Jaddu Padhi vs Chokkapu Boddu and Another

Jackson, J.—This appeal has been referred to a bench by Pandalai, J. The plaintiffs, two brothers, sued for a declaration that the sale

executed by their mother, defendant 2, to defendant 1 was not valid. It was found that plaintiff 1 had attained majority more than three years

before the suit was filed, and accordingly the District Munsif dismissed the suit. The District Judge confirmed the finding of fact and that is not now

disputed. In this Presidency it has been settled by the Pull Bench decision, Doraisami Sorumadan v. Nondisami Saluvan AIR 1915 Mad. 1201 that

in circumstances like the present, if one brother comes of age and allows three years to pass before suing, time has run against the younger brother

also. But the District Judge refused to follow this ruling, because of a Privy Council ruling in Jawahir Singh v. Udai Parkash AIR 1926 P.C. 16.

Hence the appeal.

In that case the two younger sons sued to set aside an alienation joining as defendants their father and their elder brother who bad allowed three

years to pass without suing. As the father was still living, this elder brother had never been manager of the family so as to be able to give a

discharge and on the facts, Section 7, Limitation Act, could not possibly apply. This was conceded by Mr. Dube who appeared for the appellant

alienee:

The father was alive when the suit was brought. Fateh Singh had not been managing member; it is conceded therefore that the failure of Fateh

Singh to bring a suit probably did not render the present suit barred. The sale was however valid...p. 153.

On p. 155 the High Court judgment and decree under appeal are summarised and then the judgment proceeds:

From this decree Jawahir Singh has appealed to His Majesty in Council. The same contentions that were urged in the High Court have been

advanced before the Board.

This cannot mean that Mr. Dube urged contentions about limitation for he had conceded the point. It can only refer, as clearly shown by the

subsequent paragraphs, to the fact that he still contended that the sale was valid. Its validity is discussed down to the bottom of p. 157 and then

there is the one short sentence ""on the question of limitation their Lordships concur with the High Court."" Upon this authority the reporter in the

Allahabad series has stated in the head-note, p. 152, that a suit brought by a younger son is not barred although the elder son attained majority

more than three years earlier and had taken no steps to question the alienation. No mention is made of the vital circumstance that the father was still

alive, and then the note proceeds ""semble Vigneswara v. Bapayya (1910) 16 Mad. 438 and Doraisami Sorumadan v. Nondisami Saluvan AIR

1915 Mad. 1201 disapproved."" But there was no reason to suppose that it was overruled. The Madras ruling proceeds apparently upon an

irrefragable line of, logic, and if the Judicial Committee detected a flaw in that line it would have set it forth in terms. The fatherless Hindu son

becomes manager in law and presumably manager in fact when he attains majority (cf. Mulla''s Principles of Hindu Law, Section 519), and as such

he is within the mischief of Section 7, Limitation Act. If the Judicial Committee held that he does not become the manager, or that as manager he

cannot by himself dispute the alienation, it would undoubtedly have so stated in terms The short sentence concurring with the High Court obviously

means no more than that what Mr. Dube conceded was agreed to - the suit was not barred by limitation. It is really more a question of fact than of

law. In Gangadayal v. Mani Ram (1911) 31 All. 156 which was relied upon by the High Court in the case under appeal in Jawahir Singh v. Udai

Parkash AIR 1926 P.C. 16 it is found on p. 160 that there is nothing in the present case to show that plaintiff 1 ever acted as manager, and that

being so it is not clear that he ever came within the terms of Section 7, Limitation Act. Similarly according to the facts in Jawahir Singh v. Uadi

Parkash AIR 1926 P.C. 16 the elder son was never manager prior to his filing the suit. Pandalai, J. obtained a copy of the judgment under appeal

in Jawahir Singh v. Udai Parkash AIR 1926 P.C. 16, but it does not carry the matter further. If the Privy Council laid down the law as set forth in

the head-note, it is clear without the aid of this judgment, and if, as we hold, that it merely affirmed Mr. Dube''s concession, then there is no need

to go into details.

It was finally urged upon us that holding this view we should call for a finding as to whether in fact the elder son ever assumed the management.

It is too late to raise that question now. In law he was entitled to be manager and there is nothing in the record to rebut the presumption that he

became manager. We agree with the District Munsif, and order that his decree be restored, reversing that of the District Judge. Costs to appellant

here and below. We may add that our view follows that in Surayya v. Subbamma AIR 1928 Mad. 42; Mannarswami Ayyar v. Ramaswami

Nayakan AIR 1929 Mad. 394; Luta Ram v. Shiv Ram AIR 1929 Lah. 14 and Murlidas v. Shivaram Sadasiv AIR 1929 Bom. 382.