Devineni Subbarao vs Devineni Pattabhiramayya and Others

Wadsworth, J.—The appeal arises out of a pauper suit for the recovery of a sum of money by way of contribution in respect of the

discharge of debts binding on a former joint family consisting of the plaintiff, his elder brother the third defendant and his cousins, defendants 1 and

There was a partition in 1926 as a result of a suit brought by defendants 1 and 2, the cousins. Plaintiff and his elder brother the third defendant

remained joint. Plaintiff was then a minor. The third defendant was a major. After the partition the creditors of the family recovered the debts

largely through proceedings against the properties of the plaintiff and the third defendant. The plaintiff sued for contribution alleging that he became

a major in July 1938, the suit being filed on the 6th February, 1941. The lower Court has held that the suit was barred by limitation on the ground

that the date of the plaintiff''s birth must have been much earlier than the date given in the pleadings. We are inclined to doubt the correctness of the

lower Court''s finding regarding the date of the plaintiff''s birth. The materials are very scanty, but there does not seem to have been much basis for

the rejection of the evidence adduced on behalf of the plaintiff. The evidence consists of Ex. P-19 which is an extract from the school register

giving the date of his birth as 1st July, 1920, and the oral evidence of P. W. 3, who is the plaintiff''s maternal uncle, and of P. W. 7, supported also

by the evidence of P. W. 10, who is alleged to have presented the plaintiff for admission in the school. This evidence, so far as it relates to the date

of the plaintiff''s birth, was practically ignored in the cross-examination. On the other hand D.W. 1 swears that the plaintiff was seven years old at

the time of the partition suit filed in 1925, but he cannot give the year of the plaintiff''s birth nor can he say where he was born. There is no birth

register in the case. The statements made in previous pleadings regarding the age of the present plaintiff are conflicting. In one suit his age seems to

have been given so as to correspond roughly with the present pleading, whereas the plaint in another suit indicates that he was considerably older

than he now alleges. In this state of the evidence we are of opinion that it should have been held that the positive evidence adduced by the plaintiff

regarding his age, though imperfect, was not rebutted.

It was, however, contended in the written statement of the contesting defendants that the suit was barred by limitation by reason of the fact that

the plaintiff and his elder brother the third defendant were members of a joint family at the material time and that the third defendant was an adult

and the manager of that family and was able to give a full discharge on behalf of the family. This contention is not expressly considered in the lower

Court''s judgment, but there is a finding of fact that the third defendant was the manager of the family. We agree with that finding of fact. At the

relevant time the third defendant was the only adult coparcener. It appears to be true that the third defendant was not living with his step-brother,

the plaintiff. In previous proceedings we find the plaintiff represented as guardian ad litem sometime by his mother and in other proceedings by the

third defendant. The third defendant has himself deposed that he was never taking any part in the management of the family. But this does not

appear to be true. No doubt in various sale transactions both the third defendant and the plaintiff''s mother, acting as his guardian signed the

documents; but we do find that in Ex. P-5, a suit against the family on a promissory note, the first defendant actually contested the suit while the

present plaintiff represented by his mother and guardian allowed the suit to proceed ex parte. That is an indication that the present third defendant

was representing the family in the litigation. Again we find in Ex. P-8 (a) which is the suit register extract relating to the suit of 1930 on a

promissory note, that the promissory note in question was executed by the third defendant along with the plaintiff''s mother and another female

member of the family; but there is nothing to indicate that the plaintiff himself was represented by his mother as an executant of the note. . That is to

say, it would appear that in respect of a family debt, the third defendant signed on behalf of the family and the creditor took the signature of the

mother of the plaintiff merely in order to bind her personally. This is a clear indication that the third defendant was in fact the manager of the family.

Moreover, if the third defendant was not the manager of the family, who was? After the partition, third defendant and the plaintiff possessed

considerable properties. They have all gone now, but some one necessarily had to represent the family in the management of those properties after

the partition and the presumption is that it was the third defendant. Except for the bare statement of the third defendant there is nothing to show that

in the discharge of debts he did not exercise the functions of the manager. In these circumstances we must hold that the third defendant was the

manager of the family.

The law on the subject is now quite clear. The Full Bench in Doraisami Serimadan v. Nondisami Salman (1912) 25 M.L.J. 405: ILR 38 Mad.

118 decided that a suit to set aside an alienation, filed more than three years after the majority of the elder brother who was the manager of the

family, was barred by limitation u/s 8 of the Limitation Act as it then stood (now Section 7) even though the suit was filed within three years of the

majority of the younger brother. At one time--vide Rajagopala Aiyangar and Others Vs. Srinivasa Raghava Aiyangar and Others, there was some

doubt whether this decision was good law in the light of the decision of the Privy Council in AIR 1925 16 (Privy Council) , which was a case of a

suit by two sons against their father to set aside an invalid alienation by the father. But that was clearly not a case in which the elder son was the

manager. The Privy Council held that the suit was not barred having been brought within three years of the majority of the younger son. The effect

of the decision of the Privy Council has been clearly explained by the decision in Jaddu Padhi v. Chokkappa Boddu (1934) 67 M.L.J. 27 : ILR 58

Mad. 155, with which we are in entire agreement and a similar view was taken in Bakthavatsaludu v. Narasimha Rao (1937) 67 M.L.J. 195 : ILR

(1940) Mad. 752. It seems to us well established that although a suit by the younger of two brothers filed within three years of his attaining

majority would be barred by limitation if the elder brother had failed to sue within three years of his majority, if the former was a manager of the

family, Section 7 of the Limitation Act would not operate as a bar if the adult brother was not the manager of the family during the relevant period.

In the present case in view of our finding that the elder brother, the third defendant, was the manager of the family and was an adult during the

whole of the relevant period, a suit by the younger brother must fail, even though brought within three years of his attaining majority, having regard

to the provisions of Section 7 of the Limitation Act.

In this view we dismiss the appeal with costs of respondents 1 and 2. We direct the appellants to pay the court-fee due to Government.