Kolandavel, Goundar and Another vs Chinnappan alias Nachiappa Goundan and Others

Natesan, J.—This second appeal has been preferred by the Plaintiffs whose suit for partition and separate possession of their 2/3rd share in

the suit properties has been dismissed by the lower appellate Court on the ground of limitation, reversing the decree in their favour by the trial

Court. The suit properties, about 3 acres 75 cents of agricultural lands, admittedly belonged to their father, Kailasa Kandar who died in April

1948. The Plaintiffs and the 3rd Defendant are his sons, the 4th Defendant being the widow of Kailasa Kandar. Kailasa Kandar executed a deed

of sale of the suit properties in favour of the second Defendant in the suit, the sale purporting to be for himself and as guardian of his minor sons,

the Plaintiffs and third Defendant. This sale was on the 10th of February 1940, and is evidenced by a registration copy of the sale deed (exhibit B-

1). The second Defendant, in his turn, sold the properties to the first Defendant in the suit under exhibit B-2 on 17th August 1942, and it is now the

concluded finding of fact that possession passed from, the father to the alienee (first Defendant) on 17th August 1942. Both the Courts below have

concurrently found that the alienations by the father to the 2nd Defendant under the original of exhibit B-1 and by the second Defendant to the first

Defendant under exhibit B-2 are not valid and binding on the Plaintiffs. While on this finding the trial Court decreed the suit and granted a

preliminary decree for partition, negativing the plea of limitation, the appellate Court has upheld the contention of the contesting Defendants that the

suit is barred by limitation.

There is no dispute that the article of the Limitation Act which is applicable is Article 126. Article 126 provides for a period of twelve years

from the time when the alienee takes possession of the property. The cause of action arises with the passing of possession. In this case the first

Plaintiff was born in 1928, the second Plaintiff in 1931, and the 3rd Defendant on 13th August 1937. Reliance is placed by the Plaintiffs on

Sections 6 and 7 of the Limitation Act. The suit was filed on 9th January 1958, and it is contended that the twelve year period, in view of the

minority of the sons, should be counted from the date when the youngest of the sons, that is, the third Defendant, became major. Alternatively it is

contended that the first Plaintiff became manager of his family only in April 1948, on the death of his father, when only he was competent to give

discharge on behalf of his brothers also, that, therefore, the time would commence to run against all of them only from April 1948, and that the

Plaintiffs are entitled to the period of twelve years from April 1948. This contention ignores Section 8 of the Limitation Act. Section 8 provides:

Nothing in Section 6 or in Section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from

the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or application made.

Learned Counsel for the Appellants contend that Section 8 provides a limitation in cases of cessation of the disability, and that incapacity to give

discharge is not a, disability contemplated u/s 8. But this interpretation I overlooks that Section 7 only lays down conditions under which the

disability j of one of the joint Plaintiffs or Applicants shall or shall not entitle any of them to the exemption to which the former, if he were a sole

Plaintiff or sole Applicant, would be entitled. Section 7 only supplements Section 6 of the Act, and the three sections should be read together. As

summarized in Mitra''e Law of Limitation and Prescription, volume I, seventh edition, at page 101:

The law allows the maximum period of three years from the statutable cause of action or the full period from the ordinary starting point of limitation,

whichever is more advantageous to the Plaintiff. A person under disability may institute a suit within the name period after the disability has ceased

as he would otherwise have been allowed under the first schedule but subject to the proviso that the time shall not in any case be extended for

more than three years from the cessation of the disability.

It is plain, on a reading of Sections 6, 7 and 8, that Section 8 imposes a limitation on the concession provided under Sections 6 and 7 to a

maximum of three years after cessation of the disability.

In this case, the first Plaintiff became manager of the family in April 1948 on the death of his father. He had become major in 1946, and the

second Plaintiff was a major in 1949. The first Plaintiff as manager was even in 1948 competent under the personal law to give a valid discharge on

behalf of his brothers without their concurrence as required u/s 7 of the Limitation Act. He should, therefore, in any event, have filed the suit within

three years from the death of his father, when he became manager. It is in evidence in this case that, so far as the third Defendant is concerned, he

has relinquished his interest in favour of the first and second Defendants but that does not affect the position. In Doraiswami Serumadan v.

Nondisami Saluvan ILR (1912) mad. 118 (F.B.) it was held that, under Sections 7 and 8 and Article 44 of the Limitation Act (XV of 1877), a suit

brought by two brothers of an undivided Hindu family to set aside an alienation by their mother more than three years after the elder of the two

sons became a major, was barred by limitation not only as regards the elder brother''s share but also in respect of the younger brother''s, even

though the younger brother had attained majority within three years prior to the institution of the suit. In Karan Singh v. Musammat Tetar Kuer ILR

(1937) Pat. 422 (F.B.) the Plaintiffs, two brothers Karan Singh and Charan Singh, claimed relief with reference to the property alienated by their

mother on the ground that the alienation was not for any legal necessity and consequently, not binding on them. At page 439 it is observed:

Section 7 dearly governs the case of persons jointly entitled to institute suit and it provides that if any one of such persons is under a disability and

none of the other persons could give a discharge without the concurrence of the person under disability, time will not run as against any of them

until the disability of the one has ceased or any one of them becomes capable of giving a discharge. If the position is that any one of such persons is

capable of giving a die-charge then time will run against them all. In the case before us Karan Singh (Plaintiff No. 1) attained majority more than

three years before the institution of the suit, and it has also been found that he was the karta of the Plaintiffs'' family. The Plaintiffs action in the

present case will be governed by the provisions of Section 7 of the Indian Limitation Act. The question whether Karan Singh could or could not

give a valid discharge will depend upon the law which governs him and his brother.

In Sri Gajapati Narasimha Deo Garu and Others Vs. Sri Gajapati Krishnachendra Deo Garu and Another, the suit was to enforce a partition of

partible zamindari by the Plaintiffs who were found to have been excluded from possession. The article of the Limitation Act applicable to the case

was Article 127. The exclusion was even in 1898. The first Plaintiff had attained majority in 1909. It is observed at page 265:

I am also of opinion that Section 7 of the Limitation Act applies to this case. The 1st Plaintiff attained majority in 1909, and then, as the eldest

member of the family, supposing he was a member of a joint Hindu family as claimed, he could give a discharge on behalf of himsel and his younger

brother, the 2nd Plaintiff. I do not think that the application of Section 7 is excluded because in this suit the Plaintiffs have asked for partition. They

had been excluded from their family property, and it was open to the 1st Plaintiff to have instituted a suit to recover the property for himself and his

younger brother, the 2nd Plaintiff. A Full Bench ruling of this Court has held that Section 7 is applicable to such cases and therefore the non-failure

of the 1st Plaintiff to sue within three years after attaining majority would be sufficient in itself to bar the suit Doraisami Serumadan v. Nondisami

Suluvan ILR (1912) mad. 118 (F.B.) and Soundarajan, minor by next friend Krishna Pillai alias Krishnaswami Pillai Vs. Saravana Pillai and

Others, .

In Natarajan and Another Vs. Karumana Gounder and Others, where it was found on the facts that the father was no longer the managing

member and the next senior adult member was in fact in management, it was held that the failure of such next senior adult member to set aside the

alienation within three years of his attaining majority operated as a bar against the other junior members of the family. The entire case law on the

subject has been reviewed therein.

The Appellants sought, to get assistance for their contention, on the decision of the Privy Council in Jawahir Singh v. Udai Parkash ILR (1925)

All. 152, 1568 (P.C.). The sons of one Harbans Singh filed the suit which went up to the Judicial Committee, to recover possession of their share

in the village sold by their father. By the time the suit was brought, one of the sons was a major, and one of the questions mooted and considered in

the Courts in India was whether the suit was barred by reason of the elder of the two sons, Fateh Singh, having attained majority more than three

years prior to the institution of the suit. The High Court had negatived the plea of limitation and the Judicial Committee passed over the question of

limitation with the observation:

On the question of limitation their Lordships concur with the High Court.

A reference to the argument of Counsel before the Judicial Committee would show that learned Counsel, Mr. Dube, had conceded that the

father, Harbans Singh, was alive when the suit was brought, that Fateh Singh had not been the managing member, and that, therefore the failure of

Fateh Singh to institute a suit did not bar the suit in question. The distinction is clear. The father who made the alienation and who was the manager

of the joint family was alive and had been impleaded as a Defendant in the suit. In the circumstances, the elder of the three sons who had been

impleaded as a Defendant could not give a valid discharge. The case before the Privy Council and the entire case law has been reviewed in the

Division Bench decision of this Court in Parikaruppan Chettiar v. Alagappa Chettiar Appeal Suit No. 243 of 1947. In that case Satyanarayana

Rao J., has extracted the relevant portion of the judgment of the Allahabad High Court which went up in appeal to the Judicial Committee and it is

as follows:

The next question is that of limitation. The court below relying on a certain decision of the Madras High Court has found that because Fateh Singh,

the elder brother of the present Plaintiffs, could have instituted a suit contesting the whole of this alienation, and did not do so within three years of

his attaining majority, time had begun to run as against all the Plaintiffs from the date of Fateh Singh''s attaining majority and the suit when brought

was statute barred. The attention of the learned Subordinate Judge was not drawn to the decision of this Court in. Ganga Dayal v. Mani Earn ILR

(1908) All. 156 in which case a Bench of this Court refused to accept the view taken by the learned Judges in Madras and virtually held that in a

ease closely analogues to the present and really not so strong as the present case is, it could not be said that one brother could give a discharge of

the liability without the concurrence of the other brothers, in the sense in which that expression is used in Section 7 of the Indian Limitation Act No.

9 of 1908. This Bench has very recently hold in another suit in which an alienation by the father of a joint Hindu family was in question, that even

the ratification of the alienation in question by one of the sons after he had attained majority would not bar the right of a younger son to challenge

the same. We quoted good authority for that opinion. It is clear therefore that mere inaction on the part of Fateh Singh could not have an effect

greater than the actual ratification on his. part of the transfer made by his father. It could not, as a matter of law, extinguish the right of his younger

brothers to challenge this alienation, provided they did so within the period of limitation applicable to them individually that is to say, either within

12 years of the alienation itself, or within three years of their attaining majority. The present suit has been brought while one of the Plaintiffs is still a

minor and within throe years of the attainment of the majority by the elder of the two Plaintiffs. It is therefore within limitation.

As observed by Satyanarayana Rao J., if there is a manager capable of giving a discharge and if he did not institute a suit within the time

allowed by law, the suit instituted by the minor members within three years after their attaining majority would be barred.

The appeal, Appeal Suit No. 243 of 1947, was taken up in appeal to the Supreme Court vide AL. PR. Ranganathan Chettiar Vs. AL. PR.

AL. Periakaruppan Chettiar, but there was no occassion for the Lordships of the Supreme Court to decide the question of limitation.

The present case is an a fortiorari case where the youngest of the sons whose minority could be relied upon has in fact, released his interest in

favour of the alienees. The two Plaintiffs who have filed the suit became majors more than three years prior to the suit, and on a reading of Sections

6, 7 and 8 together, there is no room for doubt that the suit is barred by limitation.

In the result the second appeal fails and is dismissed with costs.

No leave.