Doraisami Sirumadan and Another vs Nondisami Saluvan and Others

Arnold White, C.J.—I have read the judgment of Sankaran Nair J. and I agree. The Letters Patent Appeal is dismissed with costs.

Sankaran Nair, J.

The properties in suit belonged to the plaintiff''s 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 1st plaintiff was 23 years old and the 2nd plaintiff 20. The plaintiff''s case is that the

suit is not barred by limitation as it was brought within 3 years of the 2nd plaintiff''s attaining majority and as the 1st plaintiff could not give a valid

discharge without the concurrence of the 2nd plaintiff. Both the lower courts dismissed the suit on the ground that it was barred by limitation

following the decision in Vigneswar v. Bapayya ILR (1892) M. 436 The learned Judges of this court who heard the case differed in their opinion.

Mr. Justice Abdur Rahim holding that the suit was barred and Mr. Justice Sundara Aiyar holding that the suit was barred so far as the 1st plaintiff

was concerned and that it was not barred with reference to the claim of the 2nd plaintiff. This is an appeal from the decision of Mr. Justice Abdur

Rahim confirming the decrees of the courts below.

The question for decision is whether the plaintiff''s 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 3 years and the

time from which it begins to run is stated to be ""when the ward attains majority."" It is contended by Mr. Venkatrama 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 2nd

plaintiff became of age in 1907 and time began to run only from that date. The 1st 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.

The next question is whether the suit so far as the 2nd plaintiff alone is concerned is barred. The contention on behalf of the defendants is that his

claim is barred u/s 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 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 when 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.

The question then remains for consideration is whether Section 8 is applicable to the case. If the 1st plaintiff on attaining majority was competent

to give a discharge of the claim of the 2nd plaintiff then time began to run against the 2nd plaintiff also in 1904. It cannot be denied that on his

attaining majority the 1st plaintiff became the managing member of the family to which the 2nd plaintiff belonged, that as such he represented the

family. It was competent for him to deal with the interest of the 2nd 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 Aiyar, J.

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 Aiyar

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

Aiyar J. and myself, the question of the minor''s right 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. (S. A. Nos. 892 to 912 of 1911 decided on

27th September 1912).

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 bona fide brought on behalf of the ward during his minority and

decided against him, it is clear that the ward''s powers 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 see 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.

After anxious consideration, I 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 bona 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 guardians;

(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.

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 is

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 S.A.

No. 892 of 1911 decided by Sundara Aiyar 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 bat of the whole of the alienated family property including

his minor brother''s share treating the whole as family properly 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 Ahimsa Bibi v. Abdul Kader Sahib ILR (1901) M. 26 be allowed to contend that he 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.