Thiyagaraja Pillai vs Ratnasabapathi Pillai and Others

Arnold White, C.J.—In this case I think the finding of the Subordinate Judge on the fifth 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 three 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 three

years of the attaining of his majority by the plaintiff. For the purpose of the question of limitation, I assume that ha brought the suit within three 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 Suits No- 4 of 1881, was to create a right in severalty in the two/branches with reference to his

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 first defendant. Then it goes on to provide that the plaintiff''s right shall

after his death be exercised by his hairs and the first defendant''s right shall be exercised by him and by the second 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 first defendant is inconsistent with

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

Original Suit No. 1 of 1886, the families were dispossessed as regards the trusteeship it was open to Chockalingam to take proceedings for the

purpose of protecting the rights of the family. Ha 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 these 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 Jagadindranath Boy v. Hemanta Kumari Debi ILR (1905) Cal. 129 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 right of the other joint owners. That being my view with regard to the question of

limitation, I do not think it is necessary to discuss 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 statements in the plaint and in the compromise Exhibit A are true, it is clear therefrom 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 vest. For more than twelve 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 stops to protect

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