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Report No. 3

Sections 6 and 7

27. There is a difference of opinion between the Madras and the other High Courts regarding the interpretation of section 6 of the Act. The question arose under section 7 of the old Act which corresponds to the present section 6. In the Madras High Court the view taken by Justice Bhashyam Ayyangar in Ahinsa Bibi v. Abdul, 25 Mad 26 approved by the Full Bench in Periasamy v. Krishna Ayyan, 25 Mad 43 was that in view of the definition in the General Clauses Act, the word "person" includes a plurality of persons. Accordingly, where a right is vested jointly in a plurality of persons, the protection given by this section extends only to cases in which each of the persons, jointly entitled to sue or to apply for execution, is affected by disability at the time from which limitation has to be reckoned; if any of them is then free from disability, section 6 is inapplicable.

But the other High Courts were of the view that the section applied irrespective of the question whether all or one or some of the several joint-creditors or claimants were under disability. In view of the present section 7 (which was amended subsequent to the said decision) whatever may be the interpretation of section 6, and whether the one view or the other is correct, if one of several persons is able to give a valid discharge without the concurrence of the person under disability, time runs against them all.

If, on the other hand, no such discharge can be given, time will not run against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. In view of this section, in the case of persons jointly entitled to institute a suit or make an application for the execution of a decree, all persons whether major or minor will get the benefit of the extended period of limitation so long as any one of them is a minor and so long as there is none capable of giving a discharge without the concurrence of the other.

But that is the result of substantive law under which one person cannot give a discharge on behalf of others unless he is an executor or a partner duly authorised or the manager of a Mitakshara joint Hindu family. The Madras High Court has taken the view in Annaptirnamma v. Akkayya (F.B.), 36 Mad 544 (FB). that one joint creditor could give a valid discharge so as to bind the others, basing the argument on section 38 of the Contract Act. But this view has not been accepted by any of the other High Courts and we think that the view taken by the other High Courts is correct; in this connection, the Contract Act may be suitably amended. There is no need to alter section 6 for this purpose.

28. Sub-section 4 of section 6 requires clarification. For the words: "at the date of death affected by any such disability", the words "at the date of the death of the person whom he represents" should be substituted, as otherwise the death of the first mentioned person under disability might be taken as the starting point, which will be meaningless.

29. There is a conflict of decisions on the question whether when a person under a disability dies, after the disability ceases, but within the time allowed to him by law to institute a suit, his legal representative can take advantage of the extended period to the same extent as in the case where the disability of a person continues up to his death. The denial of the benefit to the representative is inequitable and should be rectified by a suitable amendment of section 6.

30. The use of the word "discharge" in section 7 has given room for the argument that the section applies only to money claims such as debts, but does not extend to other rights such as the right to bring a suit impugning an alienation. All the courts, however, have adopted a liberal interpretation of the word as including not only money claims but also other rights of the plaintiffs including rights in immovable property. To make the position clear we suggest that an Explanation giving effect to the liberal interpretation may be added as Explanation (1) to section 7.

31. In this connection, a reference is necessary to an apparent conflict of decisions on the scope of section 7. One line of cases1 held that a suit brought by two brothers of an undivided Mitakshara family to set aside an alienation by their guardian, filed more than three years after the elder brother attained majority but within three years of the date of the younger brother attaining majority was barred. The other line applied the decision of the Privy Council in Jawahir Singh's cases 48 All 152 wherein it was held that the right of the younger son to challenge an alienation of the father was not extinguished by the omission of the elder brother to file the suit within the period prescribed for him.

If the cases are examined with reference to their facts, it will be found that there is really no conflict between them. In the second line of cases, the father was, alive and was a party defendant in the suit and hence the elder brother though a major was not in law the, manager and could not give a valid discharge even with the concurrence of the other members. In the former line of cases, on the other hand, the father was not in existence and the elder brother was the manager capable of giving a valid discharge. The correct position, therefore is that if there is a manager capable of giving a discharge and if he does not institute a suit within the time allowed by law, the suit by the minor members though instituted within three years of their attaining majority will be barred.

1. Starting from 38 Mad 118 (Doraisami v. Nandisami).

32. After the decision of the Privy Council in Jawahir Singh's case, controversy became acute also on the question whether in the case of a manager of a Hindu joint family, it was necessary to establish that the person capable of giving discharge as manager was not only the de jure but also a de facto manager. There was also a further question whether to establish that a person was a de facto manager, it was sufficient to prove one act of management or more than one act of management and whether it was necessary that there should be property of the family other than the alienated property. One view is that unless it is established that a de jure manager had also acted as a manager, i.e. was a de facto manager, he is not a person capable of giving a discharge e:g. Ganga Dayal v., Mani Ram, 31 All 156; approved in 48 All 152 PC (ibid) The other line of cases would make it a matter of presumption that a de jure manager has also acted as a de facto manager Baktavatsalu v. Rao, ILR 1940 Mad 752 In our opinion the former view is the better one, for the reasons given below.

33. The "managership" under the Hindu law is a creation law and devolves according to settled rules. The power and the capacity to give a valid discharge so as to bind other members of the family are conferred upon the manager for the reason that he is in possession of the property of the family and represents the family in all transactions relating to it. He can incur debts for the necessities of the family, discharge and realise debts and receive the income of the family properties. This is so because he is in possession of the property and is not merely an agent created by law so as to bind the others by giving a discharge in respect of debts either actually or notionally.

It seems to us, therefore, that to clothe a de jure manager with power to give a valid discharge so as to bind others when he is not in possession of any property of the family or when the family does not possess any property will be to jeopardise the interests of the other members of the family. If he collects the debts and walks away with the money the other members may have no remedy against him if he has no property. The idea underlying sections 6, 7 and 8 is to protect the minor and not to place him under a disadvantage. We, therefore, think that an Explanation should be added making it clear that the authority of a manager of a joint Hindu family to give a valid discharge can be inferred only when he is both a de jure and a de facto manager. It would not be wise to define the circumstances from which a de facto managership can be inferred. The question must be left to the decision of the courts having regard to the facts and circumstances of each case.



Limitation Act, 1908 Back




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