Punjabhai Prabhudas and Co. and others vs Sakinaben Mohamabhai and others

S.H. Sheth, J.

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Turning to the last contention as to limitation raised by Mr. Parekh we find that the accident occurred on 29th June 1969 and the claim petition was instituted on 23rd November 1972. The period of limitation prescribed for making the claim petition was 60 days under S. 110-A (3) as it was before it was amended by Act No. 56 of 1969. Prima facie, the application was barred by time. However, in the instant case, the claimants were and are minors. We have, therefore, considered the effect of Ss. 6 and 7 of the Limitation Act, 1963. Section 6 will not apply to the instant case because amongst the legal representatives of deceased labourer Manaji Narbhaji are not only the minor claimants but also his widow who is the mother and who has been joined as an opponent to the claim petition. Therefore, the case would be governed by S. 7 of the Limitation Act. It provides as under:--

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

In the instant case, the minor claimant and his brother are the legal representatives of the deceased. The question, therefore, which has arisen is whether the mother could have given discharge without the concurrence of the minor claimant. If she could give such a discharge, the claim petition would be barred by time because in that case the time would run against all. If the mother of the minor claimant -- the widow of the deceased -- could not give a valid discharge, time would not run against any of them unless and until the minor attained majority. The question which therefore has been raised before us is whether the mother of the minor claimant could give a valid discharge within the meaning of S. 7 of the Limitation Act, 1963. In order to appreciate the contention which has been raised it is necessary to turn to Explanation II to S. 1. It provides as follows :--

For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.

We apply the provisions of Expl. II only by analogy. A manager of a Hindu undivided family governed by Mitakshara Law who has otherwise wide powers in matters of joint family property can also not give a valid discharge within the meaning of S. 7 without the concurrence of other members of the family if he was not in management of the joint family property. So far as the mother of the minor claimant is concerned, she cannot be elevated to the status of a manager. It is difficult, therefore, for us to think that the mother of the minor claimant could have, within the meaning of S. 7, given a valid discharge in respect of the claim. In taking this view we are supported by two decisions one of which is of the Madhya Pradesh High Court and another of the Delhi High Court.

In Amalgamated Coal Fields Ltd. Vs. Mst. Chhotibai and Others, a Division Bench of the Madhya Pradesh High Court considered S. 7 of the Lim. Act and observed that the first requisite of that section is that there must be more than one person who are jointly entitled to institute the suit and that if a discharge can be given by a claimant who is free from disability without the concurrence of those who are under disability, then time runs against all of them and, therefore, limitation is not extended with reference to any of the joint claimants. It has next been observed that if such discharge cannot be given, the second part of the section comes into play and limitation will be extended with reference to all the joint claimants. In para. 11 of the report it has been observed that the discharge contemplated by S. 7 of the Lim. Act is one which can be given by a joint claimant in his own right as such joint claimant. Therefore, according to the learned Judges, the power which a joint claimant has, as a guardian of another claimant, to give a discharge on the latter''s behalf is not sufficient for the purpose of S. 7. After having analysed the provisions of S. 7 of the Lim. Act it has been further observed that the co-heirs are tenants-in-common having distinct shares and that, therefore, one cannot give a valid discharge in his or her own right in respect of the rights of his or her daughter. Therefore, in such a case, limitation is extended in favour of the entire body of the plaintiffs who have a joint right to sue.

The next decision is that of a learned single Judge of the Delhi High Court. In Bishan Dass v. Ramesh, 1971 ACJ 203 (Del), it has been observed by the learned single Judge in that decision that a claim which is made in an application filed under S. 110-A of the Motor Vehicles Act is an indeterminate claim and that, therefore, the mother of the minor claimant is in no position to give a valid discharge in case of such a claim-It has been next observed that each one of the legal representatives has a separate cause of action and each one of them is entitled to the separate award of compensation by reasons of his or her status and by reason of his or her relationship to the deceased. The reasons which have weighed with the learned single Judge in that decision are, in our opinion, quite valid. We agree with the principle laid down by the Madhya Pradesh High Court and the Delhi High Court in the decisions referred to above.