Ramchandran Potti and Others vs Narayanan Sekharan and Others

Plaintiffs 2 to 5 are the Appellants. Defendant 13 is the father of Plaintiffs 1 to 8 arid all of them are members of a Hindu Mitakahara family. The plaint properties are claimed to be the joint family properties of the Plaintiffs and Defendant 13. Items 1 to 3 were obtained by Defendant 13 under Ex. A partition deed executed by himself and his brothers. in the year 1077. Item 4 was purchased by him with the consideration obtained by mortgaging an. other property which he had obtained under Ex. A. Items 5 and 6 are Puthuval registries in his name and it is contended that such registries were obtained with joint family funds. On 23-6-1095 Defendant 13 sold items 1 to 4 in favour of Defendant 1 under Ex. B sale-deed for a con. sideration of 19,000 fanams. Defendant 1 in turn transferred his rights over these items to Defendant 2 who is accordingly in possession of the properties. Item 5 was sold by Defendant 13 in favour of Defendants 3 and 4 for a consideration of 2800 fanams under Ex. C dated 14-10-1094. Defendant 5 subsequently obtained an assignment of the property from Defendants 3 and 4. Item 6 also was purchased by Defendant 6 for a consideration of 3500 fanams under Ex. D sale-deed dated 17-12-1097. Defendants 6 to 12 are stated to be in possession of items 5 and 6 under a partition arrangement made by Defendant 5 and the other members of his tarwad. Plaintiffs have impeached Exs. B, C and D as alienations unsupported by consideration and family necessity and they have sued foe a cancellation of these documents and for recovery of the properties with past and future mesne profits. Defendants 2 and 6 resisted the suit and contended that Exs. B to D are fully supported by consideration and family necessity and that they are not liable to be set aside. Plaint Items 5 and 6 were also stated to be the self-acquisitions of Defendant 13. The suit having been instituted more than three years after Plaintiffs 1 to 3 had attained majority and long after the expiry of 12 years from the respective dates of the documents, a plea of bar of limitation was also raised by the contesting Defendants. The lower Court upheld this plea and also the contention that the? documents are supported by consideration and family necessity, and accordingly dismissed the Plaintiffs'' suit. Hence this appeal.

The question of limitation was argued by both sides as a preliminary point in this appeal. It is clear from the allegations in the plaint that the Plaintiffs have instituted the suit on behalf of their joint family. It is expressly prayed in the plaint that the Plaintiffs may be allowed to recover possession of the properties from Defendants 1 to 12 for and on behalf of the joint family. The learned advocate for the Respondents argues that since the cause of action for the suit was one which could be exercised by any member of the joint family, the failure on the part of Plaintiffs 1 and 2 to impeach the plaint alienations within the prescribed period of limitation operates as a bar even as against the other members who attained majority only subsequently. It is admitted in the plaint that Plaintiff 1 was born on 13-3 1086 and that Plaintiff 2 was born on 1-9-1088. Thus these Plaintiffs attained majority on 13-3-1104 and 1-9-1106 respectively. Exhibit D is the last of the alienations impeached in the plaint, and this sale deed was executed on 17-12-1097. The normal period of limitation to impeach even this document was over by 17-12-1109. Plaintiffs 1 and 2 did not seek to impeach the plaint alienations at any time within 12 years from the dates of the respective documents or within three years of the dates of their attaining majority. Thus it is clear that so far as these Plaintiffs are concerned,the right to impeach the plaint alienations had become barred long prior to the date of the present suit instituted in the year 1116. The question is whether this bar of limitation operates as a bar against the entire joint family of the Plaintiffs. If the suit is governed by part 1 of Section 8, Limitation Act, the bar of limitation will operate against all the Plaintiffs. On the other hand if Part II of the Section is to govern the suit, the suit will be within time.

Section 8, Limitation Act, is to the effect that where one or several persons jointly entitled to institute a suit is under a disability and a discharge can be given without the concurrence of such person, time will run against them all. and where no such discharge can be given time will not run 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. The term ''discharge'' used in the section is not confined to the discharge of a pecuniary liability but has 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 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. Any 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 member in the joint family is not necessary for effecting such a valid discharge by the adult member or members in the family. It follows, therefore, that the right of suit available to junior members of a joint family to set aside alienations made by the Manager is governed by the first part of Section 8, Limitation Act and that, when any of them is under no disability to institute such a suit, the period of limitation will run against all the members in the joint family. This matter is concluded by authority so far as this Court is concerned. In Pankajakshi v. Krishnan 1947 T.L.R. 320, it was ruled by a Fall Bench of the Travancore High Court that:

Where no suit had been Instituted at all but 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 allowed the cause of action to become barred, the loss of the cause of action end the right of suit is the loss of the entire tarwad and no subsequent suit could be brought by anybody else.

To the same effect is the principle laid down by fee Full Bench decision of the Cochin High Court in Ikkanda Warrier v. Parameswaran Elayad 38 coch. 379, where it was held that the members of the family or the tarwad as the case may be, are persons entitled to institute a suit within the meaning of Section 8, and limitation will run from the date of the cause of action if at that time there was in the family or tarwad a person who could give a valid discharge. The question has been fully discussed in these two rulings, and we do not think that it requires reconsideration. On an application of the principle enunciated in these rulings to the facts of the present case, it is clear that the right of all the Plaintiffs to impeach the plaint alienations has become barred on account of the failure of Plaintiffs 1 and 2 to exercise that right within, the limitation period that wag available to them. Accordingly we uphold the finding of the lower Court that the Plaintiffs" suit is barred by limitation.

In view of the finding recorded above, the other questions involved in the case do not arise for consideration.

In the result the decree of the lower Court is confirmed and this appeal is dismissed with costs.