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Rajamma Vs. Karthiayani Amma - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberAppeal Suit No. 358 of 1955 (E)
Judge
Reported inAIR1960Ker46
ActsLimitation Act, 1908 - Sections 7
AppellantRajamma;karthiayani Amma
RespondentKarthiayani Amma;rajamma
Appellant Advocate P. Govindan Nair, Adv.
Respondent Advocate K.K. Mathew, Adv.
DispositionAppeal dismissed
Cases ReferredAmbalika Nambishtathiri v. Velayu
Excerpt:
.....to file suit challenging alienation - no fraud or collusion on part of such members - limitation will start running against all members of family - younger member of family later on cannot institute suit for such declaration. - - the real effect of these decisions as well as some other decisions bearing on the point was considered in aiyappan krishnan v. if in the absence of fraud or colusion the junior members failed to take advantage of the opportunity, they should be deemed to have raised the objection and failed. suits may thus go on ad infinitum, thus bringing about a calamitous undermining of the financial credit of the karanavan as well as the members of the tarwad. velayu-dhan, 24 tray lj ,1414: irrespective of the question whether the opportunity was put to its best use..........principle has been lucidly enunciated by his lordship sankaran j. as follows: 'the right of junior members of a joint family or an undivided tarwad to impeach alienations made by the manager or karanavan 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 can 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 of 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.....
Judgment:

Anna Chandy, J.

1. This appeal is by the 6th defendant in O. S. No. 33 of 1122 on the file of the District Court, Mavelikara.

2. The suit was by a junior member of a Marumakkathayarn tarwad for setting aside certain alienations on the ground of want of consideration and necessity. One such alienation was Ext. C executed by the first defendant, (the mother of the, plaintiff and defendants 2 to 4) in favour of the 6th defendant.It is dated 2-8-1103. It is not disputed that the second defendant, who is the elder brother of the plaintiff, altained majority in 1118. Ext. A partition deed gives his age as three in 1101. This suit was filed in 1121. It was alleged in the plaint that the second defendant had left the State in 114, before he attained majority and was not heard of thereafter and the plaintiff is not even sure if he was alive. By way of reply the 6th defendant stated that he is not aware whether the second defendant had left the State in 1114 as alleged. No plea of limitation was raised by the 6th defendant. But the 5th defendant contended that the suit was not maintainable as the second defendant who is elder to the plaintiff has not sought to set aside the alienation, and that the suit is barred by limitation. Defendants 15 and 17 also raised similar contentions. The plaintiff in his rejoinder stated that the suit was not barred by limitation as the second defendant had left the Slate. Issue 7 regarding limitation was raised on these pleadings, and the learned Sub-Judge found that there was no satisfactory evidence to prove that the second defendant was out of Travaucore from the year 1114 and also held that the suit was barred by limitation by the application of S. 8 of the Travaucore Limitation Act.

3. In this appeal the correctness of the finding that the plaintiff has not proved that the second defendant was absent in the State ever since 1114 is attacked, and it is argued that so long as the second defendant was not available to exercise the right of the tarwad to impeach the alienation, this suit by the plaintiff is not barred. Reliance was placed in support of this position on the decision reported in Eravi Vasudevaru Naraboodirjpad v. Kochu-kunju Narayanan, 28 Trav LJ 1257.

4. In the nature of the evidence its this case, th finding of ihe learned Sub-Judge that it is not proved that the second defendant had left the State in 1114 and was not heard of thereafter, has only to be upheld. In the chief examination, the plaintiff made a vague statement that before she could remember matters, the second defendant left the place, and when cross-examined she admitted that she got that information from her husband and that she is not sure whether the second defendant is alive at mesent. Her marriage took place only in 1121 and it is not likely that her husband himself court have had any personal knowledge about the movements of the second defendant prior to that. On the other hand, the fifth defendant had given positive evidence that the second defendant is his immediate neighbour, that the allegation that he left the country is false, and that he was meeting him resularly at the time of the filing of this suit and before that. Even granting that the second defendant was not available in the State to file a suit within time that would not affect the applica-tion of Section 8 o the Limitation Act. The principle that

'where no suit has been instituted at all, but one available member of the tarwad who was sui juris and who could have challenged by a suit the alienation, but did not file a suit in time 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'

has been recognised by the Travancore High Court in Nani Pankajakshi v. Kunjam Krishnan which was a Full Bench decision reported in 1947 Tray LR 320. The same view has been taken by the Tra-vancorc-Cochin High Court in a full bench decision in Ramachandran Potti Narayanan Potti v. Narayanan Sekharan, MR 1950 Trav-Co. 57. The underlying principle has been lucidly enunciated by His Lordship Sankaran J. as follows:

'The right of junior members of a joint family or an undivided tarwad to impeach alienations made by the manager or karanavan 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 can 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 of 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 V the first part of Section 8, Limitation Act, Travancore, corresponding to Section 7, Indian 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.'

The correctness of this view was reaffirmed by 'ho Travancore-Cochin High Court in Radhalaishan Menon v. Chandrasekhara Menon, 1955 Ker L. T. 681: (AIR 1956 Trav-Co 78) and by the Kerala High Court in Gopalkrishna Pillai v. Narayanan, 1958 Ker LT 562: (AIR 1959 Kerala 406) reported on the basis of the decisions reported in Mundan Raman v. Ramasnbba Aiyan Kulathoor Aiyan, 21 Trav LR .41 and 28 Trav LJ 1257 and argued that unless there has been a bona fide exercise by a junior member of the tarwad of the opportunity to contest the validity of a decree or a debt against the tarwad, any junior member of a tarwad may by a separate suit impeach the binding character of the decree or debt which results in the decree. The real effect of these decisions as well as some other decisions bearing on the point was considered in Aiyappan Krishnan v. Chalco Geevarghcse, 30 Trav LJ 872 and it was held

'that the effect of a long course of decisions of this court is that the junior members of a tarwad must be afforded an opportunity to have the validity of the bond or decree obtained agains the tarwad tested On the ground of want of consideration and necessity. If in the absence of fraud or colusion the junior members failed to take advantage of the opportunity, they should be deemed to have raised the objection and failed. Thereafter they could not question the validity of the decree in subsequent proceedings. Otherwise it will be open to each junior member as he grows up to file a suit contesting the validity of the decree on the ground that there has not been an actual or bona fide or rigorous exercise of this opportunity. Suits may thus go on ad infinitum, thus bringing about a calamitous undermining of the financial credit of the karanavan as well as the members of the tarwad. As was held in Ambalika Nambishtathiri v. Velayu-dhan, 24 Tray LJ ,1414: 'irrespective of the question whether the opportunity was put to its best use or not, no other opportunity can be given to the junior members tore-agitate the question in a subsequent suit or proceedings.'

In this case there is a total absence of any allegation of fraud or collusion on the part of the second defendant, who refrained from questioning the validity of Ex. C. within time, and as such the toward has lost its right to challenge the document.

In the result, the appeal fails and is dismissedwith costs.


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