Jandhyala Sreerama Sarma and Others vs Nimmagadda Krishnavenamma and Others

Bhimasankaram, J.—Our l earned brother Satyanarayana Rao, J., directed that this appeal should be posted before a Bench as it involves what he considered to be an important question of law.

The suit was filed by the Appellants who are the sons of late Jandhyala Satyanarayana to set aside certain alienations made by him as not binding on them. The trial Court found that the alienations are not binding on the Plaintiff''s but dismissed their suit as barred by time since it was filed more than 3 years after the 1st Plaintiff the eldest brother, had attained majority. The learned advocate for the Appellants raises the contention that even if the 1st Plaintiff is barred, the other Plaintiffs who are still minors are not barred. Our learned brother thought that the question deserved examination by a Bench.

Before we go into the question of law thus raised, we may at the outset dispose of the contention of the learned Counsel for the Appellants in regard to the lower Court''s finding of fact that the suit was not filed within 3 years of the 1st Plaintiff''s attainment of majority. The plaint case is that 1st Plaintiff was born on 9th September, 1926. In proof of this fact, reliance was placed on Exhibit A-6, a certified copy of an extract from the birth register relating to the birth of the 1st Plaintiff and Exhibit A-2 which is a portion of a rough note-book alleged to contain the 1st Plaintiff''s horoscope.

Now, columns 2 and 3 of Exhibit A-6 are headed date of registration'' and ''date of birth''. The date 9th September, 1926, appears under column 2. while there is no date at all under column 3. Again, the name of the child is given as Srirama Sarma while the plaint describes the 1st Plaintiff as Srirama Sarma alias Subbarao. The learned Subordinate Judge held that as the column intended for the date of the birth is'' blank, the document serves no useful purpose. It was contended for the Plaintiffs in the lower Court that the Village Munsif, who was maintaining the register of births of which Exhibit A-6 was an extract, was in the habit of not filling the column intended for the date of birth but filling up only the column entitled ''date of registration'' and in the circumstances the entry should be treated as relating to the date of birth and not to the date of registration.

The learned Subordinate Judge could not of course accept such an argument and rightly rejected it. An attempt was made in the lower Court to call for the complete register containing the entry Exhibit A-6. But the learned Subordinate judge declined to send for it. An application what made to our learned brother'' for its production as additional evidence and lie having acceded to it, the register is now before us. We are however satisfied that the register throws no additional light. We notice however one curious feature. Until the date of 14th August, 1926, the register has only one column entitled date'' and naturally because it is a register of births, the ''date'' must refer to the ''date of birth''. But after 14th August 1926, a line is drawn splitting column 3 into two, making it columns 3 and 4 and renumbering the following columns accordingly. The former column 2 is headed ''date of registration'' and the new column 3 is headed ''date of birth''.

The entry now in question appears on the page on which this procedure was adopted. But curiously enough the new procedure was followed only from 14th August, 1926 to 29th August, 1926 and apparently never since. Even after the new procedure was given up, the remaining dates that occur on that page are all only in column 2 while no dates appear under the new column 3. There are five such single entries on that page. In no case does the date appearing under the date of registration extend into the next column so that while no dates appear under the date of birth all these five dates are only inserted in the column headed ''date of registration''. It is just possible that the division into these two columns was only adopted for a few days and then given up. But we have no means of ascertaining whether these dates which appear under the second column are dates of registration or dates of birth. We cannot therefore say that Exhibit A-6 affords evidence that the date of birth of the 1st Plaintiff is 9th September, 1926.

The other piece of evidence is, as already noticed Exhibit A-2. In regard to this, the case of the Plaintiffs is that Sobhanadri Sastry, the natural father of their father (who was adopted into Anr. family) was a well-known astrologer and that he was drawing up the horoscopes of his grand-children in the note-book a portion of which is marked as Exhibit A-2. Sobhanadri Sastry having died, Exhibit A-2 is sought to be proved by the evidence of P. Ws. 1 and 2. P. W. 2 is the mother of the Plaintiffs and P. W. 1 her father. P. W. 1 has produced the note-book claiming that it has been with him, presumably because it contained the horoscope of some of his grand-children. He says that Exhibit A-2 was written by Sobhanadri Sastry about 15 days after the birth of the 1st Plaintiff. He also says that the portion marked Exhibit A-3 in the same book contains the horoscope of the 2nd Plaintiff and the portion marked Exhibit A-7 the horoscope of the 3rd Plaintiff. He has not however proved that the handwriting in the book is that of Sobhanadri Sastry. P. W. 2, the mother claims to have seen Sobhanadri Sastri writing the horoscope. But even she is unable to identify the hand-writing of Sobhanadri Sastry. Thus, there is no satisfactory evidence that Exhibit A-2 was prepared by Sobhanadri Sastry.

Apart from this, there are more formidable difficulties in the way of the Plaintiffs. It is admitted that the 1st Plaintiff''s birth was preceded by that of Anr. male child to his parents called Anjaneyulu. He is stated to have been born in 1924 and died when he was about 2 years old, according to P. W. 2, Exhibit A-2 describes however the 1st Plaintiff as the first son of Jandhyala Satyanarayana. Two mutually opposed explanations are given to get over this. One is that the page relating to the horoscope of Anjaneyulu was torn because ho had died a3 a child and the other (given by P. W. 2) is that Sobhanadri Sastri did not prepare the horoscope of her first son Anjaneyulu. Then there is also the intrinsic improbability that an orthodox Brahmin who is also an astrologer would have added the honorific ''garu'' and what is more would not have prefixed it with the blessing ''chiranjeevi''.

This seems to us clearly to militate against the suggestion that the horoscope was drawn up by Sobhanadri Sastry. For all these reasons we cannot hold that it has been established that the 1st Plaintiff was born on 9th September, 1926. It is admitted that, in that view, the suit is not proved to have been filed within 3 years of the attainment of the 1st Plaintiff''s majority and is barred against him.

The question then is whether the suit is also not barred against Ors. . It is true that Krishna-swami Naidu J., in Varada Pillai Vs. Sriramalu Reddiar and Another, (A) throws doubt upon the Ion line of decisions of the Madras High Court beginning with the Pull Bench decision in Doraisami Serumadan v. Nondisami Saluvan, ILR 38 Mad 118: (AIR 1915 Mad 1201) (B) holding that if the eldest member does riot file a suit within the period or limitation, to set aside his father''s alienation the right of the other members of the coparcenary to challenge it is barred. After quoting a passage from Mayne''s Hindu Law which doubted the correctness of the view that where several coparceners are entitled to set aside an alienation and the managing member is barred from bringing the suit, the other coparceners are also barred, the learned Judge proceeds to say:

If therefore the eldest member or the managing member has not filed a suit to set aside an alienation within the period of limitation provided by the law, the right of the other members of the coparcenary to challenge the alienations is not taken away. As pointed out by the learned commentator, the right to question the alienation arises in an individual member of the coparcenary not by virtue of his being a managing member but in his character as son and that individual right cannot be controlled by anything which the eldest or the managing member has done or has failed to do.

It appears to me that the correct and the reasonable view to be taken in such cases consistent with the principles of Hindu Law is that each son has an independent right to question the alienations irrespective of the fact or otherwise of the eldest or managing member ''having failed to ask the alienation to be set aside- within three years on his attaining majority.

The learned Judge states however that the question did not arise on the facts of the case before him.'' These observations are therefore statedly obiter dicta.

Mr. Venkatarama Sastry strongly founds himself also on the observations of Venkataramana Rao, J. in Vesireddi Palaehandrasekhara v. Lakshmi Narasimham, 1940 1 Mad LJ 820 at p. 827: (AIR 1940 Mad 691 at p. 095) (C) wherein the learned Judge referring to an earlier decision of a Bench of the Madras High Court in (Maddali) Visweswara Rao Vs. (Maddala) Suryarao and Others, (D) said:

They express an opinion that if before the after-born son is born, the sons in existence were to die, the right is lost to the after-born son though the right to set aside an alienation may be within the time from the date when the cause of action accrued to the sons in existence. This seems to be at page 513 where it stated that it is a right in every member of coparcenary for the time being and as long as that right in the coparcenary exists it would be immaterial whether he was alive on the date of the alienation or born, subsequently. Much may be said in favour of either view and it may be that the view expressed in Mayne''s- book Is sounder. The scope and effect of the Privy Council decision in AIR 1925 264 (Privy Council) (E) may require consideration.

These observations of the learned Judge are however on a different _ point altogether. In fact, the learned Judge was not dealing with the question of limitation. He was only dealing with the right of an after-born son to dispute an alienation made before his birth but at a time when his elder brOrs. were alive who could have disputed the alienation. His Lordship was dealing with the substantive right and not with the bar of limitation. Those remarks do not seem to us to have any bearing upon the present question.

The latest decision of the Madras High Court on the point is that contained in Devineni Subbarao Vs. Devineni Pattabhiramayya and Others, (F) which decided that in the case of a Hindu joint family a suit to set aside an alienation filed by the younger of two brOrs. within three years of his attaining majority would be barred by limitation if the elder brother, who was the manager and an adult, had failed to sue within three years of his attaining majority. Wads-worth, J. who delivered the judgment of the Bench made these observations at page 201 (of MLJ): (at p. 499 of AIR):

Tire law on the subject is now quite clear. The Full Bench in ILR 38 Mad 118: (AIR 1915 Mad 1201) (B) 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 Ayyangar and Others Vs. Srinivasa Raghava Ayyangar and Others, (G), there was some doubt whether this decision was good law in the light of the decision of the Privy Council in Jawahar Singh v. Udai Parkash, 50 Mad LJ 344: (AIR 1926 PC 16) (H) 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 Vs. Chokkapu Boddu and Another, (I) with which we are in entire agreement and a similar view was taken in Varada Bhaktavatsaludu and Another Vs. Damojipurapu Venkatanarasimha Rao (dead) and Others, (J). It seems to us well-established that although a suit by the younger of the brOrs. 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 manager of the family during the relevant period.

No decision of a Bench of the Madras High Court taking a view contrary to that expressed in Devineni Subbarao Vs. Devineni Pattabhiramayya and Others, (F), has been brought to our notice. We therefore think that it is too late in the day to try to disturb the authority, of a long line of decisions of the Madras High Court by which we are bound, whatever the views of the other High Courts may be.

Mr. Venkatarama Sastry argues that on the facts of the case there is no proof that the 1st Plaintiff was the manager though admittedly he is the seniormost brother. We cannot however allow him to raise this point for the first time because no such allegation has been made in the plaint which simply endeavours to steer clear of the bar of limitation by stating that the suit was filed within 3 years of the 1st Plaintiffs attainment of majority. The first sentence in paragraph 4 of the plaint is-as follows:

The 1st Plaintiff who is the eldest son of the late Satyanarayana, was born on 9th September, 1926 and this suit is filed within throe years of his attaining majority.

In the absence of a plea that he was not a manager, we must presume according to Hindu Law notions, that he was. We may, in this connection refer to the decision in Varada Bhaktavatsaludu and Another Vs. Damojipurapu Venkatanarasimha Rao (dead) and Others, (J; in which the learned Judges say:

Mr. Subbarao says that if the fourth Defendant really acted as manager of the family he was not prepared to dispute the capacity of the fourth Defendant to give a valid discharge of the Plaintiff''s claim but what lie contends is that it is not enough to show that the fourth Defendant has attained majority in 1927 but it must also be shown that as a fact he was acting as manager and the evidence in this case does not establish that fact. It seems to us that when there is am eldest member of a family, the presumption is that under the Hindu Law he is the manager of the family.

In this view, we cannot allow the Appellants to their alternative contention Unit the 1st Plaintiff was not the manager of the family and that therefore the other Plaintiff''s would not be barred by Section 7.

In the result, therefore; the appeal fails and is dismissed with costs. The Appellant will pay the Court-fee due to the Government on the Memorandum of Appeal.

The Application (C.M. P. 3653 of 1955) is dismissed.