Radhakrishna Menon and Others vs Chandrasekhara Menon and Others

Varadaraja Iyengar, J.—The Appellants are four out of five members of a Nair Tarwad. They brought a suit in forma pauperis'' for a declaration that certain allenations 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.

Defendant 1 is the eldest brother of the Appellants and, as such, the Karanavan 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 inasmuch as more than 3 years had elapsed since Defendans 1 attained majority and that Defendant 1 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.

Two questions were argued before us by the learned Counsel for the Appellants. One is with regard to the finding 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.

The question of limitation may be taken up first. The alienations were by way of sales and mortgage and were effected in 1102. At 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 Defendant 1 was 24 years and Plaintiff 1 was 20 years old. Plaintiffs 2 to 4 were still minors at date of suit. There is no doubt that the principle of law applicable is Article 7, Indian Limitation Act corresponding to Article 8 of the Cochin Act 12 of 1112. Article 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 Ors. 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 Defendant 1, 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 Defendant 1, 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 Defendant 1 as members of the Tarwad.

The Respondents'' learned Advocate replied to this argument by saying that, the managership of Defendant 1 or otherwise was irrelevant, for the applicability of Section 7, Limitation Act and that in any event the allegation in the plaint that Defendant 1 Karanavan, had neglected to conserve the interests of, the Tarwad was by itself enough to show that Defendant 1 was really in a position to give a valid discharge, within the scope of the extreme test advocated for by the other side.

We think there is a good deal of force in this reply, for, It is undoubted that the Karanavan of a Marumakkathayam Tarwad has a birth-right to he the manager and representative of the Tarwad for all purposes. Nor is it correct to say that there must be some property in existence for a Tarwad to come into being and the senior member thereof to be styled a Karanavan and manager. See - ''Chempaka Pillay v. Madhavan Pillay'' 1947 Trav LR 936(A).

There can be no difficulty therefore in thinking that Defendaant 1 effectively fulfils the tests which the Appellants'' learned Counsel himself would require for purpose of the applicability of the first part of Section 7. In this view there cannot be much point in the argument against the applicability of Section. 7.

But in deference to the strenuous argument of learned Counsel for the Appellants, we desire to consider whether it is necessary at all for purpose of applicability of Section 7 to Marumakkathayam families for the adult member, who could have filed suit within time and failed to do so, to be the manager of the family during the relevant period.

The question came up for consideration in this Court in ''Ramchandran v. Narayanan'' AIR 1950 Trav C 57 (FB)(B). It was no doubt a case relating to members of a Hindu Mitakshara family, but the principle was dealt with as though it applied equally to cases of Marumakkathayam Tarwads. It was ruled by the Full Bench in that case that the term ''discharge'' used in the section is not confined to the discharge of a pecuniary liability but had a wider significance and includes release of rights in respect of immovable property and even the right to institute a suit.

The right of junior members of a joint family or of an undivided Tarwad to impeach alienations made by the manager or Karanavan as the case may be, is a right common to all such junior members and one of them is entitled to institute a suit on behalf of the joint family or the Tarwad to set aside such alienations. The adult members in the joint family could effect a valid discharge of that right by either electing to institute such a suit or not to institute such a suit.

The concurrence of the minor members in the Joint family is not necessary for effecting such a (sic) Vaild discharge by the adult member or members in the family. The Court observed that the matter was concluded by authority so far as this Court is'' concerned and referred to ''Pankajakshl v. Krishnan'' 1947 Trav. L.R. 320 (c) and ''Ikkanda Warrior v. Parameswaran Elayad'' 38 Cochin 379 (D). and further observed that the question had been fully discussed in these two rulings and it did not therefore require reconsideration.

Learned Counsel for the Appellant asks that it may be that one or more of the junior members not party to the alienation may exercise a power on behalf of all Ors. to sue to set aside the alienation and thereby vindicate the right of the Tarwad. The success or otherwise in ''that litigation may also conclude the Tarwad.

The failure to exercise such power, however, ought not to visit a disability on the rest of the members to file suits of their own for the conservation of the Tarwad interests, unless the failure was that of a real manager who could represent the rest. The answer to this question is not far to seek.

The principle of the section appears to be that if there are some persons in existence who are adults who could have safeguarded the common, rights of themselves and all Ors. similarly situated, the failure of the persons who ought to litlgate the right will start the cause of action not only against themselves but also against persons in similar circumstance. See ''Varamma v. Gopaladasayya'' AIR 1919 Mad 911 (FB)(E).

As observed by the Chief Justice in ''1947 Trav. LR 320 at p. 323(C)'', under the Law and the Marumakkathayam usage the Karanavan loses his right to represent the Tarwad only in respect of acts which are beyond his competence to do and any member of the Tarwad may take on himself the Karanavan''s duty of protecting the affairs of the Tarwad by establishing a Justifiable claim to set aside an act of spoliation or an unwarranted alienation of the Karanavan. Where one member brings a suit to set aside an unequal partition or an alienation and a judgment is obtained on a fair trial, the decision becomes ''res judicata'' binding on all members.

The ground is that, a common right was agitated and a fair decision has been obtained which will bind all persons having such right. Where no suit has been instituted at all by one available member of the Tarwad who was ''sui juris'' and who could have challenged by suit the alienation or partition but did not file a suit in time and allows the cause of action to become barred, the loss of the cause of action and the right of suit is the loss of the entire Tarwad and no subsequent suit could be brought by anybody else.

The bar arises by virtue of the provision of substantive law which gives the right to any major member to represent the Tarwad as against the breach of trust of the Karanavan. And Sankarasubba Iyer J. in the same case gave reason for the (sic) as that the seniormost man of the Tarwad after the Karanavan and those members who have disabled themselves from acting for the benefit of the Tarwad, can be treated in law as the inchoate Karanavan competent to act for the Tarwad or he and the other members not parties to the transaction are competent to represent the Tarwad.

Learned Counsel referred to ''Padmanabha Iyer v. Narayana Pattar'' 10 Cochin 483(F) and also Bhikarchand Devidas Vs. Lachhamandas Bansilal, in support of his propositions but these cases do not require to be considered since they (sic) to coparceners in a Joint Hindu family.

There is no doubt authority in other jurisdictions for holding that in the case of Hindu Mitakshara families only the manager can give a valid discharge u/s 7, Indian Limitation Act so as to bind other members of a family and that therefore it is only in case the person, who omits to sue within the statutory period, was the manager of the family that the first part of the section will apply so as to make the period of limitation run against all the members of the family. See ''Jaddu Padhi v. Chokkapa Boddu'' AIR 1934 Mad. 439 (H); Varada Bhaktavatsaludu and Another Vs. Damojipurapu Venkatanarasimha Rao (dead) and Others, ; and Devineni Subbarao Vs. Devineni Pattabhiramayya and Others, .

We are not also unaware that in cases of joint Mitakshara families it has been actually laid down in one case that the alleged manager must be shown to have actually acted as the managing member of the joint family (see ''Ganga Dayal v. Mani Ram'' 31 All. 156 at p. 160(K) and. that further questions have arisen as to whether the section is applicable to cases where the manager had nothing to manage in view of the disputed property being the only property of the family.

But these and other cases were fully reviewed and refused to be followed in a recent case of this Court involving the very same question in ''Trivikrarnan Nair v. Gopala Pillai'' 1954 Ker. L.T. 590 (L). as they were opposed to the principle laid down in the Full Bench case in ''AIR 1950 Trav. C. 57 (B)'', already referred to.

So far as this Court is concerned, the matter must be taken to be quite settled that the right to bring an action to set aside an improper alienation made by a Karanavan is a right of the Tarwad land if competent aduit members allowed the alienation to go unchallenged for over 12 years, the Tarwad''s right to sue becomes thereby barred. We therefore hold that the Court below was right in holding that the suit is barred by limitation.

On the second point as to relief being granted to the Plaintiffs by way of redemption of the mortgage in respect of items 6 to 9 in favour of Defendant 6, we do not think, that any interference is called for. The Plaintiffs had asked for recovery of the property after setting aside the mortgage and further in respect of their 4/5th share only.

It is not certainly a claim for recovery of property admitting the mortgage, that is, by way of redemption an now put forward and after all thu Plaintiffs'' right to redeem is in no jeopardy and they can always exercise it in the usual course.

We accordingly confirm the decree, of the Court below and dismiss the appeal with costs. As the appeal had been filed in ''forma pauperis,'' the State Government will realise the court-fees due from the Appellants and a copy of this judgment will be sent to the Advocate-General.