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Doraisami Serumadan and anr. Vs. Nondisami Saluvan and Four ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1915)ILR38Mad118
AppellantDoraisami Serumadan and anr.
RespondentNondisami Saluvan and Four ors.
Cases ReferredAhinsa Bibi v. Abdul Khader Sahib I.L.R.
Excerpt:
limitation act (xv of 1877), sections 7 and 8 and article 44 - alienation by a guardian of property of two wards, members of an undivided hindu family--suit by both more than three years after elder's majority but within three years of the younger attaining majority--limitation. - .....of limitation is three years and the time from which it begins to run is stated to be 'when the ward attains majority.' it is contended by mr. venkatarama sastri that in this case, as the word 'ward' includes the plural and applies to a suit by both the plaintiffs, both the wards can be said to have attained majority only when the second plaintiff became of age in 1907 and time began to run only from that date. the first plaintiff became a major long before that, i.e., in 1904, the time, so far as he is concerned, began to run against him from that date. i do not see therefore how it is possible to hold that the two plaintiffs can be said to have attained majority only in 1907. i have no hesitation in disallowing this contention.5. the next question is whether the suit so far as the.....
Judgment:

White, C.J.

1. I have read the judgment of Sankaran Nair, J., White, C.J. and I agree.

2. The Letters Patent Appeal is dismissed with costs.

Sankaran Nair, J.

3. The properties in suit belonged to the plaintiffs' father who died in 1895. The plaintiffs are his only heirs and during their minority their mother as their guardian sold the properties to the defendants. The plaintiffs now seek to recover possession of them. The instrument of sale was executed in November 1895. At the date of the institution of the suit the first plaintiff was 23 years old and the second plaintiff 20. The plaintiffs' case is that the suit is not barred by limitation as it was brought within three years of the second plaintiff's attaining majority and as the first plaintiff could not give a valid discharge without the concurrence of the second plaintiff. Both the lower Courts dismissed the suit on the ground that it was barred by limitation following the decision in Vigneswara v. Bapayya (1893) 16 Mad. 436. The learned Judges of this Court who heard the case differed in their opinion, Abdur Rahim, J., holding that the suit was barred and Sundara Ayyar, J., holding that the suit was barred so far as the first plaintiff was concerned and that it was not barred with reference to the claim of the second plaintiff. This is an appeal from the decision of Abdur Rahim, J., confirming the decrees of the Courts below.

4. The question for decision is whether the plaintiffs' suit is barred. The suit is governed by Article 44 of the Limitation Act. Under that article, in the case of a suit by a ward who has attained majority to set aside a transfer of property by his guardian the period of limitation is three years and the time from which it begins to run is stated to be 'when the ward attains majority.' It is contended by Mr. Venkatarama Sastri that in this case, as the word 'ward' includes the plural and applies to a suit by both the plaintiffs, both the wards can be said to have attained majority only when the second plaintiff became of age in 1907 and time began to run only from that date. The first plaintiff became a major long before that, i.e., in 1904, The time, so far as he is concerned, began to run against him from that date. I do not see therefore how it is possible to hold that the two plaintiffs can be said to have attained majority only in 1907. I have no hesitation in disallowing this contention.

5. The next question is whether the suit so far as the second plaintiff alone is concerned is barred. The contention on behalf of the defendants is that his claim is barred under Section 8 of the Limitation Act. It is argued on behalf of the plaintiffs that Section 8 has no application to suits which are governed by Article 44 of the Limitation Act, because it is said that section only applies to cases where the starting point of limitation is postponed by reason of a disability whereas in this case under Article 44 the starting point itself is the date the ward attained majority. I think the answer is contained in the section itself. Section 8 runs thus: 'When 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. 'These words are quite clear. Where the plaintiffs are under a disability, time begins to run against one of them when the other becomes capable of discharging the liability without the concurrence of the person who is under the disability. When the words of the section are quite clear and the conclusion itself is one which is not opposed to any principle of law we have to give effect to it. In this case it is admitted that the section governs all classes of cases where one of several claimants who were under a disability attains majority and can give a discharge without the concurrence of the other, excepting the cases coming under Article 44, In these circumstances I see no reason why the plain words of the section should not be given effect to. I am therefore of opinion that if the case falls within the scope of Section 8 of the Limitation Act, then we must give effect to it.

6. The question then remains for consideration whether Section 8 is applicable to the case. If the first plaintiff on attaining majority was competent to give a discharge of the claim of the second plaintiff, then time began to run against the second plaintiff also in 1904. It cannot be denied that on his attaining majority the first plaintiff became the managing member of the family to which the second plaintiff belonged, and that as such he represented the family. It was competent for him to deal with the interest of the second plaintiff also in circumstances which would justify an alienation under the Hindu Law. On this ground I am of opinion that the claim is barred.

Sadasiva Ayyar, J.

7. I must confess that, at first, I was inclined to the view that the second plaintiff's right of action was not barred, the view taken by Sundara Ayyar, J., in this case when it was before the Division Bench. Article 44 of the Limitation Act seems to give each ward who attains majority a separate right to sue to set aside the transfer of his property made by his guardian and as the 'time from which the period begins to run' is stated in the third column to be 'when the ward attains majority,' it looks at first blush, as if the cause of action itself arises on the attainment of majority and not before. This view is capable of being further supported by the fact that a minor as soon as he attains majority and on the date of his attaining majority has got the right to repudiate or to ratify a transaction effected by his guardian during his minority. In a recent case decided by Sundara Ayyar, J., and myself, the question of the minors' rights was considered, and we held that when the guardian of a minor made an alienation and afterwards died while the ward yet remained a minor, the succeeding guardian has no right to repudiate the said alienation on behalf of the minor and that it is the ward alone who has got the power to repudiate or ratify it On his attaining majority. Muthukumara Chetty v. Anthony Udayan Second Appeals Nos. 892 to 912 of 1911 decided on the 27th September 1912.

8. But there are cases binding on us (and it is so admitted in that same judgment), which show that even before the ward attains majority, a suit could be brought on behalf of the minor by a next friend to set aside the alienation made by the guardian, though, in such a case, the Court has got large powers of interference with the course of the litigation. If such a suit is bond fide brought on behalf of the ward during his minority and decided against him, it is clear that the ward's power of repudiating the transaction on attaining his majority is extinguished, and he cannot be allowed, within three years of his attaining majority to bring a second suit to set aside the same alienation. This seems to indicate that the cause of action to set aside the alienation arises at once, though the ward has three years to sue after he attains his majority, provided that a previous suit had not been bona fide instituted during his minority on that same cause of action on his' behalf and bona fide conducted to its natural termination.

9. After mature consideration, 1 think that just as the minor would be barred from bringing a suit to set aside his guardian's alienation after he attains majority by reason of the decision in a previous suit brought and conducted bond fide by a next friend during his minority, for the same relief, so he would be barred if the manager under the Hindu Law, of the family property in which the minor had an interest and which interest was conveyed away by the minor's guardian during his minority, confirms the said alienation on behalf of the family on proper grounds before the minor attains majority and releases for the family benefit the minor's right to question the alienation. It seems difficult to hold that there are two separate causes of action given to the ward to set aside an alienation of the ward's property by the guardian:

(a) One cause of action which arises at once to be enforced by a suit brought by anybody acting as his next friend during the whole course of his minority, and

(b) another distinct cause of action which arises as soon as he attains majority (and only on the date of his so attaining majority and not before) to be enforced by a suit brought by himself as a major.

10. If there is only one cause of action which arises on the date of alienation, it seems to follow (as Abdur Rahim, J., has remarked) that Article 44 ia only an illustration of the principle embodied in Section 7; and though a succeeding guardian (in the strict sense of the word) cannot ratify or repudiate the alienation of a prior guardian during the minority of the ward so as to bind the minor (according to the ruling already quoted in Muthukumara Chetty v. Anthony Udayan Second Appeals Nos. 892 to 912 of 1911 decided by Sundara Ayyar, J., and myself), the adult managing member of the minor's undivided family can deal with the family property for proper purposes and he (the managing member) has a right as soon as he attains majority and becomes such managing member to bring a suit as such manager for recovery of, not only his share of the alienated property but of the whole of the alienated family property, including his minor brother's share treating the whole as family property improperly alienated during the minority of himself and his younger brother. If such a suit became barred through his (the managing member's) not bringing it within three years of his attaining majority and of thus attaining the position of managing member, his younger brother cannot [see Ahinsa Bibi v. Abdul Khader Sahib I.L.R. (1902) Mad. 26, be allowed to contend that be had a separate cause of action to recover his share alone, apart from the cause of action of the adult managing member to recover the whole. For the above reasons and after some hesitation I agree that this Letters Patent Appeal ought to be dismissed with costs.


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