the suit must be held to be barred under Section 7 of the Limitation Act. Therefore two main questions have to be decided, namely, (1) whether the fourth defendant attained majority in 1927 or in 1929 as contended by the plaintiffs-appellants in this case and (2) even assuming that the fourth defendant attained majority in 1927, was he in a position to give a discharge of the plaintiffs' claim. On both the points the learned Subordinate Judge's decision was in favour of the defendants. Mr. Subba Rao on behalf of the plaintiffs-appellants contends that the learned Judge was wrong in finding that the fourth defendant attained majority in 1927. He says that the burden of proving that the fourth defendant attained majority in 1927 was on the defendants and they have not satisfactorily discharged the burden of proof which lay on them. He points out that the only material documents in the case are Exhibits III and III-A wherein the fourth defendant's age was described as 16 in 1925 and therefore he could not have attained majority in 1927. What he says is that in India it must be presumed that the people generally give the running year as their age and not the completed year. For this position he relies upon the ruling in Kunhi Kannan v. Devaki : AIR1939Mad907 . It may be so, but the evidence does not rest on Exhibits III and III-A. P.W. 3, the uncle of the plaintiffs, and the fourth defendant was examined on behalf of the plaintiffs and he states that his first son was born in the month of Jeshta in the year Sadharana which is between 8th June, 1910 and 6th July, 1910, and that the fourth defendant was one year or a year and a half older than his first son. This evidence was accepted by the learned Judge in the Court below and on this evidence coupled with the statements contained in Exhibits III and III-A and the deposition of the fourth defendant himself he has come to the conclusion that the fourth defendant must have attained majority at the beginning of 1927. P.W. 3 is certainly a near relation of the plaintiffs. Mr. Subba Rao contends that the age given by him was mere guess work but we cannot brush aside his evidence on that ground. We are therefore not in a position to disturb the finding of the learned Judge.

2. The next question is whether the fourth defendant was in a position to give discharge within the meaning of Section 7 of the Limitation Act. Mr. Subba Rao says that if the fourth defendant really acted as manager of the family he was not prepared to dispute the capacity of the fourth defendant to give a valid discharge of the plaintiffs' claim but what he contends is that it is not enough to show that the fourth defendant has attained majority in 1927 but it must also be shown that as a fact he was acting as manager and the evidence in this case does not establish that fact. It seems to us that when there is an eldest member of a family, the presumption is that under the Hindu Law he is the manager of the family. If he is the manager, under Section 7 of the Limitation Act discharge can be given without the concurrence of the other members of the family so far as the Madras Presidency is concerned, and at any rate that is the ratio decidendi of Doraisami Serumadan v. Nondisami Saluvan (1912) 25 M.L.J. 405 : I.L.R. 38 Mad. 118 . What Mr. Subba Rao says is that in that case the learned Judges assumed that the plaintiff had the capacity but they did not purport to decide whether the plaintiff acted as the manager and that under the Privy Council ruling in Jawahir Singh v. Udai Parkash (1925) 50 M.L.J. 344 : L.R. 53 IndAp 36 : I.L.R. 48 All. 152 which confirms Gang a Dayal v. Mani Ram I.L.R.(1908) 31 All. 156, it must be shown as a fact that the fourth defendant acted as manager. So far as Ganga Dayal v. Mani Ram I.L.R.(1908) 31 All. 156, is concerned our view is that in that case even though the elder brother was the manager, he would not be in a position to give a valid discharge of the claim because under the law prevailing in Allahabad no member of an undivided family even if he is a manager can alienate his undivided share without the concurrence of the other members. No doubt the case was not rested on that ground. But it seems to us that that case can be distinguished and the Privy Council in Jawahir Singh v. Udai Parkash (1925) 50 M.L.J. 344 : L.R. 53 IndAp 36 : I.L.R. 48 All. 152 merely accepted the decision of the learned Judges of the High Court who purported to follow Ganga Dayal v. Mani Ram I.L.R.(1908)31 All. 156 and dissented from Doraisami Serumadan v. Nondisami Saluvan (1912) 25 M.L.J. 405 : I.L.R. 38 Mad. 118 . We cannot take the said Privy Council decision as authority for the position laid down in Ganga Dayal v. Mani Ram I.L.R.(1908) 31 All. 156 that it must be shown in every case that he has acted as the manager. If anybody wants to displace the ordinary presumption that the eldest member acted as the manager and he was not in a position to give a valid discharge it is incumbent on that person to prove the facts rebutting the said presumption. Mr. Subba Rao says that the evidence in this case showed that the fourth defendant was not acting as manager. He relies on three facts (1) notice, Ex. D in 1928 by the fourth defendant and his mother acting on behalf of the minors. According to him this shows that the fourth defendant did not purport to give notice on behalf of the minors. Therefore it must be taken that he could not be manager at the time when the notice was given. Secondly, he says there was no property in respect whereof the fourth defendant could act as manager as the mill was admittedly in the possession of the partners. Thirdly, in the written statement it was alleged by the defendants that the plaintiffs and the fourth defendant were collecting rents from their houses and there were receipts available which were passed by the plaintiffs' mother herself. Taking Ex. D, it does not follow that the fourth defendant was not acting as the manager. Ex. D shows that both the fourth defendant and the other members of the family were acting together. This goes to negative the case made by the fourth defendant that he was not living with the mother and the other members of the family but was living separately from the other members. The fact that the mother's name is associated as the guardian may be due to the fact that there was a joint notice individually and on behalf of the members and the Vakil thought it better to put the mother as the guardian. As regards the question as to the property, the learned Judge holds that Exs. III and III-A show that besides the house in which rice mill is situated there are some lands. No doubt the rice mill was in the possession of defendants 1 to 3 but there were other properties such as lands and house from which rents were being collected and it is not shown that the fourth defendant was not realising rents from those lands. In regard to the allegations in the written statement there is absolutely no date given as to when the plaintiffs' mother collected the rents. No receipts of rents given by the plaintiff's mother were produced and it is not possible to predicate that the plaintiffs mother was collecting rents of the property, from the date of the death of the father of the plaintiffs and the fourth defendant.

3. The learned Judge refers to Exhibit II which proved that in 1935 when the family house was sold the fourth defendant received an advance of Rs. 100 for showing that even so late as 1935 he was acting on behalf of the family. From this the learned Judge infers that the fourth defendant must have throughout acted as manager. We cannot say that this inference is wrong. On the whole we are not prepared to disturb the finding of the learned Judge that the fourth defendant was in law the manager and also in fact the manager. In view of this finding the appeal fails and must be dismissed with costs. The appellant should pay the court-fee due to Government.


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