Nemmayya Shetty vs Nagaraja Shetty and Others

Varadachariar, J.—This second appeal arises out of a suit brought by the two plaintiffs for recovery of possession of the muli right in the suit

property, free from the Court-sale held at the instance of defendant 1 in execution of a decree for costs obtained by defendant 1 against the mother

of the plaintiffs, in A.S. Nos. 209 and 229 of 19.13 on the file of the District Court of South Kanara. The plaintiffs and defendants 2, 3 and 4 are

the children of the lady against whom the decree for costs was passed, and constitute an Aliyasanthana family. She died shortly after the decree,

leaving all these children minors. In the execution proceedings taken by defendant 1 he first proposed certain persons as guardians for the minors

and on their declining to act as guardians or not appearing in response to the notice, defendant 1 applied in R.E.P. No. 275 of 1917 to have an

officer of the Court appointed as guardian of these minors for the purpose of the execution sale. The Deputy Nazir was accordingly appointed and

as the costs decreed were not deposited, the property of the minors was brought to sale and purchased by defendant 1 himself in September 1917

This suit has been instituted by the plaintiffs almost at the expiry of the period of twelve years from the date of sale. In substance, their case is that

they were not really represented in the execution proceedings and the sale is accordingly not binding upon them, To meet the contingency of the

sale being held voidable and not void, they added that they are suing within three years of the fraud coming to their knowledge, it being assumed

that in that view the suit will be governed by Article 95, Lim. Act.

The first issue raised in the case was whether the Court-sale is not valid and binding on the plaintiffs and their family. The District Munsif was

apparently of opinion that the sale was open to question but he thought that the plaintiffs'' remedy was to proceed by way of application under

Order 21, Rule 90. I am not satisfied that this is the correct view as to the remedy open to the plaintiffs. If the remedy was to be by application,

and not by way of suit, the application would be u/s 47, Civil P.C. The District Munsif also held that even if the case should be held to be governed

by Article 95, the other members of the family who were older than the plaintiffs must have known of the sale and all matters connected with it

more than three years before the suit and that therefore the plaintiffs would also be barred under the terms of Section 7, Lim. Act. He accordingly

dismissed the suit. On appeal, the learned District Judge set aside the decree of the first Court, holding that the remedy by suit was available to the

plaintiffs and that in the application of Article 95 the plaintiffs cannot be prejudiced by the omission of defendants 2, 3 and 4 to sue in time. He

thought that the principle of the decisions of this Court in Vigneshwara v. Bapayya (1893) 16 Mad. 436 and Doraiswami Serumadan v. Nondisami

Saluvan 1915 Mad. 1201 was no longer good law in view of the decision of the Privy Council in Jawahir Singh v. Udai Prakash 1926 P.C. 16.

On the merits, I am not by any means satisfied that the Courts below were justified in assuming that defendant 1 was guilty of what is described as

''legal fraud'' in connexion with R.F.P. No. 275 of 1917. For some reason the affidavit filed in support of that petition has not been exhibited in the

case.

It will not therefore be fair to assume that he made any false statement there. Mr. Sitarama Rao however argues that even if he did not make a

false statement, he must have been guilty of suppression of truth in not disclosing the existence of the maternal grandmother of the minors and of the

maternal grandfather. It is on this omission that the lower appellate Court has held defendant 1 guilty of fraud. In view of the observations in

Marudamalai v. Palani 1914 Mad. 584 I am inclined to doubt the propriety of attributing fraud to a party merely because he does not mention the

existence of certain relations in connexion with a guardian application. Proceeding how ever on the footing that the circumstances connected with

the appointment of a court-guardian might have entitled the minors to question the sale, it appears to me that they must have taken the necessary

proceedings within the one year allowed by Article 12, Lim. Act, subject to such extension of time as they may get u/s 6. In this case the suit is

obviously beyond that period with reference to the age of plaintiff 1. No attempt has been made to invoke the aid of Section 18, Lim. Act, by

suggesting that defendant 1 was responsible for keeping the plaintiffs from the knowledge of their rights. If the sale was only voidable, the suit will

accordingly be barred by limitation, unless with reference to the age of plaintiff 2 and the effect of Sections 6 and 7, Lim. Act, the plea could be

gob over. Mr. Sitarama Rao contends that the sale must be held to be void and that accordingly any suit filed within twelve years will be in time. In

support of this proposition he relies upon the observations in Rivichand v. Manakkal Raman Somayajipad 1923 Mad. 553. The language used

there is somewhat general, but if one is to take it in all its generality, it will be difficult to reconcile that decision with the observations in

Marudamalai v. Palani 1914 Mad. 584. Ramesam, J., who was a party to Rivichand v. Manakkal Raman Somayajipad 1923 Mad. 553, has

explained himself more fully in Gunnam Gangarazu v. Satyanarayana 1931 Mad. 674, and there discussed the relevant authorities. There is no

question in the present case either of absolute non-representation or of the appointment of a guardian whose appointment is prohibited by statute.

The most that can be said is that defendant has persuaded the Court to make a wrong order in the matter of appointing a Court officer as-

guardian. The case is certainly more analogous to the type dealt with in Malikarjun v. Marhari (1901) 25 Bom. 337, than to that dealt with in

Khairajmal v. Daim (1905) 32 Cal. 296 or Rashidunnisaa v. Muhammad Ismail Khan (1909) 31 All. 572. I am inclined to agree with the view

indicated by Ramesam, J., in Gunnam Gangarazu v. Satyanarayana 1931 Mad. 674, that the sale is if at all only voidable and is not a nullity.

It only remains to deal with the argument founded upon the possibility that the suit may be in time with reference to the age of plaintiff 2. There is

no precise or consistent evidence as to plaintiff 2''s age apparently because its bearing upon the question of limitation was not clearly recognized in

the trial Court. If I had thought that his age would have a material bearing upon the ultimate determination of this second appeal, I should have

called for a finding upon that point, even giving the parties an opportunity"" to adduce further evidence. But as I have come to the conclusion that

even on the assumption that he had not completed 19 at the date of suit, that is, that the suit was not beyond one year of his attainment of majority

the suit will nevertheless be barred by reason of the operation of Section 7, Lira. Act, I have not thought it necessary to call for a finding on the

question of his age. The view taken by the learned District Judge that the decisions in Vigneshwara v. Bapayya (1893) 16 Mad. 436 and

Doraiswami Serumadan v. Nondisami Saluvan 1915 Mad. 1201 are no longer good law after the Privy Council decision in Jawahir Singh v. Udai

Prakash 1926 P.C. 16 is not tenable. This has been pointed out in a recent decision of a Division Bench of this Court in Jadhu Padhi v. Chokkapu

Boddu 1934 Mad. 469. It has also been pointed out in the Lahore case which Mr. Sitarama Rao himself cited, namely Lalchand v. Gianchand

1933 Lah. 479. But he contends that, without proof that plaintiff 2''s elder brothers or sisters were in actual management of the family property, the

operation of Section 7 could not be invoked. There is no doubt some support for this argument in the observations in the Lahore case above

(referred to and also in Bai Kaval v. Madu Kala 1922 Bom. 319. In the Lahore case the learned Judge referred to the fact that the major member

was in point of relationship only a nephew of the minor members and he accordingly hesitated to draw the presumption that the major member was

in law or in fact the manager of the family. In the Bombay case the learned Judges-refer to the fact that during the minority of all the members, the

mother was in de facto management of the property and there was nothing to show when the nephew took over the management that the mother.

If in these cases the learned Judges meant to lay down that in all cases where the operation of Section 7 is invoked there must be proof of de facto

management by the major member, I am afraid this will be going to far. In Doraiswami Serumadan v. Nondisami Saluvan 1915 Mad. 1201 both

Abdur Rahim, J. and Sadasiva Ayyar, J. referred to the presumptive capacity of the major member to be manager and the basis of the rule is the

managing member''s capacity to deal with joint property for proper purposes. It may be that of somebody else is in de facto management, the

presumption of the major member being the manager may be displaced, but that is very different from saying that in all cases there trust be proof of

de facto management by the managing member. This is also the view taken by the Division Bench in Jadhu Padhi v. Chokkapu Boddu 1934 Mad.

The observations in Peruma Goundan v. Rama Goundan 1916 Mad. 535 must be read in the light of the fact that the learned Judges, were

there considering whether they should allow the objection to be raised for the first time in second appeal, particularly in view of an allegation in the

pleadings that the major member was colluding with the opposite side. In Jugal Kisori Debi v. Baidya Nath Roy 1927 Cal. 952 the question arose

in connection with a joint decree in which the minor member had been represented by his mother as guardian and this naturally displaced the

managing member''s authority to deal with the minor''s interest in the decree. Further, the learned Judges point out that it was not even shown

whether they were members of a joint Hindu family. These cases are not therefore authorities for the position contended for by Mr. Sitarama Rao.

In the present case it is suggested that there was a grandmother of these minors, but as the property in dispute belonged only to this particular

branch and not to the whole group, the grand mother was not in law the guardian or manager. It is then argued that this branch had no other

property except the suit property and that therefore there was nothing for a managing member to manage. That does not appear to me to be the

test for the application of Section 7. For the purpose of this discussion we must assume that the suit property is the joint property of the branch and

then consider whether the eldest member would or would not have a right to dispose of it for proper purposes. If he could have done so, the case

will be governed by Section 7, Lim. Act. The District Munsif took the view that Section 7 was applicable to the case and in the grounds of appeal

to the District Court, no question of fact was raised that would have precluded the application of Section 7, but it only appears to have been

argued before the learned District Judge as a matter of law that the Privy Council case had overruled the Madras cases. This contention not being

correct, I am of opinion that the whole suit must be held to be barred by limitation by the combined operation of Section 7 and Article 12, Lim.

Act, even on the assumption that plaintiff 2 had not completed 19 years of age at the date of the institution of the suit. The second appeal therefore

must be allowed, the decree of the lower appellate Court set aside and the decree of the District Munsif restored. I do not propose to interfere

with the 1st Court''s direction as to costs, but the appellant will have his costs here and in the lower appellate Court.