1. This appeal arises out of O.S. No. 102 of 1927 on the file of the Subordinate Judge's Court of Madura. The plaintiff (appellant) filed that suit claiming certain rights as the grandson of one Swami Kone, who died in May 1906. Swami Kone had a younger brother San-karalinga Kone, and a son Sundararaja Kone, who was the father of the plaintiff. Sundararaja died in December 1906. The suit property seems to have been purchased in 1891 in Swami Kone's name under Ex. E. For some years prior to 1908 the property seems to have been in the possession of the defendants or their predecessors-in-title. Towards the end of 1907 Sankaralinga, acting for himself and on behalf of the plaintiff and the plaintiff's deceased younger brother, sent a notice to the persons then in possession purporting to terminate their tenancy and asking for surrender of the property. As they did not give up possession, he filed O.S. No. 576 of 1908 on 16th October 1908. As the questions for decision in the present appeal arise out of what happened in that suit, it is necessary to refer in some detail to the proceedings therein.
2. The plaint in O.S. No. 576 of 1908 (Ex. A) shows that Sankaralinga filed that suit for himself and as next friend of his two minor grandnephews. He alleged that the suit property, though purchased in Swami Kone's name, was joint family property of himself and Swami Kone, and that himself and the two minor plaintiffs were entitled to the property and he accordingly sued for possession. During the pendency of that suit, it would appear there were differences and quarrels between Sankaralinga and the daughter-in-law of Swami Kone (i. e., the mother of the minor plaintiffs). The mother was not prepared to admit the claim made by Sankaralinga that the suit property was joint family property of Sankaralinga and Swami. She therefore came in with a petition, I. A. No. 286 of 1909, in which the prayer runs as follows:
As the interest of plaintiff 1 is adverse to that of the minor plaintiffs 2 and 3, plaintiff 1 may be removed from the place of the next friend of the minor plaintiffs 2 and 3 and that the petitioner who is the mother of the said minors may be appointed as their next friend: see Ex. M.
3. This petition was allowed as it was not opposed. In the course of the judgment in the present suit the learned Subordinate Judge states in more than one place that the two minor plaintiffs were subsequently transposed as defendants and there is a statement to that effect also in Ex. I. But from the heading in Ex. I this is not by any means clear, because the minor plaintiffs are shown as plaintiffs still, and though their names are repeated as defendants 6 and 7 and the certified copy would include them in the bracket meant for defendants, it is not quite certain whether they were not intended to be included only as respondents to the petition. We are obliged to make this observation because the certified copy of the plaint which has been filed as Ex. A merely makes reference to the order on I. A. No. 286 of 1909 and does not refer to any further order transposing them as defendants, nor does it describe them as defendants.
4. In dealing with the merits of this appeal, it appears to us, it may be material to know whether at the time when the order Ex. B was passed declaring O.S. No. 576 of 1908 (subsequently renumbered on transfer as O.S. No. 73 of 1909 in the Additional District Munsif's Court) to have abated, the minor plaintiffs continued to be plaintiffs or had become defendants. The question will still remain whether even if they had been transposed as defendants, they are or are not entitled to complain of their mother's default in not applying to continue the suit on Sankaralinga's death. But we do not pro-pose to express any opinion on this question at this stage as we have not heard arguments upon it. We would prefer to examine such of the records of O.S. No. 576 of 1908 as are now available in original and also examine the suit register before dealing with this question further. But as it will be necessary to deal with the merits of the case only if the plaintiff's claim to relief has not become barred by lapse of time, we have heard arguments on the question of limitation. The plaint contains two prayers: (1) to have it declared that the decree dismissing O.S. No. 576 of 1908 is void and not binding upon the plaintiff and if necessary for the cancellation of the same, and (2) for possession of the suit properties. From issues 2 and 3 framed in the case and the findings of the lower Court thereon it is clear that the two prayers were treated as two substantive prayers and the lower Court insisted upon their being valued separately and court-fee being paid thereon separately. We are therefore unable to agree with the respondents' contention here that the prayer for declaration is only ancillary to the prayer for possession. This has a material bearing on the question of limitation.
5. So far as it claims possession, the suit will be barred by limitation unless the plaintiff is able to show that he has filed the suit within three years of his attaining majority. To prove this the plaintiff relies upon a school admission register, Ex. P, and the deposition of P.W. 1. We agree with the lower Court that P.W. 1 is not giving any independent evidence as to the plaintiff's age, nor is he in a position to prove Ex. P of his personal knowledge. According to him Ex. P can only be a copy of another register originally kept in the school, and it is doubtful if it is admissible at all in evidence. We are not satisfied that the plaintiff has placed the best possible evidence before the Court on this part of the ease, and as the onus lies upon him to prove that he is entitled to the benefit of Section 6, Lim. Act, we must hold against him on this point.
6. But Mr. Rajah Iyer has contended that the prayer for declaration will be governed by Article 120, Lim. Act, and according to the ruling in Basavayya v. Bapanna Rao Sowcar : (1930)58MLJ349 the period of limitation will commence to run under Article 120 not from the date of the decree sought to be set aside but from the date when the negligence of the guardian, which alone would entitle the plaintiff to have the decree set aside, became known to him. Reliance was also placed upon certain observations of the Bombay High Court in Sadasivappa v. Sangappa 1931 Bom 500. The Bombay case can be distinguished. There, the learned Judges were not prepared to take the date of the quondam minor's knowledge as the starting point, though they adverted to the hardship that may arise from the view that limitation began to run from the date of the decree itself.
7. Having regard to the fact that in the case before them the quondam minor continued in possession of the property notwithstanding the decree, they held, that till that possession was disturbed or seriously threatened to be disturbed, limitation did not commence to run against him. That line of argument is not available to the plaintiff in this case, because he has all along been out of possession. The decision in Basavayya v. Bapanna Rao Sowcar : (1930)58MLJ349 is however directly in appellant's favour. It is possible to suggest that part of the reasoning in this case is not easily reconcilable with the judgment of Sadasiva Iyer, J. in Doraiswami Serumadan v. Nandiswami Saluvan 1915 38 Mad 118 (131, 132). There are difficulties in the way of holding that another next friend might have filed a suit for a declaration on behalf of the minor even before the minor attained majority and nevertheless a fresh right to sue will accrue to the minor after he attains majority, or comes to know of the negligence of his guardian; and it must be pointed out that this line of reasoning in the case in Doraiswami Serumadan v. Nandiswami Saluvan 1915 38 Mad 118 was not adverted to in the case in Basavayya v. Bapanna Rao Sowcar : (1930)58MLJ349 . But the decision in Basavayya v. Bapanna Rao Sowcar : (1930)58MLJ349 purports to follow a number of earlier decisions of this Court which in their turn were not noticed in Doraiswami Serumadan v. Nandiswami Saluvan 1915 38 Mad 118, because they were not strictly relevant to the question then before the Court.
8. If the case in Doraiswami Serumadan v. Nandiswami Saluvan 1915 38 Mad 118 bore directly on the present point, we should have considered the necessity of referring the question to a Full Bench. But as the Doraiswami Serumadan v. Nandiswami Saluvan 1915 38 Mad 118 decision related to a different question, we do not feel any difficulty in following Basavayya v. Bapanna Rao Sowcar : (1930)58MLJ349 and holding that the prayer for a declaration is not barred in the present case. On behalf of the respondents, Mr. Srinivasa Iyer contended that the suit as framed being one for possession the whole suit must be governed by Article 144 and not in part by Article 120. We are unable to accept this contention. A suit may comprise various reliefs and the different reliefs may be governed by different articles of limitation. He next contended that the plaintiff was bound to sue for possession, and if that relief was found to be barred we ought not to dissociate the relief by way of declaration from the relief by way of possession. Whatever might have been the doubts on this question sometime ago, it is now well settled that in circumstances like the present the proper course for the plaintiff is to seek to reopen the former suit after obtaining a declaration that the decision therein or the dismissal thereof was not binding against him. The question therefore is not whether the plaintiff was not bound to sue for possession but whether we ought to deny him even the relief by way of declaration, because under some erroneous view as to the law he added a prayer for possession. We do not think it is necessary or proper to punish the plaintiff for that addition.
9. With reference to the time when the plaintiff came to know of the former suit or of his mother's conduct in relation thereto, the fact that the plaintiff's story that he came to know of the guardian's negligence only 25 days before the institution of the suit has not been accepted by the lower Court, is not sufficient to justify the view that the plaintiff's suit is barred in the light of the observations above made. Nor are we prepared to agree with the respondent's contention that because the plaintiff was living with his mother there is either any legal presumption or a necessary inference of fact that the plaintiff must have come to know of the suit and his mother's conduct therein more than six years before suit. Though we hold that plaintiff has not shown that the suit has been filed within three years of his attaining majority, there is nothing to suggest that the plaintiff attained majority more than six years before suit. As pointed out by the learned Subordinate Judge, the statement in Ex. A, the plaint in the former suit, that the plaintiff was aged about four years and a half in 1908 may fairly be accepted as true. That will certainly bring this suit within six years of his attaining majority. In the absence of very clear proof to the contrary, we are not prepared to assume that the plaintiff must have come to know of matters relating to the previous suit even before he attained majority. We are therefore of opinion that the suit is in time so far as the relief by way of declaration is concerned. What further steps the plaintiff will be entitled to take if and when he gets a declaration in terms of the first prayer in the plaint it is unnecessary for us to say in this suit. The matter will stand over till we get from the lower Court the suit register relating to O.S. No. 576 of 1908 and such of the other records of that suit as are available in original.
10. Out of the documents that were called for by our order dated 7th August 1935, only two have been sent up to us as now available, namely the suit register and the notes paper. The suit register affords no useful information. But it is clear from the notes paper that the present plaintiff and his brother must have been transposed as defendants 6 and 7 in the former suit. We therefore proceed to deal with the case on that footing. The learned Subordinate Judge has decided the case on the assumption that if the plaintiffs had been transposed as defendants 6 and 7 in the former suit, they have no right to complain of the omission of their mother to apply to continue the former suit on their behalf when their granduncle died. We are unable to agree in this view. Whether it was her duty to apply to continue that suit or not will depend upon the finding on the question whether the property involved in the suit was joint family property or not. It is true the plaintiff's mother took up the position that it was the separate property of her father-in-law and not the joint family property of Sankaralinga Kone and Swami Kone.
11. A suggestion has been made even in the course of the old suit that in so doing she was colluding with the defendants in that suit, but it is unnecessary for the purpose of this case to say anything about the truth or otherwise of that suggestion. We are willing to assume for the sake of argument that she honestly believed that the property was the separate property of her father-in-law. But if there is clear evidence showing that it was joint family property we can only attribute her attitude to ignorance, i.e., negligence in informing herself as to the true nature of the title. It is not the law that the minor can seek to be relieved of the result of the guardian's act only where she has acted fraudulently. He will be entitled to relief even in cases in which the guardian has acted with gross negligence. The question of the character of the property is adverted to in para. 23 of the judgment of the lower Court where the learned Judge refers to certain documents having been produced in the present suit, Ex. F series and G, showing that
though the property was purchased in Swami Kone's name the consideration was met by both the brothers hypothecating the properties and referring to the suit item and treating it as if it was joint family property.
12. If in truth and fact the suit property was joint family property, we are of opinion that the plaintiffs would not have an independent cause of action to sue a trespasser for possession thereof because the suit by Swami Kone was really on behalf of the joint family on an assertion of title that it was joint family property. The proper course for the plaintiffs guardian to take was to apply to be brought on the record as the representative of the plaintiff's granduncle when he died. We do not think that the effect of the transposition of the plaintiffs makes any difference for this purpose. As this question of the joint family character of the property has not been gone into by the lower Court, and we are not sure that the attention of the parties was sufficiently directed to it, we think it right to give an opportunity to both parties to lead evidence bearing upon this question.
13. In the circumstances it seems to us that the best course will be to set aside the decree of the lower Court and send the case back to that Court with direction to restore it to file and allow the parties to lead the evidence on the question whether the suit item was a joint family property of Sankaralinga Kone and Swami Kone or not. If the Court comes to the conclusion that the property was joint family property, it will follow that the guardian was guilty of negligence in not taking steps to bring the plaintiffs on record and continue the former suit. In, that contingency the lower Court will declare that the decree and order of abatement passed in O.S. No. 73 of 1909 are not binding on the plaintiffs. If, on the other hand, the Court finds that the property was the separate property of the plaintiff's grandfather the plaintiffs have no right to complain of any negligence on the part of their mother so far as the conduct of O.S. No. 73 of 1909 was concerned. In that event their suit must fail. Having regard to the way in which the plaintiff's case was presented before the lower Court on the former occasion, we do not wish to disturb the lower Court's order as to costs. The costs of this appeal will be provided for by the lower Court in its revised decree.