Sarda Prasad and Others vs Lala Jumna Prasad and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 276 of 1956

Decision Date: 20 February, 1961

Coram: K.C. Das Gupta, P.B. Gajendragadkar

In the matter styled Sarda Prasad and Others versus Lala Jumna Prasad and Others, the Supreme Court of India delivered its judgment on the twentieth day of February, 1961. The judgment was authored by Justice K. C. Das Gupta and was pronounced by a bench consisting of Justice K. C. Das Gupta together with Justice P. B. Gajendragadkar. The citation for this decision appears as 1961 AIR 1074 and 1961 SCR (3) 875. The parties before the Court were identified as the petitioners, Sarda Prasad and several others, and the respondents, Lala Jumna Prasad and others. The case arose on appeal from a decree dated the fifteenth of October, 1954, rendered by the Allahabad High Court in Execution First Appeal No. 224 of 1951, which itself was an appeal from a decree dated the second of September, 1938, concerning a partition of joint Hindu family property. The appeal was numbered Civil Appeal No. 276 of 1956. Counsel representing the appellants were S. P. Sinha and Tiryugi Narain, while the respondent No. 1 was represented by G. C. Mathur.

The core issue before the Court concerned the limitation period applicable to an application for execution of a partition decree. The decree in question, dated 2 September 1938, awarded a house to the share of one J and his four minor sons. The father, J, failed to execute the decree. On 23 November 1949 the four sons applied for execution, asserting that three of them had been minors until that date and one remained a minor, and therefore no limitation should arise. The respondents objected, relying on section 7 of the Indian Limitation Act, 194 (9 of 1908). The petitioners contended that section 7 did not apply to a partition decree and that it could not bar execution because, under Order 32, Rules 6 and 7 of the Code of Civil Procedure, 1908, J could not validly discharge the liability on behalf of his minor sons. The Court examined the provisions of the Limitation Act and the Code, held that the application for execution was indeed barred by limitation, and reasoned that J, as the managing member of the family, could have effected a discharge of the liability by accepting possession on behalf of his minor sons without requiring their consent. Consequently, the limitation period under section 7 began to run from the date of the original decree. The Court further concluded that Order 32, Rules 6 and 7 did not prevent J from giving such a discharge because the case did not involve receipt of money or movable property, nor did it involve entering into any agreement or compromise on behalf of the minors. In reaching its decision, the Court referred to the authorities 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. The final order affirmed that the execution application was barred by the statutory limitation.

In this case, the partition suit was instituted on 2 September 1938 by two brothers named Jumna Prasad and Devi Prasad together with the two minor sons of Jumna Prasad. The suit was filed 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. The decree that resulted from the suit awarded one of the properties, a house originally bearing the number 36/22 and later renumbered 36/58, situated in Etawa Bazar, Kanpur, together with other properties, to the defendants. The present application for execution of that decree was filed on 23 November 1949 by the four brothers Sharda Prasad, Dharam Pal, Ram Pal and Krishna Pal. In that application the petitioners prayed that they be delivered possession of the Etawa Bazar house, jointly with Gajju Lal, Jawala Prasad and Smt. Sundari, thereby dispossessing Jumna Prasad and Devi Prasad. The application expressly stated that all of the petitioners had up to that time been minors and that one of them remained a minor, and consequently asserted that no question of limitation arose. It is important to note that this filing represented the first application for execution of the partition decree. A number of objections were raised, but the only objection that is relevant to the present appeal was the contention that the execution application was barred by limitation. The crux of that objection, raised by the opposite parties, was that Jawala Prasad, who was one of the persons jointly entitled with the petitioners to file an execution application, could have discharged the liability imposed by the decree without obtaining the concurrence of his minor sons. If that were true, the limitation period provided by section 7 of the Limitation Act would have begun to run against the entire family from the date of the decree. The trial court was not persuaded that Jawala Prasad possessed the authority to give a valid discharge on behalf of his minor sons, and therefore held that the execution application was filed within the permissible time. Upon appeal, the High Court held that Jawala Prasad, in his capacity as the Karta of the Hindu joint family, could act on behalf of the whole joint family in taking possession of the house allotted to the defendants, and that the delivery of such possession would discharge the liability of the entire joint family. Accordingly, the High Court concluded that the execution application was barred by limitation. Nevertheless, the High Court issued a certificate under article 133(1)(c) of the Constitution, and on the basis of that certificate the present appeal was filed by the applicants for execution. The appellants raised two principal contentions to challenge the High Court’s finding. The first contention was that section 7 of the Limitation Act does not apply at all to a decree of partition. The second contention was that, irrespective of the first, Jawala Prasad could not have given a valid discharge of the liability under the decree because the provisions of Order 32 of the Code of Civil Procedure would preclude such a discharge. On the first contention the

The judgment considered the first contention raised on behalf of the appellants, namely that the term “discharge” in section 7 of the Limitation Act applied only to monetary claims and was therefore unsuitable for a decree granting possession, whether arising from a partition or otherwise. The reasoning was that because the two illustrations to section 7 dealt with debts, the parties argued that the provision should be limited to suits or decrees concerning monetary amounts. The Court found no merit in that argument. It observed that the mere presence of debt‑related illustrations does not confine the operation of section 7 to monetary claims. The word “discharge” was explained as meaning “to free from liability,” and liability may arise from a variety of contexts, including the obligation to surrender possession of property, to comply with an order affecting property, or other non‑monetary matters. Except for declaratory decrees or similar orders, a decree in favour of one party imposes upon the opposite party a duty either to act or to refrain from acting, which constitutes a debt that the party is legally bound to discharge. The ordinary usage of “judgment debtor” to describe a person against whom a decree has been passed confirms this understanding. Moreover, the Code of Civil Procedure defines a “judgment‑debtor” as any person against whom a decree is passed or an order capable of execution is made. The Court also noted the relevance of section 8 of the Limitation Act, which expressly excludes from the operation of sections 6 and 7 suits to enforce rights of pre‑emption. If section 7 were intended to apply only to monetary litigation, the specific exemption for pre‑emption suits would be unnecessary and meaningless. This further supports the conclusion that “discharge” in section 7 is not limited to monetary claims but extends to the satisfaction of all forms of liability. Consequently, the first argument was held to be without substance.

The second contention advanced by the appellants asserted that Order 32 of the Code of Civil Procedure prohibited the manager (karta) of a Hindu joint family from giving discharge of a liability involving delivery of property. The Court examined the position under Hindu law, which accords the karta the authority to represent the entire family and to perform actions that bind the family in matters relating to the management of family property. Accordingly, when a transaction requires the possession of property to be taken by the various members of the family, it is the karta’s duty and power to receive such possession on behalf of the whole family, including those members who are sui juris as well as those who are not. The Court therefore concluded that the provisions of Order 32 do not prevent the manager of a Hindu joint family from effecting a discharge in respect of a liability to deliver property, and the second argument was also deemed untenable.

The Court explained that the Karta of a Hindu joint family possessed both the duty and the power to take possession of family property on behalf of the entire family. This duty extended to the Karta himself, to those members of the family who were sui juris, and also to those members who were not sui juris. When a minor member of a joint family became a party to a suit, the minor had to be represented by a next friend appointed by the court. If a person other than the managing member of the family was appointed as guardian ad litem, the managing member could encounter difficulty in giving a discharge on behalf of the minor. However, when the managing member himself was appointed as guardian ad litem, the only impediment to his acting on the minor’s behalf was the limitation imposed by Order 32, rules 6 and 7 of the Code of Civil Procedure.

The Court then referred to the authority of Ganesha Row v. Tuljaram Row (1) where the Judicial Committee observed that a father or managing member of a joint Hindu family could, under certain circumstances and subject to certain conditions, enter into agreements that might bind the minor members of the family. Nevertheless, when a minor was a party to a suit and a next friend or guardian had been appointed to protect the infant’s rights, the actions of that next friend or guardian were subject to the control of the Court. In that case, the Lords held that, pursuant to section 462 of the then Code of Civil Procedure (which corresponds to Order 32, rule 7 of the present Code), a managing member who had been appointed guardian in the suit lacked authority to enter into any compromise or agreement that would bind the minor. The same principle had been applied to situations falling under Order 32, rule 6, and numerous Indian cases had affirmed that even when the Karta acted as guardian, he could not validly give a discharge concerning a claim or decree for money or other movable property, as demonstrated in the decisions of Parmeshwari Singh v. Banjit Singh (2) and Letchmana Chetty v. Subbiah Chetty (3).

Applying these principles to the present matter, the Court found that neither Order 32, rule 6 nor Order 32, rule 7 was applicable. The case did not involve the receipt of money or movable property, nor was there any question of entering into an agreement or compromise on behalf of a minor. The acceptance of delivery of possession of property under a partition decree could not, by any stretch of imagination, be deemed an agreement or compromise. Consequently, the Court concluded that Jawala Prasad, the managing member of the family, could lawfully give a discharge of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent.

In this case the Court observed that the managing member of the family possessed the authority to discharge the liability imposed by the partition decree simply by accepting delivery of possession of the property on behalf of his minor sons, and that such acceptance did not require the express consent of those minor children. Because the managing member could have performed the discharge in that manner, the period of limitation began to run against the parties from the date on which the decree was pronounced, in accordance with section 7 of the Limitation Act. Accordingly, the Court considered that the time prescribed by the statute for instituting an execution of the decree had elapsed. The High Court, having arrived at the view that the application for execution was therefore barred by the operation of the limitation provision, was held to be correct in its conclusion. On that basis the Court affirmed the decision of the High Court and dismissed the appeal. In addition, the Court ordered that the appellant should bear the costs of the proceedings. The appeal was therefore dismissed with costs, and no further relief was granted.