Ghouse Hameed Marcair vs Ameena Bi and Others

Sadasivam, J.—Appeal by the first Defendant Ghouse Hameed Marcair against the preliminary mortgage decree and judgment in Original

Suit No. 122 of 1961, on the file of the Sub-Court, Cuddalore, against him and Defendants 2 to 4 for Rs. 24,703 made up of a sum of Rs. 14,000

and interest. The claim was made on a compromise decree, dated 12th September 1947, in Civil Suit No. 165 of 1942, on the file of this Court,

under which Defendants 1 to 4 in this suit, who were Defendants 6 to 9 in the earlier suit, agreed to pay Rs. 14,000 with interest at 6 per cent per

annum to the Plaintiffs and the fifth Defendant in this suit, who were Plaintiffs in the earlier suit. A year''s time was given for the payment of this sum.

They agreed to a charge on the suit properties for the payment of the said amount. The present suit has been filed on 14th August 1961. But as the

Defendants are admittedly agriculturists, a period of one year, six months and twenty-six days have to be excluded by virtue of (Madras Ordinance

v. of 1953) and Madras Acts v. of 1954 and I of 1955. The time for payment also commenced a year after the compromise decree. Thus the suit

filed as on a mortgage is within time and this is not disputed.

There is also no dispute about the amount claimed in the suit. The learned Principal Subordinate Judge, who tried the suit, held that the suit

properties were the subject-matter of the earlier suit Civil Suit No. 165 of 1941, on the file of this Court, and he rejected the contention of the

contesting Defendants that the compromise required registration. He, however, found that the alternative money claim made by the Plaintiffs was

not saved by Sections 8 and 9 of the Limitation Act of 1908 and was barred by limitation. It is only in respect of these findings arguments were

advanced by both sides.

The main contention of Sri Champakesa Iyengar for the Appellant is that the suit properties did not form the subject-matter of the earlier suit

Civil Suit No. 165 of 1941, on the file of this Court, and hence the consent decree in not exempt from registration. He relied on the decisions in

Kandula Ramayya Vs. Bangaru Rangaraju and Others, and A. Konda v. A. Pedademudu AIR 1957 A.P. 454. In Kandula Ramayya Vs. Bangaru

Rangaraju and Others, VENKATARAMANA RAO J., has referred to the fact that the expression subject-matter of the suit is not defined in the

Registration Act. In construing the relevant clause of Section 17(2)(vi) of the Registration Act exempting from registration a compromise decree

comprising immovable property which is the subject-matter of the suit or proceeding, the learned Judge has expressed the following opinion: -

It seems to me that what the clause contemplates is that specific immovable property must be the subject-matter of litigation. There must be a claim

or right in or to the specific immovable property asserted in the litigation and relief sought in respect thereof in order to make the said property the

subject-matter of a suit. A claim to have a liability satisfied out of the general estate of a person is not enough in such a case it cannot be said that

all the movable and immovable property belonging to him forms the subject of litigation and therefore the subject-matter of a suit.

The Petitioner in that case filed a suit against the father and the sons to recover a sum of money due under a promissory note executed by the

father alone on the allegation that the debt was incurred for a necessary purpose. He sought the usual decree against the father personally and

against the joint family properties in the hands of the sons. The suit was compromised and a decree was passed in terms of the compromise

whereby the Defendants were directed to pay the suit debt in two installments and the debt was secured by a charge on two items of immovable

properties mentioned in the decree. It has been rightly held in that case that as the immovable property which was charged in the compromise

decree was not the subject-matter of the suit, the decree required registration u/s 17, Sub-section (2), Clause (vi) of the Registration Act and the

charge, therefore, cannot prevail as against the claims of rival decree-holders for ratable distribution. Obviously a plaint in a simple money suit

cannot be construed as one involving a claim against immovable property merely because it contains a prayer for making a decree charge upon

shares of Defendants.

In A. Konda v. A. Pedademudu AIR 1957 A.P. 454, a Bench of the Andhra Pradesh High Court relied on the above decision of

Venkataramana Rao J., and observed that one test in order to ascertain whether any immovable property is the subject-matter of a suit is whether

a transfer of the property involved in it would be hit at by the doctrine of lis pendens. The first Defendant in that suit, who was the brother of the

Plaintiff in that suit relied on a compromise decree in an earlier suit filed by them as reversioners against the widow of their paternal uncle''s son and

her alienees questioning the alienations. It has been held in that decision that the right to the immovable property, the alienation of which is sought to

be set aside is involved directly and specifically in the earlier suit and hence the compromise decree could be received in evidence, even though

unregistered. Reliance was placed in that decision on Order XXIII, Rule 3 , CPC Code, which is as follows:

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where

the Defendant satisfied the Plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement

compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.

It has been observed in that case that if the immovable property in question can be said to be the subject-matter of the suit, it is clear that the terms

of the compromise decree relates to the suit and the decree is in accordance therewith. There can be no doubt about the correctness of the actual

decision in this case. If a transfer of property involved in a suit would be hit by the doctrine of lis pendens, it is quits obvious that the immovable

property is the subject-matter of the suit, as Section 52 of the Transfer of Property Act requires that the right to immovable property must be

directly and specifically in question. But it is doubtful whether it could be affirmed in all cases that an immovable property is not the subject-matter

of a particular suit merely because the doctrine of lis pendens could not be invoked against a transferee pendente lite. In order to invoke the

doctrine of lis pendens, not only must the right to immovable property be directly and specifically in question in the suit, but the description of the

property in the pleadings must be sufficient to identify the property. But so far as the parties to the suit are concerned, the right in immovable

property forming the subject-matter of a suit could be dealt with under a compromise decree without the necessity of registration though the

property may not have been described sufficiently so as to affect the rights of third parties.

In the Full Bench decision in Singa Reddi v. Subba Reddi ILR (1915) Mad. 987, 986, the question that arose for consideration was whether

the subsequent suit was barred by the provisions of Order XXIII, Rule 1(3), CPC Code. It is clear from the decision in that case that where the

cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit

cannot be considered to have been brought in respect of the same subject-matter as the first suit. It is observed in that decision that the terms

subject-matter and the same matter which occurred in the corresponding Section 373 of the old Code have not been defined, and must be

construed strictly in a penal provision of the character found in Order XXIII, Rule 1(3), CPC Code. Thus in invoking Order XXIII, Rule 1(3),

CPC Code, it is necessary to decide the identity of the subject-matter in the two suits. But in the present case we are merely concerned with the

question whether the subject-matter of the suit relates to immovable property in question the above distinction is evident from the following passage

in the above decision:

Without attempting an exhaustive definition of all that may be included in the term ""subject-matter"" we are of opinion that where, as in the present

case, the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the

second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit.

This is also clear from the following passage in Gopal Chandra Bannerjee v. Purna Chandra Banerjee (1898) 4 C.W.N. 110, 112, relied on in the

above Full Bench decision:

Can it then be said that the present suit, which asks for a decree for possession by reason of dispossession having taken place subsequent to the

withdrawal of the former suit, is a suit for the same matter as the former suit, which asked only for partition on the ground of joint possession being

inconvenient? We are of opinion that the question must be answered in the negative. The mere fact of two suits being in respect of the same

property would not be sufficient to make the latter suit one for the same matter as the former, when the state of facts leading to the two suits and

the reliefs claimed under them are different.

The question whether the suit properties formed the subject-matter of Civil Suit No. 165 of 1941, on the file of this Court, has to be ascertained

on a proper construction of the pleadings in that suit. Thus in Ramdas v. Jagarnath Prasad AIR 1960 Pat. 170, it has been held that the question

whether a particular term of a compromise relates to the subject-matter of the suit is obviously a question to be answered on the frame of the

particular suit, the relief claimed in the suit and the matters arising for decision on the pleadings of the parties. It is clear from the decision that

where the compromise is really an adjustment of the rights and differences in respect of all matters in dispute between the parties and the

compromise purports to be a final settlement and adjustment of these disputes on a fair and satisfactory basis acceptable to all, it must be held to

relate to the suit. Bearing the above principles in mind, we shall proceed to construe the relevant terms in the plaint in Civil Suit No. 165 of 1941,

on the file of this Court.

Exhibit A-4 is a certified copy of the plaint in Civil Suit No. 165 of 1941, on the file of this Court. Ameena Bi, the first Plaintiff in this suit, and

also the first Plaintiff in the earlier suit, is the widow of one Mohamed Ghouse Marcair. The Plaintiffs in that suit as well as in this suit are the legal

representatives claiming the estate of Mohamed Ghouse Marcair. Nur Mohamed Marcair, the first Defendant in that suit, was the brother of

Mohamed Ghouse Marcair and he died during the pendency of that suit. Defendants 1 to 4 in this suit are his legal representatives and they were

also Defendants in the earlier suit. Mohamed Ghouse Marcair had lungi business. He carried on the business at Portonovo, Madras, Singapore and

other places. The claim of the first Plaintiff Ameena Bi is that her funds were utilised by her husband for the business and that Nur Mohamed

Marcair was only one of the agents employed in the business, though the business at Singapore was conducted in his name. In respect of her

individual claim the first Plaintiff Ameena Bi claimed a preferential charge on the assets of the firm, in paragraph 15 of the plaint, in Civil Suit No.

165 of 1941, on the file of this Court. In paragraph 16 of that plaint, it is specifically alleged that the deceased Mohamed. Ghouse Marcair had left

landed properties of his own purchased out of the earnings of the above said business at Portonovo. It is specifically stated in that paragraph that

the suit has been filed to recover the assets of the business conducted by Mohamed Ghouse Marcair at Portonovo, Singapore, Madras and other

places from the Defendant Nur Mohamed Marcair, who is an interloper and who fraudulently set up a right of ownership in himself to the assets of

the business conducted by Mohamed Ghouse Marcair. In paragraph 21 of the plaint in Civil Suit No. 165 of 1941, on the file of this Court, the

Plaintiffs have reserved the right to recover possession of the properties in Portonovo which includes the suit properties, as the said properties

were outside the jurisdiction of this Court. The prayer in paragraph 27(a) of the plaint in that suit was for a declaration that the business conducted

by Mohamed Ghouse Marcair in several places belong to the Plaintiffs and that the Defendant Nur Mohamed Marcair had no right to the same. In

paragraph 27(b) of the said plaint there is a prayer that the Defendant Nur Mohamed Marcair be directed to deliver possession of all the account

books, records, correspondence, papers and all the assets at the various places mentioned above to the Plaintiffs. In paragraph 27(e) of the said

plaint there is a prayer for an injunction restraining the Defendant Nur Mohamed Marcair from dealing with any of the assets of the business at the

several places. Nur Mohamed Marcair contested the suit, but he died during the pendency of the suit. Defendants 1 to 4 in the present suit were

added as his legal representatives. The suit ended in a compromise evidenced by exhibit A-3. It is clear from the compromise that the parties

agreed that each of the brothers was entitled to a moiety of the business. The heirs of Nur Mohamed Marcair agreed to pay Rs. 14,000 under the

terms of the compromise and they secured the same by a charge on the suit properties.

The learned Principal Subordinate Judge has on a consideration of the several averments in the plaint in Original Suit No. 165 of 1941, of this

Court, rejected the contention of the contesting Defendants that the suit properties were not the subject-matter of the said suit. It is clear from the

pleading in the prior suit Civil Suit No. 165 of 1941, on the file of this Court that the dispute was really about the business conducted by the two

brothers Mohamed Ghouse Marcair and Nur Mohamed Marcair and the assets of the business. Finally the compromise was entered into by the

heirs of the two brothers. It is true the Plaintiffs in the earlier suit claimed that the business belonged exclusively to Mohamed Ghouse Marcair. But

the compromise finally recognised that the business belonged to both the brothers. The suit properties have not been specifically described in Civil

Suit No. 165 of 1941, on the file of this Court, But it is clear from the evidence of P.W. 2 Sheik Hellaji Sahib, the husband of the fifth Defendant,

who was working under his father-in-law in the business conducted at Portonovo from 1932, that his father-in-law purchased properties in

Portonovo and other places from the profits of the lungi business and that Civil Suit No. 165 of 1941, on the file of this Court was filed by the legal

representatives of his father-in-law Mohamed Ghouse Marcair for an injunction restraining the alienation of the said properties. The assets of the

business which included the suit properties could have been specifically mentioned in the plaint in the prior suit Civil Suit No. 165 of 1941, on the

file of this Court. The fact that the Plaintiffs reserved their right to sue for possession of the suit properties is no doubt a circumstance to be

considered in deciding whether the suit properties formed the subject matter of the prior suit. But in paragraph 27(e) of the plaint in the prior suit

the Plaintiffs have prayed for an injunction restraining the Defendant Nur Mohamed Marcair from dealing with any of the assets of the business at

the several places of business or trade in his own name, or in the name of any other with the trade mark MG.N., etc. In fact in paragraph 27(b) of

the plaint in the prior suit the Plaintiffs have prayed for delivery of possession of the assets of the business at the various places. The assets of the

business included the suit properties at Portonovo. It could not be denied that the assets of the business about which rival claims were put forward

in the prior suit formed the subject-matter of that suit and that they included the suit properties.

In Rautmal Baid Oswal and Another Vs. Rameshwar Lal Somani and Others, the question that arose for consideration was whether a

compromise entered into in a suit for dissolution of partnership and for accounts required registration inasmuch as it comprised rice and oil mills

which were immovable properties. It was held in that decision that the subject-matter of the compromise was not outside the scope of the suit and

the consent decree did not require registration. The following passage in that judgment is relevant for the present case:

The suit was a suit for dissolution of partnership and for accounts. It has been conceded before us on behalf of the parties, as also by the learned

Government Pleader who appeared for the State of Bihar that the machinery, etc., were part of the assets of the partnership business. Therefore,

the property which was the subject-matter of the compromise was not outside the scope of the suit. That being the position, Clause (vi) of Sub-

section (2) of Section 17 of the Registration Act clearly applied, and the learned Subordinate Judge had no jurisdiction to ask for registering

charges in the shape of court-fees, etc.

The fact that the Plaintiffs in Civil Suit No. 165 of 1941, on the file of this Court claimed exclusive title to the business and assets cannot also

affect the construction of the terms of the compromise decree creating a charge over the suit properties as one relating to the subject-matter of the

suit. We have already referred to the decision in Ramdas v. Jagarnath Prasad AIR 1960 Pat. 170 as to the test to determine whether a particular

term of compromise decree relates to the subject matter of a suit and it is unnecessary to repeat the same. It related to a claim by the Plaintiff in a

partition suit, who put forward exclusive title to plot No. 2240, but sought a decree for partition with regard to other properties. In the compromise

decree in that suit there was an agreement between the parties that plot No. 2240 be exclusively allotted to the Plaintiff. It was held in that decision

that since the title of the Plaintiff to plot No. 2240 was taken as part of the consideration for the compromise entered into between all the parties

and since it was an integral part of the compromise the title to plot No. 2240 was within the scope of the partition suit and the decree was

operative even with regard to plot No. 2240 even in the absence of registration.

We are unable to accept the contention of Sri Champakesa Iyengar that as the suit was dismissed out of Court as withdrawn in pursuance of

the memorandum of compromise, there was really no charge created by the decree of this Court. The second Respondent filed Civil Miscellaneous

Petition No. 11492 of 1969 and we called for the original of the Judge''s Summons in Application No. 333 of 1947, in Civil Suit No. 165 of

1941, on the file of this Court. The Judge''s Summons were taken out by the Plaintiffs to call upon the Defendants to show cause why the

memorandum of compromise entered into should not be directed to be filed into Courts why leave should not be granted to the minor Plaintiffs to

enter into the said compromise and why the compromise entered into should not be accorded and such other order or orders as the Court may

deem fit should not be passed. It is clear from the decree that the Court found that the terms of the memorandum of compromise are beneficial to

the minor Plaintiffs and granted leave to the next friend to enter into the compromise and sanctioned the compromise. The first paragraph of the

operative portion of the decree that this suit do stand dismissed out of this Court as withdrawn cannot be construed apart from the other clauses of

the compromise decree. The suit was dismissed as withdrawn on account of the memorandum of compromise sanctioned and made part of the

decree. In Sankaravelu Pillay v. Muthuswamy Pillay 29 M.L.J. 779 a Bench of this Court held that the compromise did not require registration, the

Court having sanctioned the compromise on behalf of the minor Defendant and practically incorporated the terms of the compromise in the decree

though the operative part of the decree only purported to dismiss the suit.

For the foregoing reasons, we see no ground to differ from the finding of the learned Principal Subordinate Judge that the charge created over

the suit properties under the terms of the compromise recorded in Civil Suit No. 165 of 1941, on the file of this Court does not require registration

as the suit properties really formed the partnership assets of the business and were the subject-matter of the said suit.

Sri T.S. Ragahavachari appearing for the contesting Respondents Plaintiffs relied on the Judge''s Summons in Application No. 333 of 1947, in

Civil Suit No. 165 of 1941, on the file of this Court and the order on the same which finally resulted in the compromise decree as an order in a

proceeding within the meaning of Section 17(2)(vi) of the Registration Act, and urged that such an order did not require registration. He relied on

the decision of Venkatasubba Rao, J. in Govindaswami Mudaliar v. Rasu Mudaliar (1936) 68 M.L.J. 41 in support of the said contention. In that

case the suit was for a money decree and an application was made for attachment before judgment of certain immovable property and that

application was disposed of along with the suit by an order of dismissal, in view of the compromise decree in the suit creating a charge for the

money claim on the attached properties. It was held in the decision that the consent decree should be deemed to have been as much a decree in

the suit as an order in the petition, that the use of the word dismissed conveyed no more than that the petition had been disposed of by the decree

made in the suit, that the application for attachment was proceeding within the meaning of Section 17(2)(vi) of the Registration Act and that,

therefore, the property in question was the subject-matter of a proceeding within the meaning of the said section and that the consent order was

exempt from registration. It is observed in that decision that there is no reason why the word proceeding should be understood in the restricted

sense, as referring only to proceedings in original matters in the nature of suits, such as proceedings in probate and guardianship. Though this

decision was followed by a single Judge of the Bombay High Court in Krishna Hukumchand v. Madhav Dathatreya ILR 1938 Bom. 738 the latter

decision was subsequently overruled in the Bench decision in Chhotibai Daulatram Marwadi Vs. Mansukhlal Jasraj, . Beaumont C.J., who

delivered the judgment, in the Bench decision has pointed out how the decision in Govindaswami Mudaliar v. Rasu Mudaliar (1934) 68 M.L.J. 41

was wrongly decided. Mulla in The Indian Registration Act, seventh edition at page 94, has referred to the above decisions and stated that

in circumstances similar to those stated above, the decree would require registration and if not registered would be inadmissible in evidence

Though the decision of VENKATASUBBA RAO J., in Govindaswami Mudaliar v. Rasu Mudaliar (1934) 68 M.L.J. 41 is of doubtful authority, it

is not necessary to overrule it, as it can be clearly distinguished on the facts of the present case. There was no application for attachment before

judgment in the present case unlike in the above case. If the contention of the learned Advocate for the contesting Respondents-Plaintiffs is

accepted, it would have the effect of dispensing with the registration of every compromise decree involving rights to immovable property though the

said property is not the subject matter of the suit as such compromise decrees are generally passed either on Judge''s Summons on the original side

of this Court, or in pursuance of orders on Civil Miscellaneous Petitions in the mofussil and sanction for such compromise is obtained in every case

where a minor is involved. In this connection Sri T.S. Raghavachari relied on the decision in Pichai Pillai Udayan Vs. Subbaraya Pillai (died) and

Another, where it was held that the orders passed by the Magistrate in the proceedings u/s 145 Code of Criminal Procedure should be taken to

incorporate the statements of parties as the word lodge used by the Magistrate conveyed the usual meaning of a deposit of a formal document of

information and such an order of Court was exempted from registration without any qualification before the amendment of 1929 and being

admissible in evidence could be relied upon by the Plaintiff in support of this claim on the allegation that a certain mortgage or charge was created

in his favour in consequence of certain statements and proceedings in a Criminal Court on a complaint preferred by the Defendant against him u/s

145 Criminal Procedure Code. This decision can hardly be invoked after the amendment of Section 17(2)(vi) of the Registration Act in 1929. For

the foregoing reasons, we are unable to uphold the Contention urged by Sri T.S. Raghavachari that the compromise decree does not require

registration solely on the ground that it is one passed in pursuance of the order on the Judge''s Summons irrespective of the fact whether the

immovable property over which a charge was created formed the subject matter of the suit or not.

The contention of Sri T.S. Raghavachari that the compromise between the parties could be upheld as a family arrangement and it does not,

therefore, require registration cannot also be accepted for the reason that it is embodied in a decree. It is clear from the Full Bench decision in Mt.

Dasodia Vs. Gaya Pd. minor through Sadho Ram, relied on by him, that though a binding family arrangement dealing with immovable property of

the value of Rs. 100 can be made orally such an arrangement if reduced to the form of a document and the document is not registered, the absence

of registration will make the document inadmissible in evidence and is fatal to proof of the arrangement indicated in the document. The earlier Full

Bench decisions in Ram Gopal v. Tulshi Ram ILR (1928) All. 79 and in Mt. Mahadei Kunwar Vs. Padarath Chaube and Another are relied on in

the above decision.

In view of our finding that the charge created in favour of the Plaintiffs by virtue of the compromise in Civil Suit No. 165 of 1941, on the file of

this Court does not require registration and that the said charge could be enforced in this suit, it is really unnecessary to consider the alternative

claim for a money decree. But we are unable to agree with the reasoning of the learned Principal Subordinate Judge for negativing the plea of the

Plaintiffs that the suit could be filed within three years of Plaintiffs 8 and 9 attaining majority. It is clear from the evidence in this case that the 8th

Plaintiff attained majority within three years prior to the suit and the 9th Plaintiff continued to be a minor even when the suit was filed. The 8th and

9th Plaintiffs in the suit were minor Plaintiffs 10 and 12 in Civil Suit No. 165 of 1941, on the file of this Court, and they were represented by their

father Syed Ahmed Marcair, who is also a Plaintiff in both the suits. The earlier Civil Suit No. 165 of 1941, on the file of this Court was filed by

the heirs of Mohammed Ghouse Marcair. But under the terms of the compromise, the Plaintiffs were jointly entitled to the sum of Rs. 14,000 with

a charge on the suit properties. Irrespective of the question whether in the absence of registration there could be a valid charge by virtue of the

terms of the compromise, there was a joint debt in favour of the Plaintiffs.

The main question for consideration in deciding the plea of limitation is whether Syed Ahmed Marcair, the father of Plaintiffs 8 and 9 who was

a co-decree holder, could give a valid discharge. In Ganesha Row v. Tuljram Row ILR (1913) Mad. 295 (P.C.) the Privy Council had to consider

the validity of a compromise made by the father for himself and on behalf of his minor son in a prior suit for partition, without having obtained the

leave of the Court to enter into the compromise on behalf of the minor son who was a party to the suit. The Privy Council held that the powers of

the father were controlled by the provisions of Section 462 of the Registration Procedure (Act XIV of 1882), corresponding to order XXXII Rule

6 CPC of 1908, and that he is debarred from compromising as the next friend or guardian ad litem, without the leave of the Court, even though he

can do so before suit in his capacity as father or managing member. It is clear from Section 362 of Mulla''s Principles of Mohamedan Law,

sixteenth edition, at page 332, that the powers of alienation of immovable property by a Mohammadan father as a legal guardian are limited. But it

is unnecessary to consider the same as the powers of a Mohamadan father as guardian ad litem in a suit are governed by the provisions of Order

XXXII, Rule 6, CPC Code. The Privy Council observed in the above decision that they considered it to be clear that when a father or managing

member of a Hindu joint family is himself 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 and to hold otherwise would be to defeat the object of the enactment. In Letchmana Chetty v. Subbiah Chetty ILR (1924) Mad. 920 a

Bench of this Court applied the above ruling of the Privy Council and held that the first part of Section 7 of the Limitation Act cannot apply to the

facts of that case, which are briefly as follows. A Hindu father and his three minor sons represented by him as their next friend, obtained a joint

decree on the 16th October 1913 the former died two months after decree without filing an application to execute it; the eldest son, who attained

majority at the end of December 1914, applied for execution on the 3rd December 1917 within three years of his majority but more than three

years after the decree. It was contended that the application was barred by limitation. It was held; that as the father was the next friend of his minor

son in the suit and in the decree, he was not, during his lifetime, in a position to give a legal and valid discharge of the decree without leave of the

Court obtained under Order 32 Rule 6 of the CPC and that as the father was not competent to give a valid discharge during his lifetime, the time

for making an application for execution of the decree did not begin to run as against any of the joint decree-holders until their respective disabilities

had ceased and that the application was not barred by limitation. It is clear from page 150 of U.N. Mitra''s Law of Limitation and Prescription,

eighth edition, volume I, that if at the initial starting point some of the joint decree-holders are under disability limitation will not run until all are freed

from disability. Where one of the joint decree-holders is a minor and the others are not competent to give a valid discharge without his

concurrence, time does not run against any of them till the attaining of majority by the minor. This principle is well-established and it is sufficient to

refer to the decision in Satya Narayan Banerji v. Kalyani Prasad Singh Deo ILR 1946 Cal. 45. In Ahinsa Bibi v. Abdul Kader Saheb ILR (1901)

Mad. 26, 38 the effect of the combined operation of Sections7 and 8 of the Limitation Act of 1908, has been considered and dealt with in the

following passage:

The combined operation of Sections 7 and 8 in cases in which the right of suit resides jointly in a plurality of persons is, in my opinion as follows (a)

such suit cannot be barred in part, in respect of some and not barred in part, in respect of the others; (b) if any one of several joint creditors or

claimants is under a disability and a full discharge could be given without his concurrence by all or any of the other joint creditors or claimants, the

suit will be governed by the ordinary law of limitation and time will run against all; (c) but where no such discharge can be given, time will not run

against any of them, until all have ceased to be under disability; (d) if all were affected by disability, time will not run against any of them, until all

have ceased to be under disability unless one of them, who, in the meanwhile, has ceased to be under disability, becomes capable of giving a

complete discharge without the concurrence of the others, in which latter case, time will run against all from the time when one of them has thus

become capable of giving such discharge.

It is clear from the decision in Gulam Goss v. Shriram Pandurang ILR (1918) 43 Bom. 487 that, where out of several persons jointly entitled to

sue, one is under disability and a discharge cannot be given in respect of the cause of action by any other of them, time will not run until the

disability has ceased. It was held in that decision that the suit having been brought within three years of the date when the youngest Plaintiff attained

majority it was not barred by limitation u/s 7 of the limitation Act because the right to redeem was indivisible and neither of the Plaintiffs was

qualified to discharge or release the equity of redemption. It is needless for us to repeat that it is only in a case where a co-decree-holder or co-

creditor can give a valid discharge that Section 7 of the Limitation Act does not extend the period of limitation.

Mr. Champakesa Iyengar urged that the claims of Plaintiffs 8 and 9 alone would be saved by virtue of Section 6 of the Limitation Act. The trial

Court has also observed that if the present suit is maintainable when the ninth Plaintiff still continues to be a minor and that if the Plaintiffs could now

give a valid discharge even within 3 years. We have already pointed out that the adult Plaintiffs cannot give a valid discharge in respect of the claim

of the minor Plaintiffs. It is clear from the decision in Krishna Raju v. Ayyappa Chettiar (1955) 2 M.L.J. 456 that the benefit of Section 6 of the

Limitation Act is not limited to the period after the cessation of the disability, but applies also to the period during which disability exists and that

persons under disability are not forbidden to sue or apply by their next friend before the cessation of disability. It is pointed out in that decision that

the next friend may sue or apply at any time during the continuance of the disability, whether the ordinary period of limitation has already expired or

not. In view of this decision, the observations of the learned Principal Subordinate Judge are incorrect. As we have already pointed out, the main

question to be considered in deciding the plea of limitation is whether the first part or the second part of Section 7 of the Limitation Act applies and

once we find that the latter part of Section 7 of the Limitation Act applies, the claim of all the Plaintiffs is saved from the bar of limitation so long as

there is any Plaintiff who is under a disability.

For the foregoing reasons we find that even if the Plaintiffs cannot get a charge decree on the strength of the prior compromise in Civil Suit No.

165 of 1941, on the file of this Court, they will certainly be entitled to obtain a simple money decree for the amount claimed in the suit. The

personal covenant to pay found in the compromise is clearly separable from the subsequent clause creating a charge over the suit properties and

hence, even if the charge created in the compromise cannot be enforced for want of registration, the Plaintiffs can sue to recover the amount due

under the personal covenant. But it is really unnecessary to pursue this matter further in view of our agreeing with the trial Court that the suit

properties formed the subject-matter of the prior suit Civil Suit No. 165 of 1941, on the file of this Court.

The decree and judgment of the trial Court are correct and they are confirmed and the appeal is dismissed with costs.