Decided on December 14,1944

Devineni Pattabhiramayya And Ors. Respondents


Wadsworth, J. - (1.) THE appeal arises out of a pauper suit for the recovery of a sum of money by way of contribution in respect of the discharge of debts binding on a former joint family consisting of the plaintiff, his elder brother the third defendant and his cousins, defendants 1 and 2. There was a partition in 1926 as a result of a suit brought by defendants 1 and 2, the cousins. Plaintiff and his elder brother the third defendant remained joint. Plaintiff was then a minor. The third defendant was a major. After the partition the creditors of the family recovered the debts largely through proceedings against the properties of the plaintiff and the third defendant. The plaintiff sued for contribution alleging that he became a major in July 1938, the suit being filed on the 6th February, 1941. The lower Court has held that the suit was barred by limitation on the ground that the date of the plaintiff's birth must have been much earlier than the date given in the pleadings. We are inclined to doubt the correctness of the lower Court's finding regarding the date of the plaintiff's birth. The materials are very scanty, but there does not seem to have been much basis for the rejection of the evidence adduced on behalf of the plaintiff. The evidence consists of Ex. P -19 which is an extract from the school register giving the date of his birth as 1st July, 1920, and the oral evidence of P. W. 3, who is the plaintiff's maternal uncle, and of P. W. 7, supported also by the evidence of P. W. 10, who is alleged to have presented the plaintiff for admission in the school. This evidence, so far as it relates to the date of the plaintiff's birth, was practically ignored in the cross -examination. On the other hand D.W. 1 swears that the plaintiff was seven years old at the time of the partition suit filed in 1925, but he cannot give the year of the plaintiff's birth nor can he say where he was born. There is no birth register in the case. The statements made in previous pleadings regarding the age of the present plaintiff are conflicting. In one suit his age seems to have been given so as to correspond roughly with the present pleading, whereas the plaint in another suit indicates that he was considerably older than he now alleges. In this state of the evidence we are of opinion that it should have been held that the positive evidence adduced by the plaintiff regarding his age, though imperfect, was not rebutted.
(2.) IT was, however, contended in the written statement of the contesting defendants that the suit was barred by limitation by reason of the fact that the plaintiff and his elder brother the third defendant were members of a joint family at the material time and that the third defendant was an adult and the manager of that family and was able to give a full discharge on behalf of the family. This contention is not expressly considered in the lower Court's judgment, but there is a finding of fact that the third defendant was the manager of the family. We agree with that finding of fact. At the relevant time the third defendant was the only adult coparcener. It appears to be true that the third defendant was not living with his step -brother, the plaintiff. In previous proceedings we find the plaintiff represented as guardian ad litem sometime by his mother and in other proceedings by the third defendant. The third defendant has himself deposed that he was never taking any part in the management of the family. But this does not appear to be true. No doubt in various sale transactions both the third defendant and the plaintiff's mother, acting as his guardian signed the documents; but we do find that in Ex. P -5, a suit against the family on a promissory note, the first defendant actually contested the suit while the present plaintiff represented by his mother and guardian allowed the suit to proceed ex parte. That is an indication that the present third defendant was representing the family in the litigation. Again we find in Ex. P -8 (a) which is the suit register extract relating to the suit of 1930 on a promissory note, that the promissory note in question was executed by the third defendant along with the plaintiff's mother and another female member of the family; but there is nothing to indicate that the plaintiff himself was represented by his mother as an executant of the note. . That is to say, it would appear that in respect of a family debt, the third defendant signed on behalf of the family and the creditor took the signature of the mother of the plaintiff merely in order to bind her personally. This is a clear indication that the third defendant was in fact the manager of the family. Moreover, if the third defendant was not the manager of the family, who was? After the partition, third defendant and the plaintiff possessed considerable properties. They have all gone now, but some one necessarily had to represent the family in the management of those properties after the partition and the presumption is that it was the third defendant. Except for the bare statement of the third defendant there is nothing to show that in the discharge of debts he did not exercise the functions of the manager. In these circumstances we must hold that the third defendant was the manager of the family. The law on the subject is now quite clear. The Full Bench in Doraisami Serimadan v. Nondisami Salman, (1912) 25 M.L.J. 405:, I.L.R. 38 Mad. 118 decided that a suit to set aside an alienation, filed more than three years after the majority of the elder brother who was the manager of the family, was barred by limitation under Section 8 of the Limitation Act as it then stood (now Section 7) even though the suit was filed within three years of the majority of the younger brother. At one time - -vide Rajagopala Ayyangar v. : (1928)55MLJ30 there was some doubt whether this decision was good law in the light of the decision of the Privy Council in Jawahir Singh v. , which was a case of a suit by two sons against their father to set aside an invalid alienation by the father. But that was clearly not a case in which the elder son was the manager. The Privy Council held that the suit was not barred having been brought within three years of the majority of the younger son. The effect of the decision of the Privy Council has been clearly explained by the decision in Jaddu Padhi v. Chokkappa Boddu, (1934) 67 M.L.J. 27 :, I.L.R. 58 Mad. 155, with which we are in entire agreement and a similar view was taken in Bakthavatsaludu v. Narasimha Rao, (1937) 67 M.L.J. 195 :, I.L.R. (1940) Mad. 752. It seems to us well established that although a suit by the younger of two brothers filed within three years of his attaining majority would be barred by limitation if the elder brother had failed to sue within three years of his majority, if the former was a manager of the family, Section 7 of the Limitation Act would not operate as a bar if the adult brother was not the manager of the family during the relevant period. In the present case in view of our finding that the elder brother, the third defendant, was the manager of the family and was an adult during the whole of the relevant period, a suit by the younger brother must fail, even though brought within three years of his attaining majority, having regard to the provisions of Section 7 of the Limitation Act.
(3.) IN this view we dismiss the appeal with costs of respondents 1 and 2. We direct the appellants to pay the court -fee due to Government.;

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