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Smt. Shanti Devi and ors. Vs. Rajeshwar Parshad and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtHimachal Pradesh High Court
Decided On
Case NumberEx. Second Appeal No. 2 of 1971
Judge
Reported inAIR1981HP65
ActsLimitation Act, 1908 - Section 7 - Schedule - Article 182; ;Code of Civil Procedure (CPC) , 1908 - Section 48
AppellantSmt. Shanti Devi and ors.
RespondentRajeshwar Parshad and ors.
Appellant Advocate Pratima Malhotra, Adv.
Respondent Advocate B.B. Vaid, Adv.
DispositionAppeal dismissed
Excerpt:
family - majority - section 7 of limitation act, 1908 - execution application filed by respondents within three years of attaining majority of one of its member - appellant contended that execution petition was time barred as it was filed after 12 years of passing of decree - under section 7 when one of several persons entitled to make application for execution of decree is under disability due to one of them time will not run against them until one of them becomes capable of giving such discharge without concurrence of others - all three respondents were brothers jointly obtaining a decree for declaration and possession of joint family property - time would start against all three respondent when all of them become capable of executing a executing a decree. - .....in default on 5-12-1957. no further application to execute the decree was made till 29-8-1962 when shri chatur bhuj, respondent no. 3, filed the subsequent application for execution of the decree and out of which the present appeal has arisen.6. it may be mentioned at this stage that when the suit giving rise to the decree in question, was filed by respondents 1 to 3, only one of them, namely, shri rajeshwai prashad, respondent no. 1, was major and the other two sarvashri tek chand and chalur bhuj were minors. in fact chatur bhuj, respondent no. 3, who has now sought execution of the decree was born on 16-10-1941 and he thus attained majority only on 16-10-1959. the execution application which was admittedly filed on 29-8-1962 had thus been filed within three years of the date of.....
Judgment:

T.R. Handa, J.

1. The sole question canvassed in this second appeal arising out of execution proceedings is whether the sedition application dated 29-8-1962 filed by Shri Chalur Bhuj respondent No. 3 (one of the decree-holders) in the executing Court is within time.

2. This is how this question has arisen. Sarvashri Rajeshwar Prashad, Tek Chand and Chatur Bhuj, the respondents herein arc real brothers and they constituted joint Hindu family with their father, Shri Babu Ram. Jogindra Central Co-operative Bank Limited, respondent No. 4 obtainct a decree against Shri Babu Ram, the father of respondents 1 to 3 and his brother Shri Jyanti Prashad on the basis of a pronote. Tn execution of that decree certain properties were attached and sold.

3. Respondents 1 to 3 Sarvashri Rajeshwar Prashad, Tek Chand and Chatur Bhuj then brought a suit in the Court of Subordinate Judge, Nalagarh, for a declaration that the pronote executed by their father Shri Babu Ram and his brother Shri Jyanti Prashad in favour of the respondent Bank was fictitious and without consideration, that the decree passed in favour of the Bank on the basis of that pronote was void and ineffectual as against these respondents and that the properties which had been attached and sold in execution of that decree, being the coparcenary property of the joint Hindu family constituted by these respondents with their father Shri Babu Ram and his brother Shri Jyanti Prashad, the sale of such property in execution of the above-said decree was null and void and not binding upon them. They also prayed for a decree for possession of the properties which had been sold in execution of the decree. Jogindra Central Co-operative Bank Limited. respondent No. 4, and the auction-purchasers were impleaded as party defendants in that suit.

4. The suit was dismised by the trial Court but in appeal the learned District Judge granted in favour of respondents 1 to 3 a declaration that the decree in so far as it operates against Shri Babu Ram, the father of these respondents, was not binding on them and that no properly of the joint Hindu family, constituted by these respondents with then father Shri Babu Ram, was liable for attachment or sale in execution of that decree. The learned District Judge further granted these respondents a decree for possession in respect of the properties in so far as they had been attached and sold in execution of the decree against their father, Shri Babu Ram. A perpetual injunction was also granted by the learned District Judge restraining the respondent Bank 'from executing the decree against the joint family properties of these respondents. This decree was passed by the learned District Judge on 20-7-1950.

S. Jogindra Central Co-operative Bank Limited, respondent No. 4, preferred an appeal against the judgment and decree of the District Judge in the Pepsu High Court. That appeal was, however, dismissed in default on 26-3-1954.

S-A. Thereafter it was on 9-4-1957 that Shri Rajeshwar Prashad, respondent No. 1, moved the first application to execute the decree. This application was, however, dismissed in default on 5-12-1957. No further application to execute the decree was made till 29-8-1962 when Shri Chatur Bhuj, respondent No. 3, filed the subsequent application for execution of the decree and out of which the present appeal has arisen.

6. It may be mentioned at this stage that when the suit giving rise to the decree in question, was filed by respondents 1 to 3, only one of them, namely, Shri Rajeshwai Prashad, respondent No. 1, was major and the other two Sarvashri Tek Chand and Chalur Bhuj were minors. In fact Chatur Bhuj, respondent No. 3, who has now sought execution of the decree was born on 16-10-1941 and he thus attained majority only on 16-10-1959. The execution application which was admittedly filed on 29-8-1962 had thus been filed within three years of the date of attaining majority by this respondent decree holder.

7. This execution application being filed, the judgment debtors raised certain objections before the executing Court. One of the objections was that the execution application was time barred and here in this second appeal we are concerned only with this objection as the other objections which did not find favour with the Courts below were not pressed.

8. In support of the objection with respect to limitation two contentions were raised on behalf of the appellant-judgment-debtors before the Courts below. The first contention was that the execution application which was moved on 29-8-1962 by Shri Chatur Bhuj, respondent No. 3, having been filed more than 12 years after the date of the decree which was passed on 20-7-1950, the same was barred under Section 48 of the Code of Civil Procedure. The .second contention raised was that the iirst execution application having been dismissed in default on 5-12-1957 and no other application to execute the decree having been brought within three years of the date of that dismissal, the execution application moved on 29-8-1962 was barred under Article 182 of the Limitation Act, 1908.

9. In answer to the first contention the plea taken on behalf the respondent decree holders was that the date of the decree was 26-3-1954 when the appeal was dismissed by the High Court and not 20-7-1950 when the decree was passed by the District Judge. Both the Courts below found that the date of the decree was when the appeal was dismissed by the High Court, though in default, and hence the execution application dated 29-8-1962 had been filed within 12 years of this date. With respect to the second contention that the execution application dated 29-8-1962 had been filed more than three years after the dismissal in default of the first application, the Courts held that the respondent decree holders were entitled to the benefit of Section 6/7 of the Limitation Act, 1908 and hence the application could be filed within three years of the date of attaining majority by Shri Chatur Bhuj respondent No. 3. The objection with respect of limitation was thus overruled by the executing Court and this decision was upheld by the learned District Judge,

10. After hearing the learned counsel for the parties at length, I am of the firm view that Section 7 of the Limitation Act, 1908 is a complete answer to the objections raised on behalf of the appellant-judgment-debtors with respect to limitation. In view of the express language of Section 7 of the Limitation Act, 1908 neither the provisions of Section 48 of the Code of Civil Procedure nor of Article 182 of the Limitation Act, 1908 could be attracted to support the objection of limitation as sought to be raised on behalf of the appellant-judgment-debtora. Section 7 of the Limitation Act, 1908 reads :

'7. Disability of one of several plaintiffs of applicants.-- Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability and 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 sucb discharge without the concurrence of the others or until she disability has ceased.

ILLUSTRATIONS

(a) A incurs a debt to a firm of which B, C and D arc partners. B is insane, and C is a minor. D can give a discharge of the debt without the concurrence of B and C. Time runs against B, C and D.

(b) A incurs a debt to a firm of which E, P and G are partners, E and F are insane, and G is a minor. Time will not run against any of them until either E or F becomes sane, or G attains majority.

11. The plain language of this section thus clearly enjoins that where one of the several persons who are jointly entitled to make an application for the execution of a decree is under a disability and where without his concurrence, the other decree holders cannot give a complete and valid discharge, time will not run as against any of them until one of them becomes capable of giving such a discharge without the concurrence of the others or until the disability has ceased. It is an admitted position that respondents 1 to 3 who were the plaintiffs in the suit in which the decree in question was passed are real brothers and they constituted a joint Hindu family with their father Shri Babu Ram. it is also an established fact that the properties in. dispute were the properties of the joint Hindu family constituted by these respondents with their father. All these members of the joint Hindu family were thus holding the properties jointly with mutual rights of survivorship. It was thus strictly a case of joint tenancy. When these properties were taken out of the hands of the family in execution of the decree obtained by the respondent Bank against Shri Babu Ram, the father of respondents 1 to 3, all these three respondents were jointly entitled to institute a suit for the recovery of these properties which in fact they did. A joint decree of declaration and possession was passed in their favour and all the three brothers were jointly entitled in law to make an application for the execution of that decree. Now it is not disputed that Shri Chatur Bhuj, respondent No. 3, one of the three persons jointly entitled to make the application for execution of the decree, was minor when the decree was passed and he contined to remain so till 16-10-1959. Unless it can be shown that without the concurrence of this minor, the other decree holders or one of them could give a complete and valid discharge of the decree during his minority, time could not run as against any of them till this Chatur Bhuj minor attained majority. Now as already observed these three respondents constituted a joint Hindu family with their father Shri Babu Ram. Shri Babu Ram was alive when the present execution application was moved in August 1962. He being the father and the senior-most member of the family is deemed to be the Karta of the joint Hindu family. Now under the Hindu Law it is only the Karla who can represent all the members of the family and has the power to lake action which binds the family in connection with all matters of management of the family business and property. In exercise of that power the Karta of the family could of course give a valid discharge of the decree on behalf of the minor coparcener. The other two joint decree-holders, however, being junior members of the family had not such power either to act as Karta or to give; a valid discharge on behalf of the minor joint decree-holder. Such junior members of a joint Hindu family do have a right to question, unauthorised alienation of the joint family property but such right is an individual and personal right of each member. In exercise of such right no junior member could give a valid discharge on behalf of others within the meaning of Section 7 of the Limitation Act, 1908.

12. The factual position that emerges in the instant case is that all the three brothers, respondents 1 to 3, constituted a joint Hindu family with their father Shri Babu Ram. The father, being the head of the family, was naturally the Karta of the joint family and all the three respondents decree-holders were only the junior members of the family. All these three brothers respondents 1 to 3 having jointly obtained a decree for declaration and possession of joint family property, they were jointly entitled to make an application for the execution of the decree. At least one of them, namely, Shri Chatur Bhuj respondent No. 3 was minor at the time when the decree was passed and as such was under a disability within the meaning of Section 6/7 of the Limitation Act, 1908. This disability continued right up to 16-10-1959 when he attained majority. The other two joint decree-holders Saivshri Rajeshwar Prasad and Tek Chand being junior members of the family were not in a position to give a valid and complete discharge of the decree on behalf of the minor Shri Chatur Bhuj.

13. In these circumstances in view of the unambiguous language of Section 7 of the Limitation Act, 1908, time could not run against any of the three joint decree-holders till Shri Chatur Bhuj attained majority. Now Shri Chatur Bhuj admittedly attained majority on 16-10-1959 and it is only from this date that the time would start running against all the joint decree-holders. The fact that the execution application made by Shri Chatur Bhuj after attaining his majority on 29-8-1962 had been made within or beyond 12 years of the passing of the decree would in the circumstances ineniioned above be of no consequence inasmuch as irrespective of the date of decree, this respondent was in any case entitled to apply for execution of the decree within three years from the dale of his attaining majority. For the same reason the fact that the application dated 29-8-1962 made by Shri Chatur Bhuj had been filed beyond three years of the date of dismissal of the earlier application filed by respondent No. 1 is also of no consequence. In fact no proper application for execution could be filed during the minority of Shri Chatur Bhuj respondent unless one of the other two joint decree-holders was capable of giving a complete and valid discharge of the decree on behalf of the minor. The making of the application by respondents 1 and 2 without the authority to give discharge on behalf of respondent No, 3 who was then minor must, therefore, be ignored. The present application having been filed within three years of the dale of attaining majority by Shri Chatur Bhuj respondent, the same must be held to be within time and the objection of the appellant judgment-debtors in respect of limitation is, therefore, not sustainable.

14. In the result this appeal is dismissed with costs.


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