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The Administrator-general Vs. Thotta Radakrishnan Chettiar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in161Ind.Cas.969
AppellantThe Administrator-general
RespondentThotta Radakrishnan Chettiar and ors.
Cases ReferredRati Ram v. Niadar
Excerpt:
civil procedure code (act v of 1908), order xxxii, rule 6, 7 - limitation act (ix of 1908), sections 6, 7--decree by joint family including minors--manager not next friend of minors--power of manager to give discharge--application for execution--limitation. - .....decree and is still a minor, and as the other decree-holders were not in a position to give a valid discharge without the concurrence of the said minor, the right of all the decree-holders to apply for execution is not barred by reason of the provisions of section 7 of the indian limitation act. the said purshotham chetti is one of the sons of the 1st plaintiff and was brought on record on the death of the 1st plaintiff when the appeal against the original decree was pending in this court. he was then represented by his elder brother, venkatarangam chetti, the 6th plaintiff as his next friend. but in the final decree, it was kothandarama chetti, another brother of his, and the 7th plaintiff in the suit, who was his next friend, and not venkatarangam chetti. the learned subordinate.....
Judgment:

K.S. Menon, J.

1. This is an appeal from the order of the Additional Subordinate Judge of Trichinopoly, dismissing E.P. No. 205 of 1929 in O.S. No. 16 of 1914 on the ground that it is barred by limitation.

2. The only question that arises for decision in this appeal is whether the Execution Petition is barred by limitation.

3. This petition is riled by the Administrator-General of Madras representing the estate of Eapoor C. Ramalingam Chettiar, who it is alleged, had become entitled to the rights of the late Thotta Rajagopala Chettiar, who was the 4th plaintiff in the suit. The final deeree in the suit, which was one for sale of the mortgaged properties, was passed on November 2, 1920; and this petition was filed on June 24, 1929. The first contention of the appellant is that as the decree was subsequently amended by an order made on July 13, 1929, (Ex. G) on an application made by one of the defendants in the suit and one of the items of the decree was deleted, he is entitled to have the date of the amendment taken as the, starting point for purposes of limitation and that if it is so done, this application is not barred. But, as already observed, this application was filed before the date of the said amendment and is for the execution of the final decree as originally passed on November 2, 1920, and not of the amended decree. Further, no application has till now been made by the appellant either for the execution of the amended decree or for the amendment of the execution petition. In these circumstances, so far as this execution petition now before us is concerned, time began to run from the date of the final decree and not from the date of the amendment, and the amendment does not enure to the benefit of the appellant. The records in the case reported in Thiagaraja Thevar v. Sambasiva Thevar 57 M 795 : 148 Ind. Cas. 1088 : A I R 1934 Mad. 283 6 R M 563 : 66 M L J 492 : (1934) M W N 90 : 39 L W 488, relied on by the appellant, show that, in that case, there was an application for amendment of the execution petition after the decree was amended. The decision therein, therefore, does not help the appellant.

4. It is next argued that as one of the decree-holders namely Purushotham Chetti, who was the 8th plaintiff in the suit, was a minor on the date of the final decree and is still a minor, and as the other decree-holders were not in a position to give a valid discharge without the concurrence of the said minor, the right of all the decree-holders to apply for execution is not barred by reason of the provisions of Section 7 of the Indian Limitation Act. The said Purshotham Chetti is one of the sons of the 1st plaintiff and was brought on record on the death of the 1st plaintiff when the appeal against the original decree was pending in this Court. He was then represented by his elder brother, Venkatarangam Chetti, the 6th plaintiff as his next friend. But in the final decree, it was Kothandarama Chetti, another brother of his, and the 7th plaintiff in the suit, who was his next friend, and not Venkatarangam Chetti. The learned Subordinate Judge has found that the said Venkatarangam Chetti, who is the eldest son of the 1st plaintiff, was the manager of the branch to which Purushotham Chetti belonged, till July 23, 1922, when a partition was effected, between the members of that branch. There is evidence to support this finding and we see no reason to come to a different conclusion. The argument advanced on behalf of the appellant is that though Venkatarangam Chetti, the manager of the branch to which the minor belongs was a party to the suit, still as he was not the next friend of the minor, he was incompetent to give a valid discharge binding the minor also. In other words, the argument amounts to this. As the minor was represented in the suit by Kothandarama Chetti, he and he alone could have given a valid discharge binding the minor, and even that, only with the permission of the Court obtained in accordance with the provisions of Order XXXII, Rule 6, Civil Procedure Code, and Venkatarangam Chetti, even though he was the manager of the branch, was incompetent, in the circumstances to give a valid discharge binding the minor.

5. Ordinarily the manager of a joint Hindu family is competent to give a valid discharge by himself without the concurrence of the rest of the family including the minors. If, however, he happens to be the guardian ad litem or the next friend of a minor member of his family, it has been held that he would not be competent to give a valid discharge in respect of the subject-matter of the suit or decree wherein he occupies such a position without obtaining the permission of the Court under Order XXXII, Rule 6, in respect of the interest of such minor. In the case of Ganesha Row v. Tuljaram Rao 36 M 295 : 19 Ind. Cas. 515 : 17 C W N 765 : 11 A L J 589 : 18 C L J 1 : 15 Bom. L R 626 : 14 M L T 1 : (1913) M W N 575 : 25 M L J 150 : 40 I A 132 , where the compromise of a suit entered into by the father, who was the guardian ad litem of his minor son without obtaining the leave of the Court under Section 462 of the Code of Civil Procedure, 1882, was called in question by the minor subsequently, their Lordships of the Privy Council observed as follows:

No doubt a father or managing member of a joint Hindu family may, under certain circumstances and subject to certain conditions, enter into agreements which may be binding on the minor members of the family. But where a minor is party to a suit and a next friend or guardian has been appointed to look after the rights and interests of the infant in and concerning the suit, the acts of such next friend or guardian are subject to the control of the Court...The Courts in India seem to think that because Rajaram was a party to the suit of 1886 and was also guardian ad litem for his minor son, who was a member of the joint family whom Rajaram was representing, it was open to him to eater into the compromise in his personal capacity, and as it was a bona fide settlement of a disputed claim it became binding on the minor by virtue of his having acted as the managing member of the family. How far threats of a father or managing member may affect a minor, who is a party to the suit represented by another person as next friend or guardian ad litem is a question which does not arise in the case, and their Lordships are not called upon to express an opinion on it. But they consider it to be clear that when he himself is the next friend or guardian of the minor his powers are controlled by the provisions of the law and he cannot do any act in his capacity of father or managing member which he is debarred from doing as next friend or guardian without leave of the Court. To hold otherwise would be to defeat the object of the enactment.

6. The same principle was applied to Execution Petitions in the case of Latchmana Chetty v. Subbiah Chetty : AIR1925Mad78 . In that case it was held that the father, who was the next friend of his minor sons in the suit and in the decree, was incompetent to give a valid discharge in respect of the decree without leave of the Court obtained under Order XXXII, Rule 6, Civil Procedure Code and that, Section 7 of the Limitation Act applied. If, therefore, in the present ease Venkatarangam Chetti had been the next friend of the minor, it is clear that he could not have given a valid discharge affecting the interests of the minor without obtaining the leave of the Court and that, according to the decision in Latchmana Chetty v. Subbiah Chetty : AIR1925Mad78 Section 7 of the limitation Act would apply. But in this case Venkatarangam Chetti was not the next friend of the minor in the final decree, though he was so in the earlier stages of the case. His powers as manager of the branch to which the minor Purushotham Chetti belonged was not, therefore, restricted or curtailed by any statutory rule like the one in Order XXXII, Rule 6, Civil Procedure Code and we do not think that his right as such a manager to receive money due under a decree and give a valid discharge without the concurrence of the minor was, in any way, affected by the fact that it was another brother of his who was representing the minor as next friend. We have not been referred to any decision directly bearing on this point in which it was held that the fact that another person was the next friend of the minor, precluded the manager of the family to which the minor belongs, from giving a valid discharge. The two decisions relied on by the learned Advocate for the appellant are cases where the compromises during the course of the suit entered into by the father without obtaining the sanction of the Court under Section 462 of the old Code corresponding to Order XXXII, Rule 7 of the present Code, were subsequently challenged by the minor son who was represented by the father and not by another, as his next friend. It was held that non-compliance with the provisions of Section 462 of the old Code or Order XXXII, Rule 7 of the new Code rendered the compromise invalid so far as the minor was concerned. In neither of these cases was there any question of the application of the provisions of Section 7 of the Indian Limitation Act or of the nature of the powers of a manager to give a valid discharge of a decree in favour of himself and a minor member of the family represented by another member.

7. In the case of Vijaya Ramayya v. Venkata Subba Rao 39 M 853 : 32 Ind. Cas. 881 : 30 M L J 465 the contention was that, as the compromise was entered into by the father who was not the guardian ad litem of the minor, no sanction of the Court was necessary under Section 462, Civil Procedure Code, (1882) and this Court (Ayling and Hannay, JJ.) negatived the contention observing: 'We cannot accept the suggestion that when he had no responsibility for them, and when their interests were entrusted to another person be should have larger powers to bind them. We have no hestitation in rejecting this contention'.

8. In the case before us there is no question of any compromise being ejected by the managing member on behalf of the minor without obtaining the leave of the Court under Order XXXII, Rule 7 corresponding to Section 462 of the old Code. The decision in Vijaya Ramayya v. Venkatasubba Rao 39 M 853 : 32 Ind. Cas. 881 : 30 M L J 465 therefore is no authority, for the position that in cases like the present the ordinary powers of the manager to give a valid discharge of a decree are restricted when he is not the next friend of the minor.

9. Again, in the case of our Gur Mallappa v. Mallappa Martandappa 44 B 574 : 57 Ind. Cas. 417 : 22 Bom. L R 725 the question was whether a compromise entered into by the mother of a minor, with the consent of the guardian ad litem of the said minor, but without the leave of the Court obtained by either the mother or the guardian was valid and binding on the minor, Heaton J., observed:

That compromise in my opinion was contrary to law because in effect it defeated the purpose of Section 462. That section, I think, necessarily implies that during the continuance of proceedings in Court, the dispute between the minor and another party which the Court had to decide could not be compromised except by the guardian ad litem of the minor, and by him only with the leave of the Court.

10. Macleod, C.J., was not, however, prepared to go so far. His Lordships observed:

My brother Heaton, however, thinks that on general principles when a minor is represented in a suit by a guardian ad litem other than his natural guardian, the powers of his natural guardian to deal with the minor's interest which are involved in those proceedings are suspended. I am not preprepared to go so far as that, but on the facts in this case I am not disposed to differ as Neelava had applied to the Court to sanction the compromise and thereby, I think she put it out of her power to settle the creditor's claim as the minor's natural guardian without the Court's consent.

11. On the other hand, in the case of Ganesha Raw v. Tuljaram Row 36 M 295 : 19 Ind. Cas. 515 : 17 C W N 765 : 11 A L J 589 : 18 C L J 1 : 15 Bom. L R 626 : 14 M L T 1 : (1913) M W N 575 : 25 M L J 150 : 40 I A 132 this Court, (Benson, O.C.J.) and Sankaran Nair, J. against whose judgment the appeal to the Privy Council was preferred, observed as follows:

If, therefore, some other person had been the minor's next friend or guardian for the suit, then the plaintiff's father could nave entered into the agreement now in question with Tuljaram the judgment-debtor on his own behalf without any reference to Section 462, Civil Procedure Code.

12. Their Lordships of the Privy Council, however, did not decide that question, expressly observing that it did not arise for decision in that case, as already pointed out.

13. In the case of Latchmana Chetty v. Subbiah Chetty : AIR1925Mad78 also Coutts Trotter, C.J. was inclined not to disagree with the view that where the father is not the guardian ad litem he could take money and give a valid discharge, but his Lordship observed that he would like to re-consider that position when occasion arose.

14. As the provisions of Order XXXII, Rules 6 and 7 do not restrict in any way the powers of a father or a manager in a joint Hindu family to receive the amount of a decree and to give a discharge so as to bind a minor member of his family also, who is a party to the suit, without obtaining the leave of the Court, in cases where such father or managing member is not the next friend of the said minor, and as there is no other provision, statutory or otherwise, imposing such a restriction, we do not think that those powers of his are in any way affected by the mere fact that another person is the next friend of the minor.

15. The view we take of Section 7 is in accordance with that expressed by a Division Bench of the Calcutta High Court in the case of Abed Hossain v. Abdur Rahman : AIR1935Cal631 where Nasim Ali, J. observed:

Section 7 contemplates a legal capacity to give discharge without the concurrenee of the person under disability. The section requires that the co-decree-holder in addition to his capacity as a co-decree-holder must have such a legal capacity as would empower him alone to realise the decretal debt and give a discharge without putting the decree into execution, even if his minor co-decree-holder had been under no disability and had the capacity to give his assent. Familiar instances of such legal capacities are those of a partner and the karta of a joint Hindu family. Their legal capacity to give discharge is derived from the substantive law.

16. Even if it has to be held that in cases of this kind where the father or the managing member is not the next friend of the minor, such father of managing member has to obtain the leave of the Court, we do not think that that affects his capacity to give a discharge. His position as the manager of the family gives him the right to give a discharge without the concurrence of the other members of the family, adult or minor. This right is derived from the substantive law and is not affected in any way by any of the formalities which may have to be gone through in enforcing it. One of such formalities may be we do not at all say that it is to inform the Court and obtain its leave.

17. Those acts merely relate to the procedure and are not such as will affect his capacity. We find that the Allahabad High Court also has taken the same view, for in the case of Rati Ram v. Niadar 41 A 435 : 49 Ind. Cas. 990 : 17 A L J 649 Walsh, J. said:

It is no doubt true that when the matter is in the execution Court, it is literally true, speaking of it as a matter of procedure, to say that a discharge cannot be given, because payment for example, has to be made in and through the Court or certified by the Court, so that the discharge becomes an order of the Court itself. But I take the clear view, and I think it removes all the difficulties in this case, that Sections 6 and 7 are dealing, not with procedure, but with the legal status of individuals, and the expression 'where a discharge can be given', is merely intended in Section 7 to be a definition of a person who in the ordinary legal language is described as being 'able to give a discharge'. That is a definition of his legal capacity in relation to the other persons jointly interested, and not a description of his physical powers under the procedure of the execution Court.

18. The fact that the leave of the Court may have to be obtained, therefore, does not affect the capacity to give a valid discharge. In any view of the case, therefore, Venkatarangam Chetti and the other adult decree-holders would have been competent to give a discharge without the concurrence of the minor Purushotham Chetti. We therefore hold that time began to run from the date of the final decree and that the present petition is barred.

19. It was then contended that, as Venkarangam Chetti was the manager of branch to which Purushotham Chetti belonged only till July 23, 1922, and not for the full period of three years after the passing of the final decree, even if time began to run from the date of the final decree, it should be deemed to be arrested on the date when Venkatarangam Chetti ceased to be the manager. But Section 9 of the Limitation Act, lays down that 'where once time has begun to run, no subsequent disability or inability to sue stops it'. And there is no provision in the Limitation Act which supports the contention raised by the appellant.

20. The appeal, therefore, fails and is dismissed with costs of the first respondent.


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