JUDGMENT
Rangnekar, J.
1. The appellants, who are brothers, brought a suit in forma pauperis for a declaration that a sale effected during their minority by their mother as their guardian was not binding on them, and to recover possession of the property. The first defendant is the purchaser from the mother, and the other defendants are subsequent alienees from him. The defendants contested the suit, inter alia, on the ground that it was barred by limitation inasmuch as it was filed more than three years after plaintiff No. 1 had attained majority. The learned Judge, therefore, raised two preliminary issues, one as regards the age of plaintiff No. 1, and the other as regards limitation. He found that plaintiff No. 1 was more than twenty-one years of age when the application to sue in forma pauperis was filed. On the second question, relying on the decision in Bapu Tatya v. Bala Rovji (1920) I.L.R. 45 Bom. 446 : s.c. 22 Bom. L.R. 1383. he held that the suit was barred by limitation.
2. The sale was effected on November 5, 1924 ; the suit was instituted on September 1, 1932, and on that day plaintiff No. 1 was found to be over twenty-one years of age. These findings are not disputed before us on behalf of the appellants, but it is contended by Mr. Walawalkar on the appellants’ behalf that the ruling in Bapu Tatya v. Bala Ravji did not apply to the facts of this case ; and that, assuming that it did, it must be deemed to have been overruled by the decision of their Lordships of the Privy Council in the case of Jawahir Singh v. Udai Parkash (1925) L.R. 53 I.A. 36 : s.c. 28 Bom. L.R. 851.. There is no dispute that the law which applies to the facts of this case is that contained in Article 44 read with Section 7 of the Indian Limitation Act, 1908.
3. In Bapu Tatya v. Bala Ravji the facts were that three brothers, members of a joint Hindu family, brought a suit to set aside a sale-deed executed by their mother during their minority and to recover possession of the property. Plaintiffs Nos. 1 and 2 were minors and plaintiff No. 3 was more than twenty-one years of age at the date of the suit. The suit was held barred as against plaintiff No. 3, but the question having arisen whether it was barred against plaintiffs Nos. 1 and 2 under Section 7 of the Indian Limitation Act, 1908, the Court held that the suit was barred against them also. The ratio decidendi of this decision is that, if plaintiff No. 3 was competent to give a discharge of all claims against the defendants, without the concurrence of plaintiffs Nos. 1 and 2, as manager of the joint Hindu family, then Section 7 would apply and the suit will be barred, if plaintiff No. 3 was more than twenty-one years of age at the date of the suit. The learned Chief Justice observed as follows (p. 451) :-
The test seems to be this : supposing the third plaintiff had brought a suit within three years of attaining majority to set aside the alienation made by his mother, and that suit had been dismissed, would the next brother be allowed to file a suit and also any other brothers there might be, who were minors at the time, as soon as they came of age. It appears to me that the cause of action would be joint amongst them all, the issue being whether the alienation made by their guardian mother was a proper one, and when once that point has been decided in a suit filed by one of the sons who is entitled to be considered as a manager of the joint family, then that decision would be binding on them all.
Speaking for myself, with the greatest respect, it seems to me very doubtful to say in the case of coparceners in a joint Hindu family, possessed of ancestral estate, that the cause of action in favour of a coparcener to set aside an alienation of family property and sue to recover his own share in it would be a joint cause of action ; but undoubtedly in the case of coparcenery, all the members would be entitled to maintain a joint action against the alienee, and, therefore, the managing member would be in a position to give a competent discharge as the managing member of the family and Section 7 would then apply.
4. Mr. Justice Fawcett, who also delivered judgment in that case, mainly relied on the case of Doraisami Serumadan v. Nondisami Saluvan (1912) I.L.R. 38 Mad. 118 and disagreed with the view taken in the case of Ganga Dayal v. Mani Ram (1908) I.L.R. 31 All. 156.
5. This decision was again considered by Sir Norman Macleod in Bai Keval v. Madhu Kala (1921) I.L.R. 46 Bom. 535 : s.c. 23 Bom. L.R. 1191 and was distinguished by the learned Chief Justice on the facts in the latter case. Dealing with this case, the learned Chief Justice observed (p. 539) :-
The case of Bapu Tatya v. Balaji Ravji, which was relied upon, was a suit of a different nature, as it was a suit by the sons of a Hindu mother to set aside alienations made by her during their minority, and it was found as a fact, when the case came before us in second appeal, that the plaintiff was the managing member of the family, and that he had a right, as soon as he attained majority and became such managing member, to bring a suit as such manager to recover not only his share of the alienated property, but the whole of the alienated property, including his minor brothers’ shares. That being so, it was held that if the elder brother on attaining majority did not bring a suit to set aside the alienation within three years, then the other brothers would be barred. But in this case there is nothing on the record to satisfy us that the 1st plaintiff could have filed a suit to redeem the mortgage without the concurrence of the 2nd plaintiff.
The effect of these two decisions, therefore, undoubtedly is that a manager of a joint Hindu family is competent to give a discharge on behalf of the minor members of the family, and if the manager, who happens to be a minor, does not take any proceedings to set aside alienations made either by the mother or by the father within three years after attaining majority, then it would not be open to his minor brothers to bring a suit to set aside such alienations on their attaining majority, and a suit of that nature would be barred. It is argued by Mr. Walawalkar, first, that these decisions do not apply to the facts of this case because, he says (that seems to me to be correct), that there is no finding here that plaintiff No. 1 was the manager of a joint Hindu family. To that, it is answered on behalf of the respondents, relying upon the observations of the Court in Umakant v. Martand (1932) 35 Bom. L.R. 388 that the eldest brother must be deemed or presumed to be the managing member of the family. Again, speaking for myself, it seems to me to be correct to say that the presumption under Hindu law is that ordinarily the eldest brother would be the manager of the joint family ; but in this case, unfortunately for the respondents, the facts are quite different. The evidence in the case shows that excepting the property in suit there was no other property as such which belonged to the two brothers as members of the joint family. The two brothers were actually thrown on the streets on the death of their father, and for a long time they were being maintained by their aunt. Plaintiff No. 1 was earning a mere pittance of eight annas a day. In these circumstances, it seems to us to be difficult to hold that the ordinary presumption, which arises in the case of a joint Hindu family possessed of ancestral property, that the eldest brother must be deemed to be the manager of the family and its property, can apply to the facts before us, and that being so, in our opinion, the decision in Bapu Tatya v. Bala Ravji does not apply and Bat Keval v. Madhu Kala seems to be nearer to the facts of this case.
6. It is further argued by Mr. Walawalkar that Bapu Tatya v. Bala Ravji must be deemed to have been overruled by Jawahir Singh v. Udai Parkash. There is considerable force in that contention, but, in view of the conclusion to which we have come, we do not desire to express any definite opinion on that question.
7. We must, therefore, hold that as regards plaintiff No. 2 the suit was not barred. We confirm the finding of the learned Judge as regards plaintiff No. 1, but we hold plaintiff No. 2 is entitled to continue the suit. We set aside the decree of dismissal made by the learned Judge and remand the case for trial on the remaining issues.
8. Respondent No. 1 must pay half the costs of the appeal to appellant No. 2.
9. Appellant No. 1 will bear his own costs.
10. The other respondents will bear their own costs.
11. In the circumstances of this case, we will excuse the appellants from payment of Court-fees.
12. The appeal abates as against respondent No. 4, as he is dead and no steps are taken to bring his heirs on record.
N.J. Wadia, J.
13. I agree.
