MURLIDHAR LAXMAN Vs. SHIVRAM SADASHIV PATIL

JUDGEMENT

(1.) The question in this appeal is, whether the present darkhast is barred by limitation . The trial Court held that it was barred. The lower appellate Court took the view that in law it was not barred but by an error which is not easily explicable, dismissed the appeal with costs. The decree-holder appeals.

(2.) Laxman and Vithal were brothers constituting a joint Hindu family. On their death the family consisted of Laxman's minor sons Dattatraya and Murlidhar and Vithal's son Vaman a major and apparently the manager of the joint family consisting of himself and his two cousins. In suit No. 35 of 1911 an award decree was made allowing the plaintiff-respondent to redeem the land on making certain payments payable by instalments. The decree concluded as follows:-"The guardian of the minor defendants will not be allowed to receive the amount due under this decree unless he furnishes security for the same." The last payment certified was in 1917. For the defendants-appellants a certain payment in 1922 within three years of the darkhast was set up and was not held to have been proved in either Courts, In 1919 Dattatraya attained majority. While the darkhast was pending, Vaman died and hia heirs his two sons were brought on the record. In order to save limitation, the appellants rely on the fact that the younger brother Murlidhar attained majority within three years of the darkhast.

(3.) The trial Court held on these facts that though Murlidhar had attained majority within three years, Vaman and after his death Dattatraya could have given a valid discbarge and Murlidhar was not therefore entitled to the benefit of Section 7 of the Indian Limitation Act, In appeal the learned District Judge, while holding the alleged payment in 1922 not proved, held, chiefly on the authority of Letehmana Ghetty V/s. Subbiah Chetty (1924) I.L.R. 47 Mad. 920 that Vaman could not have given a valid discharge and that therefore Murlidhar could claim the benefit of Section 7 of the Indian Limitation Act. In other words, the darkhast was not barred by limitation. But he proceeded "However, owing to the finding of fact, the decision will remain unaltered", referring, presumably, to the finding of fact as to the alleged payment in 1922, and dismissed the appeal with costs.