White, C.J:— I have read the judgment of Sankaran Nair, J., and I agree. The Letters Patent appeal is dismissed with costs.
Sankaran Nair, J.:— The properties in suit belonged to the plaintiffs' father who died in 1895. The plaintiffs are his only heirs and during their minority their mother as their guardian sold the properties to the defendants.
2. The plaintiffs now seek to recover possession of them. The instrument of sale was executed in November 1895. At the date of the institution of the suit, plaintiff 1 was 23 years old and plaintiff 2, 20. The plaintiffs' case is that the suit is not barred by limitation as it was brought within three years of plaintiff 3's attaining majority and as plaintiff 1 could not give a valid discharge without the concurrence of plaintiff 2. Both the lower Courts dismissed the suit on the ground that it was barred by limitation following the decision of Vigneswara v. Bapayya(1). The learned Judges of this Court who heard the case differed in their opinion, Abdur Rahim, J., holding that the suit was barred and Sundara Aiyar, J., holding that the suit was barred so far as plaintiff 1 was concerned and that it was not barred with reference to the claim of plaintiff 2. This an appeal from the decision of Abdur Rahim, J., confirming the decrees of the Courts below.
3. The question for decision is whether the plaintiffs' suit is barred. The suit is governed by Article 44, Lim. Act. Under that article, in the case of a suit by a ward, who has attained majority, to set aside a transfer of property by his guardian, the period of limitation is three years and the time from which it begins to run is stated to be “when the ward attains majority.” It is contended by Mr. Venkatrama Sastri that in this this case as the word “ward” includes the plural and applies to a suit by both the plaintiffs, both the wards can be said to have attained majority only when plaintiff 2 became of age in 1907 and time began to run only from that date. Plaintiff 1 became a major long before that, i.e, in 1904. The time, so far as he is concerned, began to run against him from that date. I do not see therefore how it is possible to hold that the two plaintiffs can be said to have attained majority only in 1907. I have no hesitation in disallowing this contention. The next question is whether the suit, so far as plaintiff 2 alone is concerned is barred. The contention on behalf of the defendants is that his claim is barred under Section 8 of the Lim. Act. It is argued on behalf of the plaintiffs that Section 8 has no application to suits which are governed by Article 44 of the Lim. Act, because it is said that section only applies to cases where the starting point of limitation is postponed by reason of a disability; whereas in this case under Article 44 the starting point itself is the date the ward attained majority. I think the answer is contained in the section itself. S. 8 runs thus:
“When one of several joint creditors or claimants is under any such disability, 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.”
4. These words are quite clear. Where the plaintiffs are under a disability, time begins to run against one of them when the other becomes capable of discharging the liability without the concurrence of the person who is under the disability. When the words of the section are quite clear and the conclusion itself is one which is not opposed to any principle of law, we have to give effect to it. In this case, it is admitted that the section governs all classes of cases where one of several claimants who were under a disability attains majority and can give a discharge without the concurrence of the other, excepting the cases coming under Article 44. In these circumstances, I see no reason why the plain words of the Section should not be given effect to. I am therefore of opinion that if the case falls within the scope of Section 8 of the Lim. Act, then we must give effect to it. The question then remaining for consideration is whether S. 8 is applicable to the case. If plaintiff 1 on attaining majority was competent to give a discharge of the claim of plaintiff 2 then time began to run against plaintiff 2 also in 1904. It cannot be denied that on his attaining majority plaintiff 1 became the managing member of the family to which plaintiff 2 belonged, that as such he represented the family. It was competent for him to deal with the interest of plaintiff 2 also in circumstances which would justify an alienation under the Hindu law. On this ground I am of opinion that the claim is barred.
Sadasiva Aiyar, J.:— I must confess that at first, I was inclined to the view that plaintiff 2's right of action was not barred, the view taken by Sundara Aiyar, J., in this case when it was before the Division Bench. Article 44, Lim. Act, seems to give each ward who attains majority a separate right to set aside the transfer of his property made by his guardian and as the “time from which the period begins to run is stated in the third column to be “when the ward attains majority,” it looks, at first blush, as if the cause of action itself arises on the attainment of majority and not before. This view is capable of being further supported by the fact that a minor, as soon as he attains majority and on the date of his attaining majority, has got the light to repudiate or to ratify a transaction effected by his guardian during his minority. In a recent case decided by Sundara Aiyar, J., and myself, the question of the minor's right was considered, and we held that when the guardian of a minor made an alienation and afterwards died while the ward yet remained a minor, the succeeding guardian has no right to repudiate the said alienation on behalf of the minor and that it is the ward alone who has got the power to repudiate or gratify it on his attaining majority. (Second Appeals Nos. 892 to 912 of 1911, decided on 27th September 1912).
5. But there are cases binding on us (and it is so admitted in that same judgment) which show that even betas the ward attains majority, a suit could be brought on behalf of the minor by a next friend to set aside the alienation made by the guardian, though, in such a case, the Court has got large powers of interference with the course of the litigation. If such a suit is bona fide brought on behalf of the ward during his minority and decided against him, it is clear that the ward's powers of repudiating the transaction on attaining his majority is extinguished, and he cannot be allowed within three years of his attaining majority to bring a second suit to set, aside the same alienation. This seems to indicate that the cause of action to set aside the alienation arises at once, though the ward has three years to sue after he attains his majority, provided that a previous suit had not been bona fide instituted during his minority on that same cause of action on his behalf and bona fide conducted to its natural termination.
6. After anxious consideration, I think that just as the minor would be barred from bringing a suit to set aside his guardian's alienation after he attains majority by reason of the decision in a previous suit brought and conducted bona fide by a next friend during his minority for the same relief, so he would be barred if the manager under the Hindu law of the family property, is Which the minor had an interest and which interest was conveyed away by the minor's guardian during his minority confirms the said alienation on behalf of the family on proper grounds before the minor attains majority and releases for the family benefit the minor's right to question the alienation. It seems difficult to hold that there are two separate causes of action given to the ward to set aside an alienation of the ward's property by the guardians: (a) one cause of action which arises at once to be enforced by a suit brought by anybody acting as his next friend during the whole course of his minority and (b) another distinct cause of action which arises as soon as he attains majority, (and only on the date of his so attaining majority and not before) to be enforced by a suit brought by himself as a major.
7. If there is only one cause of action which arises on the date of alienation, it seems to follow, (as Abdur Rahim, J., has remarked), that Article 44 is only an illustration of the principle embodied in S. 7; and though a succeeding guardian (in the strict sense of the word) cannot ratify or repudiate the alienation of a prior guardian during the minority of the ward so as to bind the minor (according to the ruling already quoted in Second Appeal No. 892 of 1911, decided by Sundara Aiyar, J., and myself), the adult managing member of the minor's undivided family can deal with the family property for proper purposes and he (the managing member) has a right as soon as he attains majority and becomes such managing member to bring a suit as such manager for recovery of not only his share of the alienated property but of the whole of the alienated family property including his minor brother's share treating the whole as family property improperly alienated during the minority of himself and his younger brother. If such a suit beoame barred through his (the managing member's) not bringing it within three years of his attaining majority and of thus attaining the position of managing member, his younger brother cannot: see Ahinsa Bibi v. Abdul Kader Sahib(2), be allowed to contend that he had a separate cause of action to recover his share alone apart from the cause of action of the adult managing member to recover the whole. For the above reasons and after some hesitation I agree that this Letters Patent, appeal ought to be dismissed with costs.
S.N/R.K
8. Appeal dismissed.