Sheonandan Prasad v. Tahiran Bibi

Mukerji and Bennet, JJ.:— This is an appeal against the judgment of a learned single Judge of this Court, and the question on which the decision was given by that learned Judge was one of limitation alone.

It appears that there was a family of which one Sital was the father. His wife was Mst. Sumari, and his three sons were Debi Prasad, Nandan and Sheonandan. After the death of Sital two transfers were executed by way of sale, one in 1908 and the other in 1909. By these documents Debi Prasad and the mother Sumari (Nandan and Sheonandan being minors) purported to transfer certain portions of the family property. This suit was instituted by Sheonandan to set aside the alienation and to recover the property, in 1923. It has been found, among other matters, that at the date of the suit Sheonandan was less than twenty-one but his elder brother Nandan, who was not one of the vendors, was more than twenty-one. The suit has been dismissed on several grounds, one being that Nandan could give a valid discharge as the head of a joint Hindu family, and therefore limitation began to run against both Nandan and Sheonandan, and it expired when Nandan was twenty-one years of age. Reliance was placed on section 7 of the Limitation Act and certain rulings of this Court and other courts.

In our opinion, there are two answers to the contention that the suit is time barred. Firstly, the suit fell within article 44 of schedule 1 of the Limitation Act, it being a suit by a ward, who has attained majority, to set aside the transfer of property by his guardian, viz. the mother. The period of limitation is three years and begins to run from the date “when the ward attained majority.” As Sheonandan was one of the wards of the mother Sumari, prima facie he should have, in his own right, a period of three years from the date of his attaining majority for the institution of a suit like the present one.

The second ground on which the plea of limitation ought not to have been allowed to succeed is this. In a joint Hindu family every member, ordinarily, claims for himself. When a father alienates property, every one of the sons has a right to Impeach the transfer if it is not binding on the family. It is an individual right and is enjoyed severally by each of the joint members of the family. section 7 of the Limitation Act applies where any suit has to be brought “jointly” by several persons. A suit by one of several sons of a Hindu father who has transferred the property would be maintainable without the other sons joining in the suit. It cannot, therefore, be said that the right to sue is claimed “jointly” by the several sons of a father who alienated the joint Hindu family property. Further, the use of the words “a discharge can be given without the concurrence of such person” indicates that the section is applicable to cases like a debt where the question of discharge may arise. Here there is no question of discharge. The mother, on behalf of the minors, and the eldest brother alienated the property. If the head of the family (Debi Prasad at the time) could give a discharge within the meaning of section 7 of the Indian Limitation Act, no suit whatever could lie at the instance of the younger brother of Debi Prasad. We are of opinion that no question of giving a discharge arises in the present case.

Cases in this Court, e.g Tulshi Ram v. Babu(1), have established that a son can impeach his father's alienation, although other members of the family including the elder members have agreed to such transfer. It is true that in the Full Bench case of Hori Lal v. Munman Kunwar(2), it was laid down that, in a litigation, the head of a joint Hindu family governed by the Mitakshara represents the other members of the family. But that is altogether a different matter. It is not the case that any suit in respect of the subject matter of the present litigation had been brought by Nandan and that it should be taken for granted, in the absence of any evidence to the contrary, that Nandan represented his own and his younger brother's interest. On the other hand, this is a question of individual rights, and although Nandan may be willing not to impeach the previous transactions, Sheonandan, the present plaintiff, may be minded otherwise.

In the case of Ganga Dayal v. Mani Ram(3), the certificated guardian of two Hindu minors sold certain property of theirs without the sanction of the District Judge. The elder brother attained majority but did not impeach the transfer. When the younger brother attained majority he instituted a suit to impeach the transfer. It was held that the suit was not barred by limitation. This case was followed in an unreported case, Udai Par hash v. Udai Ram , by a Bench of this Court. The learned Judges repelled the contention that section 7 of the Limitation Act was a bar to the suit. The contention was noticed by the learned Judges in the following language: “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 attaining majority, and the suit when brought was statute barred. The learned Judges then considered the case of Ganga Dayal v. Mani Ram, and held that it laid down the correct law and the law that was applicable to the circumstances before the learned Judges. There was an appeal against the decision of this Court before their Lordships of the Privy Council, and the decision is reported. It will be found in Jawahir Singh v. Udai Parkash. The question of limitation was again urged before their Lordships of the Privy Council and the plea was repelled. Their Lordships did not discuss the plea but said: “On the question of limitation their Lordships concur with the High Court.” We take it that their Lordships entirely approved of the decision of this Court on the point of limitation, which involved a consideration of section 7 of the Limitation Act of 1908.

In this state of the authorities of this Court and of the Privy Council we are not disposed to decide in accordance with the view that prevails in Bombay. The learned single Judge relied on Bapu Tatya v. Bala Ravji(4), which does not seem to have taken notice of two earlier decisions to the contrary one in the same court in Gulam Goss v. Shriram Pandarang, and the other in the Madras Court in Kandasami Naiken v. Irusappa Naiken.

We, therefore, hold that the suit was not barred by limitation.

This disposes; of the judgment of the learned single Judge of this Court. The question then remains whether we should remand the case to the lower appellate court. But on considering the judgment of the lower appellate court we find that it has decided all the questions that were raised before it, in a careful judgment. Two points were urged before us, namely that the right of privacy claimed by the plaintiff was not considered by the lower appellate court, and that the decision of the lower appellate court as to legal necessity should not be accepted.

On the first point it appears to us that the plea was not pressed before the lower appellate court. It was negatived by the court of first instance. The lower appellate court has given a careful judgment, and it framed no less than six distinct and clear issues on the several points it had to decide. If the question of right of privacy had been raised before it, we are sure that it would have been considered by it. We cannot, therefore, allow this question to be raised again.

On the question of necessity, the learned counsel for the appellant has relied on the case of Nandan Prasad v. Abdul Aziz. It has been urged that as in the second of these two sale deeds Mst. Sumari did not describe herself as the guardian of her minor sons, it is not open to the courts to consider whether the minors were really benefited or not by the transaction, and whether Mst. Sumari was or was not actually dealing with the property as the guardian of her minor sons. We have had the sale deed read out to us. We do not find anywhere that Mst. Sumari purported to make the transfer as the owner of the property. Indeed she did not give herself any particular character in the document. Only a year ago she had transferred a portion of the property as the guardian of her minor sons. We are, therefore, not bound to take the view that Mst. Sumari, in executing the document of 1909, was taking up an attitude which was contrary to the interest of her minor sons. This view of the sale deed would distinguish the case of Nandan Prasad v. Abdul Aziz. The technical plea, therefore, taken by the learned counsel for the appellant on this point cannot succeed.

There is one other point, which ought to be noticed, and it is this. The respondent Muhammad Saddiq died more than three months ago, and his legal representatives have not been brought on the record. It was urged on behalf of the respondents that the whole appeal had abated. On looking at the written statement filed by Muhammad Saddiq we find that he disclaimed all title to the property. He said that the other defendant in the suit, namely Muhammad Saddiq's wife, the defendant No. 1, Mst. Tahiran, was the sole owner of the property. In the circumstances, we do not think that the death of Muhammad Saddiq and the fact that his legal representatives, namely those (if any) other than his wife, were not brought on the record do not, in any way, affect the merits of the appeal. The preliminary objection, therefore, fails.

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