Natarajan and Another vs Karumana Gounder and Others

Srinivasan, J.—The appellants are the plaintiffs. The suit Was filed in forma pauperis for partition after setting aside a sale deed executed on

14th June, 1943, by the father of the plaintiffs in favour of the third defendant in the suit and for past and future mesne profits. The plaint allegations

Were that the first defendant, the father, was leading an immoral life and that the third defendant, taking advantage of the father''s immorality,

obtained a sale deed from him. Besides being tainted by illegality and immorality, the sale was alleged to be devoid of consideration. It was also

claimed that the properties were sold for Rs. 2,900 while they were in fact worth much more than that amount.

First defendant is the father of the plaintiffs, and the second defendant is the elder brother of the plaintiffs. They remained ex parte in the suit.

The third defendant purchaser contended that the sale was for proper and adequate consideration and that it Was effected for the benefit of the

family besides being for the discharge of an antecedent debt. It was urged that the plaintiffs taking advantage of the rise in prices following the

Lower Bhavani Project have filed this suit. The principal contention of the third defendant was that the second defendant became the family

manager and as he failed to take any steps for setting aside the sale deed, the suit is barred by limitation.

The learned District Munsif who tried the suit accepted the contentions of the third defendant, that the sale transaction Was for valid purposes

and was binding on the plaintiffs. He further held that the second defendant, the elder brother of the plaintiffs, not having sued to set aside the sale

deed within the period provided by law, the suit by the younger brothers must fail even though it was brought within three years of the first plaintiff

attaining majority.

The plaintiffs appealed. The learned Subordinate Judge of Erode disagreed with the view taken by the lower Court that the sale was for

purposes binding upon the coparceners. He held that there was no justifiable necessity and the purpose of the sale being stated in the sale deed to

be for the purchase of other properties, in the absence of evidence to show there was need for the sale of the family properties and for the

purchase of other properties, it could not be held to be for binding purposes. On the question of limitation, however, the learned Subordinate

Judge agreed with the trial Court that since the second defendant was proved to have been the manager of the family during the relevant period

and since he failed to take any steps to set aside the sale deed, the bar of limitation operated even against his brothers, the plaintiffs. Accordingly,

the appeal Was dismissed.

The plaintiffs have now filed this Second Appeal. Their principal contention is that the Courts below have erred in their appreciation of the

correct legal position. It is urged that the second defendant, the eldest of the brothers, was not competent to give a discharge on behalf of the

plaintiffs and that he Was not the manager of the family and could not be manager of the family so long as the first defendant, the father, who was

entitled under the law to be the manager, was alive. The question that arises for consideration in this Second Appeal is accordingly whether the

claim of the plaintiffs is barred for the reason that their elder brother, the second defendant, failed to pursue the remedies open to him within three

years of his attaining majority.

It cannot be denied that the first defendant, the father , was the manager of the family at the time he executed the sale deed. It is unnecessary to

examine the question whether the sale Was supported by consideration and was for purposes binding upon the family. Though there is a difference

of opinion between the trial and the lower appellate Courts, this question Was not canvassed during the hearing of the arguments in this Second

Appeal and I may therefore take it that the finding of the lower appellate Court on this point is supported by adequate material and is not

challenged. Even assuming therefore that the sale would not be for purposes binding upon the junior members of the family the question arises

whether when the oldest of the sons, the second defendant, had failed to take any steps to have the sale set aside within three years of his attaining

majority, his younger brothers would be barred. Section 7 of the Limitation Act provides that:

Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under such disability and a

discharge can be given without the concurrence of such person, time will run against them all; but where 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 or until the

disability has ceased.

The disability contemplated in Section 7 is that referred to in Section 6 of the Act. It is common ground that at the time the sale deed was

executed, all the three sons of the first defendant, i.e., the second defendant and the two plaintiffs were minors. It would no doubt have been open

for any other person acting as the next friend of the minors to have instituted a suit for setting aside of the sale deed. That no such step was taken

would not affect the right of the minor sons. It was also open to the eldest of the sons, the second defendant, to have impeached the sale deed

when he ceased to be under the disability, that is, after he attained majority. It is conceded that he did not do so. But it is contended on behalf of

the appellants that so long as the father, the first defendant, was alive, he alone is capable of functioning as the manager of the family and that it was

not competent to the second defendant to give a discharge within the meaning of Section 7 of the Limitation Act. It is urged, therefore, that the right

of suit is individual to each of the sons and that the failure of the eldest sc n to move in the matter cannot destroy the right of the younger sons.

At this stage I may refer to the oral evidence in this regard. Even the first plaintiff stated in his evidence that the first and the second plaintiffs are

living with the second defendant, that the father, the first defendant, has not been taking care of the members of the family and that he has always

been leading an immoral life. He swore that his father used to. visit them only very infrequently and that ever since the death of his mother about

(sic) years ago, the father had ceased to look after the family. He swore also that he does not even know where the first defendant has been living.

A sister of the plaintiffs was married, but the father, the first defendant, did not choose to attend that marriage. According to first plaintiff, the

expenses connected with the marriage were contributed by other relations. He concluded by saying that the second defendant alone was

maintaining them. P.W. 2 who was an attester of the sale deed, swore that the marriage of a sister of the plaintiffs was conducted by the relations

and that the father , the first defendant, took no interest in the matter. D.W. 3 stated that the plaintiffs were living with the second defendant, their

elder brother, who was taking care of them. On this evidence, principally on the evidence of the first plaintiff himself, the Courts below reached the

conclusion that the first defendant was not looking after the family and had in fact completely disassociated himself with any act of management of

the family. Both the trial and the lower appellate Courts accordingly held that the mantle, of manager of the family fell on the shoulders of the

second defendant and that he was thus competent to give a discharge as the senior most adult member of the family, barring the father who had

ceased to be the manager. In so far as the conclusion that the father had practically severed himself from the family is concerned, I am in full

agreement with the conclusion reached by the Courts below. But, never the less, it has to be examined whether that would serve to clothe the

second defendant, the eldest son, with the authority of a manager of the family.

The mere circumstance that the father is alive is not sufficient to establish that notwithstanding the right which the Hindu Law confers upon him,

he cannot cease to be the manager of the family or that a junior member of the family cannot assume the right to manage. In C. Abdul Basith Sahib

Vs. Shanmughasundaram and Others, this question came up for consideration. The learned Judges pointed out that the manager of a Hindu family

occupies a position superior to that of other members in so far as he manages the family property or business or looks after the family interests on

behalf of the other members. Though this right of management comes to him by birth and is regulated by seniority, it is nevertheless terminable by

resignation and relinquishment and is not indefeasible. They observed at pages 517 and 518:

The father''s right to be the manager of the family is the survival of the patria potestas and he is in all cases naturally, and in the case of minor sons

necessarily, the manager of the joint family property. But in the asbsence of the father, or if he resigns, the management of the family property

devolves upon the eldest male member of the family provided he is not wanting in the necessary capacity to manage it. Where the seniormost

member is physically incompetent or, has resigned his office, even the junior member can be chosen as such manager. In other words, the position

of a Kartha which is acquired by birth and regulated by seniority, subject, of course, to. his capacity to act, is terminable by resignation or

relinquishment and is not indefeasible.

The learned Judges referred to Mudit v. Ranglal ILR (1902) Cal. 797 . In that case, a junior member of the family governed by the Mitakshara

school alienated immovable property belonging to the family. The suit was instituted for recovery of possession of that property, it being alleged

that it had been improperly and without authority alienated. The question that was posed by the learned Judges was whether the junior member

had the authority to bind the other members while he acted for the benefit of the family. They observed that the junior member had been put

forward as the managing member superseding other senior members of the family and that the senior members had in fact allowed him to deal with

the family property as of the power of these elder members as Karthas was gone. The junior members were thus held to be accredited agents of

the family, competent to alienate the property belonging to themselves and other members whenever the necessities of the family required such

alienation. The touchstone of the authority of the junior members was held to be necessity and if they acted as prudent owners borrowing for the

benefit of the family, the other members were bound by their acts. The learned Judges also referred to the Hindu Law texts which sanctioned

alienation by the junior members.

In Darasan Singh v. Parbu Singh ILR (1946) All. 130 a Bench of the Allahabad High Court observed that the normal condition of a joint Hindu

family was that the seniormost member of the family is the manager unless exceptional reasons are made out. The learned Judges referred to

Raghavachariar''s Hindu Law wherein it is stated that where the senior a most member is physically incompetent or has resigned his office, then the

junior member can be chosen as such manager. In Mahadev Shankar Lokhande Vs. Shankar Swamirao Lokhande, the Bombay High Court took

a like view with regard to acts of management by a junior member. They observe:

...and under the Hindu Law, if the manager ceases for some reason or other to act as such, it is open to the next senior member of the coparcenary

to act as such manager and any transaction made by such manager would be binding on all the members of the family including the person who

was managing the property before, As held by the Privy Council in Sheo Shankar Ram v. Jaddo Kunwar (1914) L.R. 41 IndAp 219 : ILR 36

All.383, the manager of a Hindu family so effectively represents all the members of the family that the whole family is bound....

From the above it should be fairly clear that the right of the Hindu father or manager is not sacrosanct to the extent of holding him capable of

continuing to be such even after it is found that he is either incompetent or incapable or that he in fact voluntarily relinquishes his responsibilities. In

the present case, it has been established beyond doubt even on the admissions of the first plaintiff himself that the father disassociated himself from

the family for more than ten years prior to suit and that he took no part in looking after the affairs of the family or the protection of the minor

members of the family. He did not even shoulder the responsibility of discharging one of his primary obligations as a father viz., the marriage of his

daughter. From these circumstances, the Courts below rightly held that the father was no longer the managing member and that the next senior

adult member of the family, the second defendant, was in fact in management.

It has been contended on behalf of the appellants that the decision of the Privy Council in AIR 1925 16 (Privy Council) has authoritatively

declared that notwithstanding that an elder son attaining majority more than three years prior to the suit and took no steps to question the alienation

effected by his father, the suit brought by the younger son within three years of his attaining majority to avoid the sale is not barred by limitation.

For the respondent, however, it is urged that this authority lays down no such absolute proposition and that it went upon the circumstances of the

case, it being conceded that the father was alive and was competent to manage the properties, a circumstance which would disentitle the junior

member to act as manager and render him capable of giving a discharge, It is pointed out that the concession was made by the counsel for the

appellants before their Lordships of the Privy Council that as the father was alive when the suit was brought, the eldest son was, not the managing

member and that his failure to bring a suit did not render the suit by the younger son barred. The Judicial Committee did not go into the question of

limitation, merely expressing the opinion that they agreed with the High Court. It is urged for the respondent that the authority of this Court in

Domaiwami Serumadan v. Nondisami Saluvan ILR (1912) Mad. 118 : 25 M.L.J.405 has clearly laid down the principle in so far as the mischief of

Section 7 of the Limitation Act is concerned that a suit brought by two brothers of an undivided Hindu family to set aside an alienation by their

guardian more than three years after the elder attained majority is barred by limitation not only as regards the elder brother''s share but also in

respect of the younger brothers, though the fatter attained majority within three years prior to the institution of the suit. It has, been held in more

than one decision that the authority of the Madras case has not been upset by the Privy Council decision referred to and that the Privy Council had

no occasion to deal with the aspect of the case, dealt with in the Madras decision Indeed, in Bhakthavalsalud v. Narasimha Rao ILR (1940) Mad

752 : (1940) 1 M.L.J. a Bench of this Court has pointed that the Privy Council in Jawaheer Singh v. Udayaprakash ILR (1925) All. 152 : 1925

L.R. 53 I.A 36 : 50 M.L.J. 344 merely accepted the decision of the Allahabad High Court and did dot go into the matter further, The case before

the learned Judges was not one where the father and manager of the family was alive and in which the question arose whether the next senior adult

member of the family was competent to give a valid discharge. What had been laid down was that when the father was dead, the ordinary

presumption of Hindu Law is that the elder member of the Hindu family acts as the manager, that if he is the manager he could give a valid

discharge without the concurrence of the other members of the family and that it Is not necessary to prove affirmatively that the eldest member did

in fact act as the manager.

Whether the Madras decision referred was in conflict with the Privy Council decision was examined in Jaddu Padhi v. Chokkapu Boddu ILR

(1934) Mad. 155 : 67 M.L.J. 27,. Jackson, J., observed:

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 Jaw and presumably manager in fact when he attains majority and as such he is

within the mischief of Section 7, Indian 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.

The learned Judges referred to Ganga Dayal v. Mani Ram ILR (1908) All. 156, which had been relied upon by the High Court of Allahabad in the

case in appeal, before the Privy Council and pointed out that upon the facts it was established that the first plaintiff in that case had never acted as a

manager and that he could not therefore come within the scope of Section 7 of the Limitation Act. Even according to the facts in the Privy Council

decision, the elder son was never manager prior to the filing of the suit.

The matter was once again examined in the light of the numerous cases bearing upon the question by a Bench of this Court in A.S. No. 243 of

1947.

From the above decisions, it seems to be abundantly clear that where the father ceased to be the manager, the next junior number of the family

becomes the de jure manager on his attaining majority. The normal presumption being that the senior-most member is the manager, it should

generally speaking be unnecessary to establish that he undertook acts of management. But if the father is alive the allegation being that he

relinquished his responsibilities as manager, factual management by the next senior member have to be proved. It is no doubt true that it can be

proved by way of rebuttal that the next senior-most member was never in factual management of the family. If he is both in law and in fact the

manager of the family he becomes a person competent to give a valid discharge u/s 7 of the Limitation Act.

On behalf of the appellants again reliance has been placed upon the decision of a single Judge of this Court in Varada Pillai Vs. Sriramalu

Reddiar and Another, ., a decision of Krishnaswami Nayudu, J. The head note reads:

If the eldest member or the managing member has not filed a suit to set aside the 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. Each son has an independent right to question the

alienations. The right to question the alienactions arises in an individual member of the coparcenary not by virtue of his being the 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.

In the light however of the foregoing discussion, I am unable to accept and follow this decision. In reaching this conclusion, the learned Judge,

appears to have relied upon certain commentaries where some doubt was cast upon the principle that if the managing member who has a right to a

represent coparcenary as a whole has failed to challenge the alienations, the other coparceners are also barred. But, in the light of the several cases

to which reference has been made earlier, if the representative character of the managing member is such that he is competent to bind the junior

members of the family by his actions, in so far as his lawful acts of management are concerned, that right might include any consequence of his

failure to do any act. I prefer to follow the line of cases where the contrary view has been expressed to that apparently decided by Krishnaswami

Naidu, J. In fact, the learned Subordinate Judge has pointed out that the particular principle apparently laid down in that decision did not at all arise

for consideration in that case and the observation was more in the nature of an obiter, for the learned Judge himself has noticed that in the case

before him that question did not arise.

In view of the clear finding that the second, defendant became the manager of the family on the first defendant relinquishing his rights and

responsibilities of management, the failure of the second defendant to set aside the alienation within three years of his attaining majority operates as

a bar against the plaintiffs, the younger members of the family as well. The finding of both the trial and the lower appellate Court on this point is

correct. The Second Appeal fails and is dismissed with costs.