PUNJABHAI PRABHUDAS AND CO Vs. SAKINABEN MOHAMABHAI

JUDGEMENT

(1.) His Lordship after narrating the facts further observed

(2.) Turning to the last contention as to limitation raised by Mr. Parekh we find that the accident occurred on 29th June 1969 and the claim petition was instituted on 23rd November 1972. The period of limi- tation prescribed for making the claim petition was 60 days under sec. 110 as it was before it was amended-by Act No. 56 of 1969. Prima facie the application was barred by time. However in the instant case the claimants were and are minors. We have therefore considered the effect of secs. 6 and 7 of the Limitation Act 1963 Section 6 will not apply to the instant case because amongst the legal representatives of deceased labourer Manaji Narbhaji are not only the minor claimant but also his widow who is the mother and who has been joined as an opponent to the claim petition. Therefore the case would be governed by sec. 7 of the Limitation Act. It provides as under: Where one of several persons jointly entitled to institute a suit or make an applica- tion for the execution of a 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 others or until the disability has ceased. In the instant case the minor claimant and his brother are the legal re- presentatives of the deceased. The question therefore which has arisen is whether the mother could have given discharge without the concurrence of the minor claimant. If she could give such a discharge the claim peti- tion would be barred by time because in that case time would run against all. If the mother of the minor claimant - the widow of the decea- sed could not give a valid. discharge time would not run against any of them unless and until the minor attained majority. The question which therefore has been raised before us is whether the mother of the minor claimant could give a valid discharge within the meaning of sec. 7 of the Limitation Act 1963 In order to appreciate the contention which has been raised it is necessary to turn to Explanation It to sec. 7. It provides as follows For the purposes of this section the manager of a Hindu undivided family governed - by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property. We apply the provisions of Explanation 1t only by analogy. A manager of a Hindu undivided family governed by Mitakshara law who has other wise wide powers in matters of joint family property can also not give a valid discharge within the meaning of sec. 7 without the concurrence of other members of the family if he was not in management of the joint family property. So far as the mother of the minor claimant is concerned she cannot be elevated to the status of a manager. It is difficult therefore for us to think that the mother of the minor claimant could have with- in the meaning of sec. 7 given a valid discharge in respect of the claim. In taking this view we are supported by two decisions one of which is of the Madhya Pradesh High Court and another of the Delhi High Court.

(3.) In Amalgamaged Coal Fields Ltd. . Mst. Chhotibai and others 1973 Accidents Claims Journal 365 a Division Bench of the Madhya Pradesh High Court considered sec. 7 of the Limitation Act and observed that the first requisite of that section is that there must be more that one person who are jointly entitled to institute the suit and that if a dis- charge can be given by a claimant who is free from disability without the concurrence of those who are under disability then time runs against all of them and therefore limitation is not extended with reference to any of the joint claimants. It has next been observed that if such dis- charge cannot be given the second part of the section comes into play and limitation will be extended with reference to all the joint claimants. In paragraph 11 of the report it has been observed that the discharge contemplated by sec. 7 of the Limitation Act is one which can be given by a joint claimant in his own right as such joint claimant. Therefore accor- ding to the learned Judges the power which a joint claimant has as a guardian of another claimant to give a discharge on the latters behalf is not sufficient for the purpose of sec. 7. After having analysed the pro- visions of sec. 7 of the Limitation Act it has been further observed that the co-heirs are tenants-in-common having distinct shares and that there- fore one cannot give a valid discharge in his or her own right in respect of the rights of his or her daughter. Therefore in such a case limitation is extended in favour of the entire body of the plaintiffs who have a joint right to sue.