Vigneswara vs Bapayya and Another

The issue sent for trial by our order of 6th December last was ""Is the suit barred by time?

The Subordinate Judge has found on this issue in the negative, being of opinion that the suit is saved by the latter part of Section 8 of the

Limitation Act. That Section is as follows: ""When one of several joint-creditors or claimants is under any such disability (i.e., is a minor or insane or

an idiot at the time from which the period of limitation is to be reckoned--see Section 7) and when a discharge can be given without the

concurrence of such person, time will run against them all; but when 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.

As has been observed in Auando Kishore Dass Bakshi v. Auando Kishore Bose ILR 14 Cal. 56 at p. 53 the latter part of this Section applies

only to a case of all the joint-creditors or claimants being under a legal disability. The present is not such a case, for it is admitted that first plaintiff

was not under any such disability. Then the question resolves itself into this--whether, notwithstanding the fact of one of two brothers of a Hindu

family being capable of instituting a suit to set aside a sale and his omission to do so within the time allowed by the law of limitations, the fact of the

other brother''s minority is sufficient to save the suit from being barred, if instituted within the time allowed by Section 7 after minority has ceased.

If the Calcutta case above referred to is to be followed in its entirety, this question would have to be answered in the affirmative, for it was there

heldthat Section 7 of the Limitation Act saved the suit from being barred as against the applicant who had but recently emerged from minority, and

that the remedy as against him was not barred, and he ""being one of the two joint decree-holders"" should be allowed to execute the whole decree,

because as against the other joint decree-holder it was the remedy only that was barred, but his right was not extinguished. It has, however, been

held by a Bench of this Court (Muttusami Ayyar and Parker, JJ.) in Seshan v. Rajagopala ILR 13 Mad. 236 that Section 7 of the Limitation Act

applies only to ""cases in which there is either one decree-holder and he is a minor, or in which all the joint decree-holders are minors or labour

under some other disability, but that it does not seem to be intended to apply to cases in which the minor''s interest can be protected by joint

decree-holders, who are also interested in the subject-matter of the decree."" Such was also the construction placed on the corresponding section

of the English Statute by Lord KENYON in Perry v. Jackson 4 T.R. 519 and that such was the intention of the framers of the Indian Act is

apparent on reading Sections 7 and 8 together. Section 7 having dealt with the case of the person or persons (all of them) entitled to sue or make

an application being under a legal disability, Section 8 provides (i) that Section 7 will not be applicable where there are joint-creditors or claimants

capable of giving a valid discharge, and (ii) where, all being originally incapable, any one of them becomes capable of giving such discharge.

Section 7 of the Limitation Act is, therefore, not applicable to the present case nor is the latter part of Section 8. There remains then only the

first part of Section 8. For the appellant the words ""when a discharge can be given without the concurrence of such person"" are referred to as

taking the case out of this Section. It is contended that if appellant''s brother had instituted a suit during appellant''s minority, he could not have

compromised the same so as to bind the minor and that consequently the case is one in which discharge could not have been given without the

minor''s concurrence. This contention is not of much force. The elder brother could have sued, making his younger brother a co-plaintiff, when any

compromise (if any there were) could only have been made with the leave of the Court obtained u/s 462 of the Code of Civil Procedure. The

present case is analogous to that of Surju Prasad Singh v. Khwahish Ali L.R. 4 All. 512 in which the suit was held to be barred. To hold otherwise

would be to allow first plaintiff to get done for himself indirectly through the second plaintiff that which the Limitation Act forbids first plaintiff from

doing directly.

We think, therefore, that the suit must be held to be time-barred, and on this ground we affirm the Lower Appellate Court''s decree dismissing

the suit, and direct the appellant to pay the respondents'' costs of this appeal.