RADHAKRISHNA MENON Vs. CHANDRASEKHARA MENON
HIGH COURT OF KERALA
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(1.) The appellants are four out of five members of a Nair Tarwad. They brought a suit in forma pauperis for a declaration that certain alienations effected by their mother in respect of their sub tarwad properties were not binding upon their sub Tarwad and for recovery of their 4/5th share after partition by metes and bounds. First defendant is the eldest brother of the appellants and, as such, the Karnavan of the sub Tarwad. But it was alleged that he was residing in a foreign place and had failed to recover the properties or otherwise protect the interests of the sub Tarwad. Defendants 2 to 6 represent the alienees. They contested the suit inter alia on the ground that the suit was barred by limitation in as much as more than 3 years had elapsed since the 1st defendant attained majority and that the 1st defendant had failed to institute the suit questioning the alienations within time. The Trial Court dismissed the suit on the basis of its finding on the preliminary issue that the suit was barred by limitation. Hence the appeal.
(2.) Two question were argued before us by the learned Counsel for the appellants. One is with regard to the findings as to limitation. The other is that the court below was wrong in having refused relief at least with respect to the properties which were the subject of alienation by way of mortgage.
(3.) The question of limitation may be taken up first. The alienations were by way of sales and mortgage and were effected in 1102. At the date of the alienations most of the children were either not born or were minors. The suit was filed in 1120 and at that date the 1st defendant was 24 years and the 1st plaintiff was 20 years old. Plaintiffs 2 to 4 were still minors at the date of suit. There is no doubt that the principle of law applicable is S.7 of the Indian Limitation Act corresponding to S.8 of the Cochin Act XII of 1112. S.7 reads as follows:
Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all, but where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.
According to learned Counsel for the appellants, the first part of the section will not apply to this case and it is the second part alone that applies. The only person who had come of age more than 3 years before the date of suit was the 1st defendant, but he could not give a valid discharge in the sense contemplated by the section without the concurrence of the plaintiffs. It may be that he was the Karanavan of the sub Tarwad at the relevant time, but the question still had to be found as to whether he was acting as the manager of the joint family and was therefore in a position to give such discharge. This involved a finding of fact and the disposal of the case on a preliminary issue as to limitation was in consequence precluded. It was argued that the 1st defendant, though the eldest member in the Tarwad, cannot be deemed or presumed to be the managing member of the family, particularly in view of the fact that, apart from the properties in suit, there were no other properties as such which belonged to the plaintiffs and 1st defendant as members of the Tarwad.;
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