Thiagaraja vs Rathnasabapathi Pillai and Others

Arnold White, C.J.—In this case I think the finding of the Subordinate Judge on the 5th issue, that the plaintiff''s claim is barred by limitation,

is right. It is admitted that Chockalingam, who represents one branch of the family, attained his majority more than 3 years before the institution of

the suit. The other branch of the family is represented by the plaintiff. It is not admitted by the respondents that the suit was brought within 3 years

of the attaining of his majority by the plaintiff. For the purpose of the question of limitation, I assume that he brought the suit within 3 years of his

attaining his majority....

The Advocate-General, on behalf of the appellant, has contended that the effect of the compromise which was entered into between the two

branches of the family in connection with Original Suit No. 4 of 1885, was to create a right in severalty in the two branches with reference to this

trusteeship and the management of the properties. I do not think that is the effect of the compromise. Paragraph 6 states that the right of the

trusteeship in question has remained in the families of the plaintiff and of the 1st defendant. Then it goes on to provide that the plaintiff''s right shall,

after his death, be exercised by his heirs, and the 1st defendant''s right shall be exercised by him and by the 2nd defendant, and after the death of

both of them by their heirs. I think the effect of the compromise is to constitute the representatives of the two branches of the family for the time

being joint trustees and to give them joint interests as joint owners in the property in question, and I cannot accede to the contention of the

Advocate-General that the effect of providing against the right of survivorship as between Chockalingam and the 1st defendant is inconsistent with

giving joint rights to the representatives of the branches of the family for the time being. When, by virtue of the decree of the District Court in O.S.

No. 4 of 1886, the families were dispossessed as regards the trusteeship, it was open to Chocklingam to take proceedings for the purpose of

protecting the rights of the family. He failed to do this and that being so, it seems to me it is not now open to the plaintiff to say ""it is true that my

co-trustee did not think fit to take any action as regards establishing the family rights in connection with his trusteeship; but notwithstanding that,

and notwithstanding the fact that the rights of my co-trustee as against third parties have become barred, it is open to me, now that I have attained

my majority, to take proceedings for the purpose of establishing those rights."" I think, on the facts of this case, the joint trustee having taken no

steps to protect the trust and his right to take steps being now time-barred, it follows as a matter of law that the right of the joint trustee is also

time-barred, With regard to the case of Jagudindranath Roy v. Hemanta Kumari Debi (1904) ILR 32 C. 129 (P.C.) which was relied on by the

appellant, it seems to me that the case is clearly distinguishable from the present one, because in that case the question we have to decide never

arose for consideration. In that case there was no question as to joint rights and there was no question as to the legal effect of a joint owner failing

to take steps to enforce his rights with reference to the rights of the other joint owners. That being my view with regard to the question or limitation,

I do not think it necessary to decide the other question raised in this case, viz., the question of res judicata. I think the judgment of the Court below

is right and this appeal should be dismissed with costs. The appellant must pay Government the, Court fees he would have had to pay if he had not

been allowed to appeal as a pauper.

Munro, J.

Assuming for the sake of argument that the statement in the plaint and in the compromise, Exhibit A, are true, it is clear there from that the office

belonged to the family as a whole, though for the sake of convenience certain arrangements were made as to the individuals in whom the actual

management should rest. For more than 12 years before suit, the office and the properties which formed the subject of management were held

adversely by the defendant, and, during the whole of that time, there was an adult male member of the family who could have taken steps to

protect the alleged rights of the family. In these circumstances, I think the plaintiff''s suit is clearly barred and would dismiss the appeal with costs.