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PETITIONER: SARDA PRASAD AND OTHERS

       Vs.

RESPONDENT: LALA JUMNA PRASAD AND OTHERS.

DATE OF JUDGMENT: 20/02/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.

CITATION:  1961 AIR 1074            1961 SCR  (3) 875

ACT: Limitation-Execution-Decree  for joint Possession in  favour of Hindu father and minor sons-Failure of father to  execute within  the Period of limitation-Right of sons,  if  barred- Indian  Limitation Act, 194 (9 of 1908), s. 7-Code of  Civil Procedure, 1908 (5 of 1908), 32, rr. 6, 7.

HEADNOTE: A decree dated September 2, 1938, in a suit for partition of joint Hindu family property awarded a house to the share  of one  J  and his four minor sons.  J failed  to  execute  the decree.   On November 23, 1949, an application was  made  by the  appellants,  the four sons of J, for execution  of  the decree stating that three of them had been minors till  then and  one  of them was still a minor and so  no  question  of limitation   arose.   The  respondent  objected   that   the application  was barred under S. 7 of the Indian  Limitation Act.  The appellants contended that s. 7 did not apply to  a partition  decree  and that S. 7 was no bar as j  could  not have  given  a valid discharge of the  liability  under  the decree  in  view of the provisions of 0. 32 of the  Code  of Civil Procedure. Held,  that  the  application for execution  was  barred  by limitation.  J, the managing member of the family could have given  a  discharge  of the liability  under  the  partition decree  by accepting possession on behalf of his minor  sons without their consent and so time ran against them under  s. 7  from the date of the decree.  Order 32, rr. 6 and 7  were no  bar to j giving a discharge of the liability  under  the decree  as it was neither a case of receipt of any money  or movable property nor was there any question of entering into an agreement or compromise on behalf of the minors. Ganesha  Row  v.  Tuljaram  Row (1913)  L.R.  40  1.A.  132, Parmeshwari  Singh v. Ranjit Singh, A.I.R. 1939 Pat. 33  and Letchmatsa  Chetty v. Subbiah Chotty, (1924) I.L.R. 47  Mad. 920, referred to. 876

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 276 of 1956.

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Appeal from the judgment and decree dated October 15,  1954, of  the Allahabad High Court in Execution First  Appeal  No. 224 of 1951. S.   P. Sinha and Tiryugi Narain for the appellants. G.   C. Mathur, for respondent No. 1. 1961.  February 20.  The Judgment of the Court was delivered by DAS GUPTA, J.-This appeal raises a question of limitation in execution proceedings.  The decree sought to be executed was made by the Civil Judge, Kanpur, on September 2, 1938, in  a suit for partition brought by two brothers Jumna Prasad  and Devi  Prasad  and two minor sons of  Jumna  Prasad,  against Gajju  Lal,  his son Jawala Prasad, the four minor  sons  of Jawala Prasad-Sharda Prasad, Dharam Pal, Ram Pal and Krishna Pal,  and  one  Smt.  Sundari.  By the  decree  one  of  the properties,  a  house  formerly bearing No.  36/22  and  now 36/58,  Etawa  Bazar, Kanpur, was awarded along  with  other properties  to  the  defendants in the  suit.   The  present application  for  execution was made by the  four  brothers, Sharda Prasad, Dharam Pal, Ram Pal and Krishna Pal on Novem- ber  23, 1949.  The prayer was that these applicants may  be delivered possession over this Etawa Bazar house along  with Gajju Lal, Jawala Prasad and Smt.  Sundari on  dispossession of  Jumna  Prasad  and Devi Prasad.  It  is  stated  in  the application that all these applicants had " up till now been minors  and one of them is still a minor and so no  question in  respect of time arises." This’ it is important to  note, was  the first application for execution of  the’  partition decree. A number of objections were raised but the principal objection  and the only one with which we are  concerned  in this  appeal  was that the application was barred  by  time. The decision of this question depended on the answer to  the question  raised  on  behalf of the  opposite  parties  that Jawala  Prasad  one of the persons  entitled  jointly  ’with these applicants to make an application for the execution of the decree could have 877 given a discharge of the liability under the decree  without the concurrence of his minor sons and so time ran under s. 7 of the Limitation Act against them also from the date of the decree. The  Trial Court did not feel satisfied that  Jawala  Prasad could  give a valid discharge and held accordingly that  the application was within time. on  appeal  the High Court held that Jawala  Prasad  as  the Karta  of the Hindu joint family could act on behalf of  the entire  joint  family  in taking  possession  of  the  house allotted  to the defendants and delivery of such  possession could  discharge the liability qua the entire  joint  family and  held  accordingly that the application  was  barred  by limitation.   The High Court however granted  a  certificate under  Art.  133(1)(c)  of  the  Constitution  and  on  that certificate this appeal has been filed by the applicants for execution. Two  contentions were raised on behalf of the appellants  in support  of  the plea that the High Court erred  in  holding that the application for execution was barred by limitation. First, it is urged that s. 7 of the Limitation Act does  not apply  at all to a partition decree.  The second  contention is  that  in any case Jawala Prasad could not give  a  valid discharge  of the liability under the decree in view of  the provisions of O. 32 of the Code of Civil Procedure.     On the first contention the argument is that the word  " discharge  "  is appropriate only in respect of  a  monetary claim  and is wholly inappropriate in respect of any  decree

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for possession whether on partition or otherwise.  There is, in our opinion no substance in this argument.  The mere fact that  the two illustrations to s. 7 are in respect of  debts is  no ground for thinking that the provisions of s.  7  are limited  to suits or decrees on monetary claims  only.   Nor can  we see any reason to think that the word " discharge  " can  refer  only to debts.  Discharge means,  to  free  from liability.   The  liability may be in  respect  of  monetary claims,  like the debts; it may be in respect of  possession of  property; it may be in respect of taking some  order  as regards property it may be in respect of many other matters. Except in the case of declaratory decrees or 878 decrees  of  a similar nature, the decree in favour  of  one person against another requires the person against whom  the decree  is  made liable to do something or to  refrain  from doing something.  This liability is in a sense a debt  which the party is in law bound to discharge.  The ordinary use of the word " judgment debtor " to denote a person against whom a  decree has been made makes a clear recognition  of  this. It  is worth mentioning in this connection that the Code  of Civil  Procedure itself defines " judgment-debtor " to  mean "  any  person against whom a decree is passed or  an  order capable of execution has been made." It is helpful to notice in this connection the provisions of s.  8 of the Limitation Act that " nothing in s. 6 or  s.  7 applies  to suits to enforce rights of preemption." If s.  7 had been applicable merely to litigation for monetary claims it  would  have been unnecessary and indeed  meaningless  to take  the special step of exempting suits to enforce  rights of pre-emption from the operation of s. 7. This is a further reason  in  support  of  the  conclusion  that  the  word  " discharge"  in s. 7 is not limited to discharge of  monetary claims  only  but also to discharge or satisfaction  of  all other liabilities as well.  We therefore hold that the first argument   raised  on  behalf  of  the  appellants  has   no substance. Equally untenable is the second argument that the provisions of 0. 32 of the Code of Civil Procedure debar the manager of a  Hindu joint family from giving discharge in respect of  a liability  to deliver properties.  Under the Hindu  Law  the Karta of a Hindu joint family represents all the members  of the  family and has the power and duty to take action  which binds   the  family  in  connection  with  all  matters   of management of the family property.  Clearly, therefore, when in respect of a transaction of property possession has to be received  by  the several members of the family, it  is  the Karta’s  duty and power to take possession on behalf of  the entire family, including himself, the members of the  family who are sui juris as well as those who are not. 879 When  any  minor member of a joint family is a  party  to  a proceeding in a court he has however to be represented by  a next friend appointed by-the court and where somebody  other than the managing member, of the family has been appointed a guardian  ad litem there might be difficulty in the  way  of the  managing  member giving a discharge on  behalf  of  the minor.   Where  however the managing member himself  is  the guardian  ad litem the only difficulty in the way of  action being taken by him on behalf of a minor is to the extent  as mentioned in 0. 32, rr. 6 and 7. In Ganesha Row v.  Tuljaram Row (1) the Judicial Committee pointed out that:-               "  No doubt a father or managing member  of  a               joint Hindu family may, under certain  circum-               stances  and  subject to  certain  conditions,

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             enter into agreements 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." In  that  case  their Lordships held that  in  view  of  the provisions  of  s. 462 of the then Code of  Civil  Procedure (which  corresponds  to  0. 32, r. 7 of  the  present  Civil Procedure Code) the managing member who had been appointed a guardian  in  the suit had no authority to  enter  into  any compromise or agreement purporting to bind the minor.   This principle   has  been  applied  also  to  cases  where   the provisions  of  0. 32, r. 6 would apply and so it  has  been held  in numerous cases in India that the Karta of  a  Hindu joint family though guardian in the suit cannot give a valid discharge in respect of a claim or a decree for is money  or other movable property." (Parmeshwari Singh v. Banjit  Singh (2) and Letchmana Chetty v. Subbiah Chetty (3)) In  the  present  case however there is  no  scope  for  the application of either the provisions of 0. 32, r. 6 or O.32, r. 7 of the Code of Civil Procedure.  Neither is (1) (1913) L.R. 40 I.A. 132,138,  (2) A.I.R. 1939  Pat. 33. (3) (1924) I.L.R. 47 Mad. 920. 880 this a case of a receipt of any money or movable  properties nor  is there any question of entering into an agreement  or compromise on behalf of the minor.  For, clearly  acceptance of delivery of possession of property in terms of the decree in  a  partition suit can by no stretch  of  imagination  be considered entering into any " agreement or compromise" We  are  therefore of the opinion that  Jawala  Prasad,  the managing  member of the family could have given a  discharge of  the  liability under the partition decree  by  accepting delivery  of possession on behalf of his minor sons  without their  consent and so time ran against them also under s.  7 of the Limitation Act from the date of the decree.  The High Court  was  therefore  right  in  its  conclusion  that  the application for execution was barred by limitation. The appeal is accordingly dismissed with costs.                                    Appeal dismissed.