- (1.) THIS is a second appeal by Imarta and others against the judgment and decree of the District Judge, Ganganagar.
(2.) THE appellants were defendants in a suit brought by Sahiram and Motiram minor through his next friend Sahiram for setting aside an alienation by their mother Mst. Dakha who was also made a pro forma defendant. THE alienation was made on the 16th April, 1932, and certain plots of agricultural land in village Suryawala were transferred to the defendants appellants. THE case of the plaintiffs was that the property, was their ancestral property, and their mother had no right to alienate it. It was further pleaded that the alienation was without consideration. Certain other pleas were also raised and the plaintiffs wanted a decree setting aside the alienation. The suit was resisted by the defendants appellants. Among other pleas, the defendants appellants contended that the suit was barred by limitation. The trial court took up the issue of limitation and decided it in favour of the defendants appellants, and dismissed the suit. Thereupon, there was an appeal by the plaintiffs to the District Judge who was of the view that the suit was not barred by limitation. He, therefore, remanded the suit for decision of the remaining issues. The present appeal is from the order of the District Judge. The only question, therefore, that arises for determination in this appeal, is one of limitation. The undisputed facts, on which that question has been raised may be briefly narrated. The plaintiffs are sons of one Jiya. It seems that their father was dead before 1932 when the alienation was made. On the 16th April, 1932, Mst. Dakha, acting as the guardian of the plaintiffs who were both minor at the time, made the alienation. In April, 1936, the plots alienated were entered in the name of the defendants. Sahiram plaintiff was 16 years old on the date of the alienation. He thus attained majority on the 16th April, 1934. The present suit was brought on the 5th of May, 1942. At that time Sahiram was major, but the other son Motiram was still a minor, and Sahiram sued on his own behalf and as next friend of Motiram minor. The argument on the point of limitation is this. Under Art. 44 of the Limitation Act, a ward, who has attained majority, can file a suit within three years of his becoming major to set aside a transfer of property by his guardian. Sahiram became major in April, 1934, according to the defendants, and at the latest in December, 1934, according to his own statement in court. The suit should, therefore, have been filed within three years of at least December, 1934. As it was filed in 1942, it was barred by limitation so far as Sahi Ram is concerned. It is further urged that though Motiram was still a minor when the suit was filed, and though apparently the period of limitation would not run against him under Art. 44, the suit is time barred against him as well, in view of sec. 7 of the Limitation Act. It may be added that Motiram is major now. Sec. 7 of the Limitation Act reads as follows - "where one of several persons jointly entitled to institute a suit or make an application for the execution of the decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all. But where 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 other or untill the disability has ceased. " The defendants argue that the two brothers were jointly entitled to institute the suit for setting aside the alienation, and as Sahiram became major in 1934, time began to run against both as Sahiram could give a discharge without the concurrence of the minor Motiram. The learned District Judge has relied on Jawahirsingh vs. Udai Parkash and others (1) (AIR 1926 P. C. 16.), and has come to the conclusion that the suit is not barred. Two questions arise in this connection. The first is whether Sahi Ram and his brother were jointly entitled to institute a suit, because if they were not jointly entitled, sec. 7 will not apply at all. The second question is if the two brothers were jointly entitle to institute the suit, whether one of them namely Sahiram could give a discharge without the concurrence of Motiram. So far as the first question is concerned, the cause of action to the two brothers was the same, namely the alienation of the property by their mother. When two brothers have got the same cause of action, that is where all the material allegations giving rise to right of suit are the same, and where the whole right litigated, and the nature of the entire claim litigated are the same, and where under such circumstances, the elder brother can institute a suit for himself and his younger brother on that joint right and joint cause of action, the two brothers would be jointly entitled to institute a suit. We may in this connection refer to Kandasami Naichen vs. Irusappa Naicken (2) (AIR 1918 Mad. 724.) in support of the view that we have taken. This brings us immediately to the next question, namely whether this case is one where a discharge could be given by Sahiram without the concurrence of Motiram. Jawahirsingh's case (1), to which reference has already been made, does not contain any discussion on the question of limitation, and their Lordships of the Privy Council merely remarked that they concurred with the decision of the High Court on the question of limitation. The judgment of the Allahabad High Court, from which that appeal was taken to the Privy Council, is not reported. But we sent for a copy of it and we find that the learned Judges held that the mere fact that the elder brother had not brought a suit to challenge the alienation within three years of his attaining majority would not bar the suit against the other brothers who were still minor. They did not agree with the view taken in Doriasami Sirumadan vs. Nondisami Saluvan (3) (AIR 1915 Mad. 1201.), and relied on an earlier case of their own court, namely Ganga Dayal vs. Mani Ram (4 ). The judgment of the Privy Council shows that Doraisami's case (3) was considered by their Lordships, and their Lordships preferred the view taken in the Allahabad case (4 ). In Doraisami's case (3), two of the learned Judges were of the view that the plaintiff, namely the elder brother on attaining was competent to give a discharge on behalf of his minor brother, and therefore time began to run against both. The reason given was that the elder brother being the managing member of the family represented it, and was competent to deal with the interest of the minor brother. The third learned Judge was hesitant, but eventually agreed with the view taken by the other two learned Judges. In Jawahirsingh's case (1), the view taken in Doraisami's (3) was, by implication, not approved. The earlier Allahabad case was Ganga Dayal vs. Mani Ram (4) (ILR 31 All 156. ). In that case the learned Judges took the view that elder brother was not capable of giving a discharge without the concurrence of the younger brother, and therefore time did not run against any of the plaintiffs. It seems to us rather difficult to understand how it can be said that elder brother can give a discharge in a case of this kind. The expression 'discharge' seems inappropriate in the case of the right to set aside an alienation. It is undoubted that even though the right to set aside an alienation of this kind may be joint in two brothers, each one is separately entitled to bring a suit. It is difficult to understand how an elder brother can give a discharge of this right to bring a suit by remaining quiet and not bringing a suit himself. In this connection reference may be made to Sheonandan Prasad vs. Mst. Tahiran Bibi (1) (AIR 1930 All 681.) and Kamta Rai vs. Rani Jaduraj Kunwari (2) (AIR 1931 All. 389. ). Without going to the extent of saying that a discharge can only be given in a case of debt, we feel that there can be no question of a discharge by mere silence of the elder brother in a case of this kind where the brothers can file a suit separately also even though the right to file the suit may be a joint right. There are a number of cases in which the opposite view has been taken, and it has been held that the elder brother can give a discharge in cases of this kind without the concurrence of the other brother and that the fact that he does not bring a suit within a period of three years after attaining majority amounts to giving a discharge within the meaning of sec. 7. These cases are Vigneswara vs. Bapayya (3) (ILR XVI Mad. 436.), Doraisami Sirumadan vs. Nondi-sami Saluvan (4) (AIR 1915 Mad. 1201.), Luta Ram vs. Shiv Ram (5) (AIR 1929 All. 14.), and Annia Pillai and others (6) (AIR 1936 Mad. 914. ). Jawahirsingh's case (7), was discussed in the last two of these cases, but it was held that it did not make any difference to the law. With all respect to the learned Judges, we feel that as Doraisami's case (4), was not approved in Jawahirsingh's case (7) (AIR 1926 Privy Council 16.), and the view taken by the Allahabad High Court which was based on I. L. R. XXXI Allahabad, 156, was approved, it follows that there can be no question of discharge in a case like the present. One more case that may be considered is Anrudh Rai vs. Sant Prasad Rai (8) (AIR 1935 All. 746 (2 ). ). In that case the decision of their Lordships of the Privy Council in Jawahirsingh's case (7), was considered, and was not followed on the ground that in that case the defendants were claiming adverse possession and were not claiming through any alienation by a member of the family. That case, therefore, is no authority for a case like the present where the defendants are not claiming on the ground of adverse possession. Another distinction, which is sometimes drawn, is that in Jawahirsingh's case (7), the father was alive when the suit was brought, and it is said that in those circumstances the elder brother could not give a discharge. We feel that the fact that the father was alive or dead when the suit was brought should make no difference to the question of discharge. In the view we have taken there can be no discharge in a case like the present because the right is not capable of being discharged, and therefore the second part of sec. 7 would apply, namely, that as no dis-charge could be given, time will not run against any of them until the disability has ceased.
(3.) THE suit is thus within time, and there is no reason to interfere in appeal. We dismiss the appeal, and order that costs in all the courts will abide the final result. .;