Sarda Prasad & Ors Vs. Lala Jumna
Prasad & Ors [1961] INSC 56 (20 February 1961)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
CITATION: 1961 AIR 1074 1961 SCR (3) 875
ACT:
Limitation-Execution-Decree for joint
Possession in favour of Hindu father and minor sons-Failure of father to
execute within the Period of limitation-Right of sons, if barred- Indian
Limitation Act, 194 (9 of 1908), s. 7-Code of Civil Procedure, 1908 (5 of
1908), 32, rr. 6, 7.
HEADNOTE:
A decree dated September 2, 1938, in a suit for partition of joint Hindu family property awarded a house to the share of
one J and his four minor sons. J failed to execute the decree. On November 23, 1949, an application was made by the appellants, the four sons of J, for
execution of the decree stating that three of them had been minors till then
and one of them was still a minor and so no question of limitation arose. The
respondent objected that the application was barred under S. 7 of the Indian
Limitation Act. The appellants contended that s. 7 did not apply to a partition
decree and that S. 7 was no bar as j could not have given a valid discharge of
the liability under the decree in view of the provisions of 0. 32 of the Code
of Civil Procedure.
Held, that the application for execution was
barred by limitation. J, the managing member of the family could have given a
discharge of the liability under the partition decree by accepting possession
on behalf of his minor sons without their consent and so time ran against them
under s. 7 from the date of the decree. Order 32, rr. 6 and 7 were no bar to j
giving a discharge of the liability under the decree as it was neither a case
of receipt of any money or movable property nor was there any question of
entering into an agreement or compromise on behalf of the minors.
Ganesha Row v. Tuljaram Row (1913) L.R. 40
1.A. 132, Parmeshwari Singh v. Ranjit Singh, A.I.R. 1939 Pat. 33 and Letchmatsa
Chetty v. Subbiah Chotty, (1924) I.L.R. 47 Mad.
920, referred to. 876
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 276 of 1956.
Appeal from the judgment and decree dated
October 15, 1954, of the Allahabad High Court in Execution First Appeal No. 224
of 1951.
S. P. Sinha and Tiryugi Narain for the
appellants.
G. C. Mathur, for respondent No. 1.
1961. February 20. The Judgment of the Court
was delivered by DAS GUPTA, J.-This appeal raises a question of limitation in
execution proceedings. The decree sought to be executed was made by the Civil
Judge, Kanpur, on September 2, 1938, in a suit for partition brought by two
brothers Jumna Prasad and Devi Prasad and two minor sons of Jumna Prasad,
against Gajju Lal, his son Jawala Prasad, the four minor sons of Jawala
Prasad-Sharda Prasad, Dharam Pal, Ram Pal and Krishna Pal, and one Smt.
Sundari. By the decree one of the properties, a house formerly bearing No.
36/22 and now 36/58, Etawa Bazar, Kanpur, was awarded along with other
properties to the defendants in the suit. The present application for execution
was made by the four brothers, Sharda Prasad, Dharam Pal, Ram Pal and Krishna
Pal on Novem- ber 23, 1949. The prayer was that these applicants may be
delivered possession over this Etawa Bazar house along with Gajju Lal, Jawala
Prasad and Smt. Sundari on dispossession of Jumna Prasad and Devi Prasad. It is
stated in the application that all these applicants had " up till now been
minors and one of them is still a minor and so no question in respect of time
arises." This' it is important to note, was the first application for
execution of the' partition decree. A number of objections were raised but the
principal objection and the only one with which we are concerned in this appeal
was that the application was barred by time.
The decision of this question depended on the
answer to the question raised on behalf of the opposite parties that Jawala
Prasad one of the persons entitled jointly 'with these applicants to make an
application for the execution of the decree could have 877 given a discharge of
the liability under the decree without the concurrence of his minor sons and so
time ran under s. 7 of the Limitation Act against them also from the date of
the decree.
The Trial Court did not feel satisfied that
Jawala Prasad could give a valid discharge and held accordingly that the
application was within time.
on appeal the High Court held that Jawala
Prasad as the Karta of the Hindu joint family could act on behalf of the entire
joint family in taking possession of the house allotted to the defendants and
delivery of such possession could discharge the liability qua the entire joint
family and held accordingly that the application was barred by limitation. The
High Court however granted a certificate under Art. 133(1)(c) of the
Constitution and on that certificate this appeal has been filed by the applicants
for execution.
Two contentions were raised on behalf of the
appellants in support of the plea that the High Court erred in holding that the
application for execution was barred by limitation.
First, it is urged that s. 7 of the
Limitation Act does not apply at all to a partition decree. The second
contention is that in any case Jawala Prasad could not give a valid discharge
of the liability under the decree in view of the provisions of O. 32 of the
Code of Civil Procedure.
On the first contention the argument is that
the word " discharge " is appropriate only in respect of a monetary
claim and is wholly inappropriate in respect of any decree for possession
whether on partition or otherwise. There is, in our opinion no substance in
this argument. The mere fact that the two illustrations to s. 7 are in respect
of debts is no ground for thinking that the provisions of s. 7 are limited to
suits or decrees on monetary claims only. Nor can we see any reason to think
that the word " discharge " can refer only to debts. Discharge means,
to free from liability. The liability may be in respect of monetary claims,
like the debts; it may be in respect of possession of property; it may be in
respect of taking some order as regards property it may be in respect of many
other matters.
Except in the case of declaratory decrees or
878 decrees of a similar nature, the decree in favour of one person against
another requires the person against whom the decree is made liable to do
something or to refrain from doing something. This liability is in a sense a
debt which the party is in law bound to discharge. The ordinary use of the word
" judgment debtor " to denote a person against whom a decree has been
made makes a clear recognition of this.
It is worth mentioning in this connection
that the Code of Civil Procedure itself defines " judgment-debtor "
to mean " any person against whom a decree is passed or an order capable
of execution has been made." It is helpful to notice in this connection
the provisions of s. 8 of the Limitation Act that " nothing in s. 6 or s.
7 applies to suits to enforce rights of preemption." If s. 7 had been
applicable merely to litigation for monetary claims it would have been
unnecessary and indeed meaningless to take the special step of exempting suits
to enforce rights of pre-emption from the operation of s. 7. This is a further
reason in support of the conclusion that the word " discharge" in s.
7 is not limited to discharge of monetary claims only but also to discharge or
satisfaction of all other liabilities as well. We therefore hold that the first
argument raised on behalf of the appellants has no substance.
Equally untenable is the second argument that
the provisions of 0. 32 of the Code of Civil Procedure debar the manager of a
Hindu joint family from giving discharge in respect of a liability to deliver
properties. Under the Hindu Law the Karta of a Hindu joint family represents
all the members of the family and has the power and duty to take action which
binds the family in connection with all matters of management of the family
property. Clearly, therefore, when in respect of a transaction of property
possession has to be received by the several members of the family, it is the
Karta's duty and power to take possession on behalf of the entire family,
including himself, the members of the family who are sui juris as well as those
who are not.
879 When any minor member of a joint family
is a party to a proceeding in a court he has however to be represented by a
next friend appointed by-the court and where somebody other than the managing
member, of the family has been appointed a guardian ad litem there might be
difficulty in the way of the managing member giving a discharge on behalf of
the minor. Where however the managing member himself is the guardian ad litem
the only difficulty in the way of action being taken by him on behalf of a
minor is to the extent as mentioned in 0. 32, rr. 6 and 7. In Ganesha Row v.
Tuljaram Row (1) the Judicial Committee pointed out that:- " No doubt a father
or managing member of a joint Hindu family may, under certain circum- stances
and subject to certain conditions, enter into agreements which may be binding
on the minor members of the family. But where a minor is party to a suit and a
next friend or guardian has been appointed to look after the rights and
interests of the infant in and concerning the suit, the acts of such next
friend or guardian are subject to the control of the Court." In that case
their Lordships held that in view of the provisions of s. 462 of the then Code
of Civil Procedure (which corresponds to 0. 32, r. 7 of the present Civil
Procedure Code) the managing member who had been appointed a guardian in the
suit had no authority to enter into any compromise or agreement purporting to
bind the minor. This principle has been applied also to cases where the
provisions of 0. 32, r. 6 would apply and so it has been held in numerous cases
in India that the Karta of a Hindu joint family though guardian in the suit
cannot give a valid discharge in respect of a claim or a decree for is money or
other movable property." (Parmeshwari Singh v. Banjit Singh (2) and
Letchmana Chetty v. Subbiah Chetty (3)) In the present case however there is no
scope for the application of either the provisions of 0. 32, r. 6 or O.32, r. 7
of the Code of Civil Procedure. Neither is (1) (1913) L.R. 40 I.A. 132,138, (2)
A.I.R. 1939 Pat. 33.
(3) (1924) I.L.R. 47 Mad. 920.
880 this a case of a receipt of any money or
movable properties nor is there any question of entering into an agreement or
compromise on behalf of the minor. For, clearly acceptance of delivery of
possession of property in terms of the decree in a partition suit can by no
stretch of imagination be considered entering into any " agreement or
compromise" We are therefore of the opinion that Jawala Prasad, the
managing member of the family could have given a discharge of the liability
under the partition decree by accepting delivery of possession on behalf of his
minor sons without their consent and so time ran against them also under s. 7
of the Limitation Act from the date of the decree. The High Court was therefore
right in its conclusion that the application for execution was barred by
limitation.
The appeal is accordingly dismissed with
costs.
Appeal dismissed.
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