SUSHILA DEVI Vs. PREM KUMAR

JUDGEMENT

(1.) These four second appeals are like the suits giving rise to them being disposed of by a common judgment. The main second appeal No. 2588 of 1972 is by the defendant. Smt. Sushila Devi and arises out of a suit for possession filed by Prem Kumar for a house property in respect of which Prem Ku-mar's grand-father Bhagwan Singh father Ram Pratap and uncle Kishan Dutta had executed a gift-deed 7-7-39 in favour of a deceased uncle's widow Kaushilya Devi. Prem Kumar was born on 24-4-39. He filed the suit on 25-4-60 (as 24-4-60 was a Sunday) claiming that he was filing it within three years of becoming a major. He alleged in the suit that the property was joint family property and the gift-deed was invalid. Defendants Nos. 2 to 8 were the other members of the family namely his father, uncle and brothers. Defendants Nos. 9 to 11 were tenants in part of this property. These tenants are the respective defendant-respondents in the remaining three appeals. The principal defendant in the suit was Smt. Sushila Devi who claimed the property as successor of her husband Kripa Shanker in whose favour a Will dated 21-3-49 was said to have been executed by Kaushilya Devi. The case of Sushila Devi in brief was that the gift-deed was valid and the property account of the Will dated 21-3-49 in due course had passed to her.

(2.) The remaining three appeals are also by Sushila Devi but these are plaintiff's appeals. These arise out of three suits filed by her for arrears of rent and ejectment against the three tenants aforementioned who are defendants Nos. 9 to 11 of Prem Kumar's suit.

(3.) In the main appeal four points were pressed by the learned counsel for the appellant. Three of these have no merit and may be briefly disposed of. This it was urged that (1) the gift-deed should be upheld as part of a family settlement and (2) that Prem Kumar's father Ram Pratap had been adopted in another family and consequently Prem Kumar had ceased to be a member of the joint family and had no right of suit left. Both the courts below have recorded concurrent findings against the existence of any family settlement and adoption of Ram Pratap. No defect that can be taken note of in second appeal would be pointed out in these findings. These must, therefore, be upheld as findings of fact not assailable at this stage. (3) It is next urged that in view of Section 7 of the old Limitation Act, plaintiff had no right of suit left when his elder brother Ram Kumar who admittedly attained majority more than three years before the present suit had not challenged the gift-deed. There is no substance in this contention either. The settled view is that Section 7 operates only if the other persons by whose act the plaintiff is said to be bound was in a position to give a valid discharge on behalf of the plaintiff. In cases like the present the elder brother's omission to file a suit within three years of his ceasing to be a minor would bar a subsequent suit by the younger brother after his own minority only if the elder brother had been a Karta of the family and should be treated as representing the younger brother. This is not the case here for the father Ram Pratap who was and is the Karta of the joint family is alive and was himself an executant to the gift-deed and it is his act that is being challenged by this suit.