LETCHMANA CHETTY Vs. SUBBIAH CHETTY

JUDGEMENT

(1.) This case furnishes a signal instance of the mischievous tendency of the Courts in this country to evade, or endeavour to evade, plain statutory mandates, and in no sphere of the law; so far as I have observed, has that tendency been more freely exercised than in that branch of the law we are concerned with in the present case, namely, the law of limitation. The way in which this matter stands is as follows: In October 1913, a decree was obtained in a suit in which the plaintiffs were a father and his three sons, and the three sons were described on the face of the proceedings as suing through their next friend and guardian the first plaintiff (that is, the father). Two months after that decree the father died and it was not until December of the following year 1914 that the eldest of the three sons attained his majority. On the 3 December 1917, well within three years of the attainment of majority, an execution application was taken out. It is said that application was barred because time must be taken to have run not from the attainment of majority of the eldest son but from the date of the decree itself, i.e., October 1913. The reason for it is said to be this and it depends upon the construction of two sections of two statutes, One the learned Judge has referred to, and the other he has not. Before I approach the consideration of the case law I will look at the sections of the statutes themselves. The relevant section of the Limitation Act is Section 7. It says this: "where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability (that means for our present purpose minority) 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."

(2.) Therefore a good discharge, which could be given without the concurrence of the others, is necessary before limitation can be invoked. Now it is said that the father in this case became entitled to give a good discharge as soon as the decree was passed, and to give a good discharge not only on behalf of himself but on behalf of his minor sons. This Court held in a number of cases culminating in the case of Ganesha Row V/s. Tuljaram Row (1913) I.L.R. 36 Mad. 295 (P.C.) that a Hindu father could, as managing member of a family, give a good discharge of a decree debt notwithstanding the fact that he might appear in the suit in the capacity of guardian ad litem or next friend. They based that decision upon the express provisions of Hindu Law and they said that his position as a father was independent of his position as guardian ad litem or next friend and that no disability which could attach to him can be supposed to attach to him by reasons to which I am coining presently and could in any way affect his position under the general Hindu law as father. That is the decision of this Court in several cases culminating in Ganesha Row V/s. Tulja Ram Row . What the learned Judges were dealing there with was an argument based upon a section of the Civil Procedure Code. That section is the present Rule 6 in Order XXXII and it reads as follows: A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other moveable property on behalf of a minor, either (a) by way of compromise before the decree or order, or (b) under a decree or order in favour of the minors.

(3.) As I said, the basis of the decision in Tuljaram Row's case was that the father occupied two entirely separate positions, that he was clothed with a double personality, and that inhibition of his acting in a certain manner in one of those capacities was no inhibition of his doing it under the other, the general powers of a Hindu father. Thereupon Tuljaram Row's case went to the Privy Council with this pronouncement of the Madras High Court to deal with and to say whether it was right or whether it was erroneous, and the words of the Privy Council are absolutely explicit in their application of the principle laid down by the Madras High Court and which, so far as I can see, is the necessary substratum of the whole of the argument that has been addressed to us. What their Lordships say is this: They (their Lordships of the Privy Council) consider it to be clear that when he (that is the father) himself is the next friend or the guardian of the minor, his powers are controlled by the provisions of the law and he cannot do any act in his capacity as father or managing member which he is debarred from doing as a next friend or guardian without leave of the Court. To hold otherwise would be to defeat the object of the enactment.