Kumaran vs Raman and Others

Govinda Pillai, J.—The Plaintiff is the Appellant. The main relief claimed by him was for dividing the plaint schedule property into two, and for giving him one of those shares after ignoring or setting aside the alienations by the 1st Defendant. The property was the acquisition of one Kunju Aiyappan an Ezhava governed by the Makkathayam Law of inheritance. He had two sons Krishnan, the 1st Defendant, and Ittaman, the deceased father of the Plaintiff. It is clear that the children will inherit the property in equal shares. The share which Ittaman would have got even if he had predeceased his father Kunju Aiyappan would be inherited by the Plaintiff. It was the Plaintiff''s case that while he was away in Colombo, the entire property was sold by the 1st Defendant under Ex. I that the same will not bind him and that he is to get his share ignoring the same. The trial Court accepted the Plaintiff''s case and gave him a decree. The trial Court had also found that the Plaintiff was born only in 1096 and not in 1092 as stated by him.

The lower appellate Court held that the suit was barred by limitation as the Plaintiff whether he was born in 1092 or 1096 had not filed the suit within 3 years of his attaining majority. That Court had therefore applied Article XXXIV of the Cochin Limitation Act corresponding to Article XLIV of the Indian Act. The view adopted by the learned Judge is wrong. It is now accepted as settled law that where the manager of a joint Hindu family alienates coparcenary property and a minor member of the family seeks to avoid such alienations the case does not fall within Article XXXIV of the Cochin Act. The minor member will have 12 years from the date of the alienation to avoid the sale and to claim his share. The view of the lower appellate Court is wrong. That Court had disposed of the case on the question of limitation alone. So we set aside the decree of the District Court and send back the case for disposal after considering the other questions raised in the case. The appeal will be restored in its original number and disposed of. The Appellant will get costs of this appeal, the Respondent will bear his own. The other costs shall abide the final result.