ADMINISTRATOR-GENERAL Vs. THOTTA RADHAKRISHNA CHETTIAR

JUDGEMENT

(1.) This is an appeal from the order of the Additional Subordinate Judge of Trichinopoly, dismissing E.P. No. 205 of 1929 in O.S. No. 16 of 1914 on the ground that it is barred by limitation. The only question that arises for decision in this appeal is whether the execution petition is barred by limitation. This petition is filed by the Administrator-General of Madras representing the estate of Epoor C. Ramalingam Chettiar, who, it is alleged, had become entitled to the rights of the late Thotta Rajagopala Chettiar, who was plaintiff 4 in the suit. The final decree in the suit, which was one for sale of the mortgaged, properties, was passed on 2 November, 1920; and this petition was held on 24 June 1929. The first contention of the appellant is that, as the decree was subsequently amended by an order made on 13 July 1929, (Ex. G.), on an application made by one of the defendants in the suit and one of the items of the decree was deleted, he is entitled to have the date of the amendment taken as the starting point for purposes of limitation, and that if it is so done, this application is not barred. But, as already observed, this application was filed before the date of the said amendment and is for the execution of the final decree as originally passed on 2nd November 1920, and not of the amended decree. Further, no application has till now been made by the; appellant either for the execution of the amended decree or for the amendment of the execution petition. In these circumstances, so far as this execution petition now before us is concerned, time began to run from the date of the final decree and not from the date of the amendment, and the amendment does not enure to the benefit of the appellant. The records, in Thiyagaraja Thevar V/s. Sambasiva Thevar 1934 57 Mad 795, relied on by the appellant, show that in that case there was an application for amendment of the execution petition after the decree was amended. The decision therein, therefore, does not help the appellant.

(2.) It is next argued that as one of the decree-holders, namely Purushotham Chetti, who was plaintiff 8 in the suit, was a minor on the date of the final decree and is still a minor, and as the other decree-holders were not in a position to give a valid discharge without the concurrence of the said minor, the right of all the decree-holders to apply for execution is not barred by reason of the provisions of Section 7, Limitation Act. The said Purushotham Chetti is one of the sons of plaintiff 1 and was brought on record on the death of plaintiff 1 when the appeal against the original decree was pending in this Court. He was then represented by his elder brother, Venkatarangum Chetti, plaintiff 6, as his next friend. But in the final decree it was Kothandarama Chetti, another brother of his, and plaintiff 7 in the suit, who was his next friend, and not Venkatarangam Chetti. The learned Subordinate Judge has found that the said Yenkatarangam Chetti, who is the eldest son of plaintiff 1, was the manager of the branch to which Purushotham Chetti belonged till 23 July 1922, when a partition was effected between the members of that branch. There is evidence to support this finding and we see no reason to come to a different conclusion. The argument advanced on be-half of the appellant is that though Venkatarangam Chetti, the manager of the branch to which the minor belongs, was a party to the suit, still as he was not the next friend of the minor, he was incompetent to give a valid discharge binding the minor also. In other words the argument amounts to this: as the minor was, represented in the suit by Kothandarama Chetti, he and he alone, could have given a valid discharge binding the minor, and even that, only with the permission of the Court obtained in accordance with the provisions of Order 32, Rule 6, Civil P.C. and Venkatarangam Chetti, even though he was the manager of the branch, was incompetent, in the circumstances to give a valid discharge binding the minor.

(3.) Ordinarily the manager of a joint Hindu family is competent to give a valid discharge by himself without the concurrence of the rest of the family including the minors. If, however, he happens to be the guardian ad litem or the next friend of a minor member of his family, it has been held that he would not be competent to give a valid discharge in respect of the subject- matter of the suit or decree wherein he occupies such a position without obtaining the permission of the Court under Order 32 Rule 6, in respect of the interest of such minor. In Ganesh Row V/s. Tuljaram Row (1913) 35 Mad 295, where the compromise of a suit entered into by the father, who was the guardian ad litem of his minor son without obtaining the leave of the Court under Section 482, Civil P.C. 1882, was called in question by the minor subsequently, their Lordships of the Privy. Council observed as follows: No doubt a father or managing member of a joint Hindu family may, under certain circumstances and subject to certain conditions, enter into agreement 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... The Courts in India seem to think that because Rajaram was a party to the suit of 1886 and was also guardian ad litem for his minor son, who was a member of the joint family whom Rajaram was representing, it was open to him to enter into the compromise in his personal capacity, and as it was a bona fide settlement of a disputed claim, it became binding on the minor by virtue of his having acted as the managing member of the family. How far the acts of a father or managing member may affect a minor, who is a party to the suit represented by another person as next friend or guardian ad litem, is a question which does not arise in the case, and their Lordships are not called on to express an opinion on it. But they consider it to be clear that when he himself is the next friend or guardian of the minor his powers are controlled by the provisions of the law and he cannot do any act in his capacity of father or managing member which he is debarred from doing as next friend or guardian without leave of the Court. To hold otherwise would be to defeat the object of the enactment.