(1.)This appeal has arisen in a suit for partition of a Nambudiri Illom ignoring certain alienations executed by its karanavan, the 1st defendant, in favour of defendants 6 to 156. At the time of the suit, the illom consisted of six members, namely the 1st defendant, his wife the 2nd defendant, and their children, the 3rd defendant, the plaintiff & the defendants 4 and 5 in the order of seniority. In passing the preliminary decree for partition the court below has found the oral lease claimed by the 12th defendant not true, and many of the impugned alienations unsupported by illom necessity or benefit, and set them aside. Among the alienations so set aside were:
Ext. B33 dated March 28, 1950, in favour of the 13th defendant;
Ext. B34 dated February 28, 1950, Ext. B 35 dated October 14, 1946, and Ext. B36 dated July 3, 1944, the interests where under have devolved on the 17th defendant;
Ext. B39 dated November 13, 1936, in favour of the 19th defendant; and
Ext. B75 dated May 28, 1938, to the predecessor in interest of defendants 151 and 152.
This appeal is by the disappointed alienees defendants Nos. 12, 13, 17, 19, 151, and 152.
(2.)S.5 of the Madras Nambudiri Act 21 of 1933, before its amendment, in 1951, provided:
"(1) Except for consideration and for illom necessity or benefit and with the written consent of the majority of the major members of the illom, no karanavan shall sell immovable property of the illom or mortgage with possession or lease such property, for a period exceeding twelve years.
(2) No mortgage with possession or lease with premium returnable wholly or in part of any such property executed by a karanavan for a period not exceeding 12 years shall be valid unless such mortgage or lease is for consideration and for illom necessity or benefit."
It then follows that an alienation, being an assignment or a mortgage with possession or lease with returnable premium, of illom land, would not be valid unless it was for illom necessity or benefit. Counsel for the appellants was not able to make out illom necessity or benefit in respect of any of the aforesaid alienations and therefore the finding of the court below in regard thereto has to be accepted.
The alienations evidenced by Exts. B32 to B36 were within a period of 12 years prior to the institution of the suit. No bar of limitation arose in regard to them, the Nambudiris being governed by Hindu Law, though modified by well established customs of their own, as has been held in Narayanan v. Varnasi ( AIR 1947 Mad. 76 F. B.). Their cancellation decreed by the court below has therefore to be affirmed.
(3.)But different questions arise as regards Exts. B39 and B75.
Though this suit was instituted on March 16, 1953, there was then no prayer to set aside Ext. B75; nor were the concerned parties or property included in the plaint. It was by an amendment on October 24, 1956, that defendants 151 and 152 were impleaded, the concerned property included as item 80 in the plaint Bl schedule and a prayer to set aside the alienation, Ext. B75, added. By that time, the plaintiff was over 21 years of age, and therefore the benefit of S. e of the Limitation Act was exhausted. Under S.22 of the Limitation Act, where, after the institution of a suit, a new defendant is added, the suit, as regards him, has to be deemed instituted when he was so made a party. The suit in regard to Ext. B75 has therefore to be held barred by limitation.