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Abdulla Kunjipokkarukutty and anr. Vs. Ayyappan Ravunny and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberA.S. No. 104 of 1968
Judge
Reported inAIR1973Ker192
ActsLimitation Act, 1908 - Sections 7 and 8; Hindu Law
AppellantAbdulla Kunjipokkarukutty and anr.
RespondentAyyappan Ravunny and ors.
Appellant Advocate T.L. Viswanatha Iyer, Adv.
Respondent Advocate V. Sankara Menon and M.K. Narayana Menon
DispositionAppeal allowed
Cases ReferredSreerama v. Krishnavenamma.
Excerpt:
.....first defendant was eldest male member - eldest male member was manager after death of 'kartha' - suit not filed within period of limitation - cause of action for family barred - held, plaintiff's suit barred by limitation. - - in this case the plaintiffs and the 1st defendant have clearly admitted in their evidence that 1st defendant's father was the previous manager of the family and that on his death in the year 1122 1st defendant became the manager of the family. clearly, therefore, when in respect of atransaction of property possession has to be received by the several members of the family, it is the kartha's duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as who are not. the soul of law..........of the two decrees mentioned earlier. the plaintiffs contended that the period during which the suit filed by the 1st plaintiff and his sister was pending must be excluded in reckoning the period of limitation for filing this suit, and secondly, as the plaintiffs were minors on the date when the property was taken delivery of they can file the suit within three years of their attaining majority and so the suit is, within time the appellants contended that the period during which the suit filed by the 1st plaintiff was pending cannot be excluded and even if that period is excluded the suit is beyond 12 years. again, the 1st defendant became a major and also the manager of the plaintiffs' joint family in 1122. he having not filed a suit within 3 years of his attaining majority or within.....
Judgment:

Viswanatha Iyer, J.

1. Defendants 4 and 5 are the appellants. The suit was to set aside certain decrees and execution proceedings and to recover the plaint schedule property with mesne profits. Plaintiffs 1 to 3 and defendants 1 and 2 are members of an undivided Hindu Mitakshara family, 1st defendant is the Manager and the property belongs to the family. It was granted to the plaintiffs' family by the Paliyam in consideration for services to be rendered. 2nd defendant's deceased paternal uncle and the 2nd defenant renewed a promissory note on 14-7-1111 in favour of the 3rd defendant. 2nd defendant's father's brother and his brother renewed another promissory note in favour of the 3rd defendant. 3rd defendant filed two suits on these promissory notes in the Village Court and obtained decrees and in execution of these decrees the property was sold in court auction and purchased by him. He took delivery of the property in execution thereof and then assigned the property to the 5th defendant who is now in possession. 4th defendant is the husband of the 5th defendant. These promissory notes were impeached as not supported by consideration andfamily necessity and therefore not binding on the family. The 1st plaintiff and his sister filed a pauper suit 14/55 for the reliefs now claimed. That suit was dismissed for non-payment of court-fee and the plaintiffs have again filed this suit for and on behalf of their family. The period of pendency of the earlier proceedings is sought to be excluded in reckoning the period of limitation for this suit. The mesne profits is claimed at 150 parahs of paddy and Rs. 400/- per year. On these allegations they have filed this suit for the reliefs mentioned earlier.

2. Defendants 4 and 5 contended that the 1st plaintiff had already sought for the reliefs now claimed and lost and hence is not competent to file the present suit again. The exclusion of the period of the pendency of the pauper suit cannot be allowed. The suit is barred by res judicata and also by limitation. It is also alleged that the claim of the plaintiffs, if any, is barred by adverse possession and limitation. The promissory notes on the basis of which the suits were filed were executed for consideration and family necessity and the decrees and the court sales that followed are banding on the family. Plaintiffs cannot now question them or seek to set aside them. The profits claimed are excessive. Defendants 4 and 5 have spent large amounts for improving the property. On these averments they contended that the suit must be dismissed.

3. The trial Court found that plaintiffs and defendants 1 and 2 are members of en undivided Hindu joint family. The court below also found that plaintiffs are entitled to challenge the decrees and execution proceedings and also the promissory notes which form the basis of the decrees. These decrees and execution proceedings that followed are found by the court below to be not valid and binding on the family. The promissory notes were also found to be not supported by family necessity. The suit was found to be not barred by limitation and therefore a preliminary decree was passed allowing the plaintiffs to recover Possession of the property. This appeal is filed against that decision,

4. All the findings of the court below are challenged in this appeal. The learned counsel for the appellants submitted first that the suit is barred by limitation. We will get to that question presently.

5. Ext. D-12 is the sale certificate in File No. 5 of 111 of the Village Panchayat Court. Chennamangalam, dated 15-10-1117. The portion of the property comprised in that sale certificate was taken delivery of under Ext. D-9 on 23-5-1118 by the 3rd defendant. Ext. D-13 is the sale certificate in File No. 58/112 on the file of the Village Panchayat Court. Chennamangalam, for the remaining portion of the property sold in court auction. That was also taken delivery of under Ext. D-10 on 23-5-1118. Thus, the plaintiffs' family was dispossessed of this property by these two delivery lists dated 23-5-1118. The 3rd defendant executed an assignment deed in favour of the 5th defendant and the 5th defendant was admittedly in possession on the date of suit. The present suit is filed on 27-2-1959, admittedly beyond 12 years of the date when the plaintiffs' family was dispossessed in execution of the two decrees mentioned earlier. The plaintiffs contended that the period during which the suit filed by the 1st plaintiff and his sister was pending must be excluded in reckoning the period of limitation for filing this suit, and secondly, as the plaintiffs were minors on the date when the property was taken delivery of they can file the suit within three years of their attaining majority and so the suit is, within time The appellants contended that the period during which the suit filed by the 1st plaintiff was pending cannot be excluded and even if that period is excluded the suit is beyond 12 years. Again, the 1st defendant became a major and also the manager of the plaintiffs' joint family in 1122. He having not filed a suit within 3 years of his attaining majority or within 12 years of dispossession, the plaintiffs are not entitled to sue within 3 years of their attaining majority, the reason being that 1st defendant, the manager of a joint Hindu family is competent to Give without the concurrence of the plaintiffs a valid discharge of the liability sought to be enforced in this case. The correctness of these rival contentions has to be examined.

6. The date of delivery of the property in execution of the two decrees is 23-5-1118 corresponding to 7th January 1943. The earlier suit (pauper suit) by the 1st plaintiff was filed on 19-10-1955 and was pending till 18-11-1958. Assuming, without deciding, that the plaintiffs are entitled to claim that the period during which that suit and the revision petition before this Court against the order of dismissal of the pauper application filed by the 1st plaintiff was pending must be excluded, even then they cannot succeed as that pauper suit itself was filed only on 19-10-1955, i. e., beyond 12 years of the date of delivery of the property under Exts D-9 and D-10. So, if the plaintiffs are not able to succeed on the second aspect of their' contention the ex-elusion of this period from 19-10-1955 to 18-11-1958 will not be of any avail. In other words, that suit itself having been filed only after 12 years of the date of the delivery of the property in execution of the decrees, the plaintiffs will not be able to succeed if they are not able to successfully contend that they have a right to institute the suit even after the expiry of 12 years from the date of delivery. It is proved that the suit has been filed within three years of their attaining majority. The property belongs to the joint Hindu family. Every coparcener of the joint Hindu family is entitled to file a suit to recover the property within 12 years of the date of dispossession. The plaintiffs being minors on that date can file a suit within 3 years of their attaining majority and they rely on Sections 6 and 8 of the Limitation Act of 1908 for this purpose.

Under Section 6 of the Limitation Act the period during which a plaintiff was a minor can be excluded in reckoning the period of limitation for filing any suit and Section 8 limits that right to 3 years on the plaintiff attaining majority. This is so if the right of suit is a separate right to each coparcener. But, as stated earlier, the property belongs to the joint family and the right which the plaintiffs claim is a right which the plaintiffs and other members of the family are jointly entitled to. When one of several persons jointly entitled to institute a suit is under any disability, if there is any other member who can give a valid discharge without the concurrence of the person under disability, the time will begin to run from the date when that member competent to give a discharge can institute a suit. This is the principle of Section 7 of the Limitation Act. In this case the plaintiffs and the 1st defendant have clearly admitted in their evidence that 1st defendant's father was the previous manager of the family and that on his death in the year 1122 1st defendant became the manager of the family. Can he give a discharge

7. The right of a manager or kartha of a joint family to represent the members of the family and his power and duty to take action which binds the members of the family in connection with all the matters regarding the management are now settled in the light of the Supreme Court decision in Sarda Prasad v. Jumna Prasad, (AIR 1961 SC 1074). The position of a manager is stated thus in that decision:--

'Under the Hindu Law the kartha of a Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly, therefore, when in respect of atransaction of property possession has to be received by the several members of the family, it is the Kartha's duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as who are not.'

Thus the 1st defendant being a joint claimant along with the plaintiffs could have accepted the performance of the obligation from the obligors, namely defendants 2 to 5, and give a discharge to them without the concurrence of the plaintiffs, when he became the manager of the family. In the Full Bench decision reported in Indira Pillai v. Kesavan Channar, (1968 Ker LT 673) = (AIR 1969 Ker 162) this Court has held that the several members of a joint family are joint owners of the family property and their title in a suit in respect thereof is a joint title and not several. They are undoubtedly persons jointly entitled to institute a suit in respect of the property within the meaning of Section 7. The 1st defendant could have accepted the performance of the obligation from the obligor. He could have done so without the concurrence of the other members of the family when he became the manager. Mathew J. speaking for the majority in that case held thus at page 682 :--

'When the law confers the capacity on one in a group to give a valid discharge without the concurrence of the others of an obligation owing to them jointly (in this case to restore the properties trespassed upon), there is no longer any reason for treating the case differently from the case where all the members of a group have ceased to be under disability, without any one of them acquiring the capacity to give a discharge without the concurrence of the others, except that in the former case the disability of the group to give a discharge ceases, when one in the group acquires the capacity to give it without the concurrence of the others; whereas in the latter the disability of the group to give a discharge ceases only when the last of the persons under disability ceases to be under it. As we have said, if in the latter case the suit must be filed within three years of the last of them ceasing to be under disability, we perceive no reason why in the former, the suit need not be filed within the same period, for. in both cases the real disability is the incapacity of the group to give a discharge of an obligation owing to them jointly though that arises from the minority, idiocy or insanity of all or some in the group; and in the one case the disability ceases when one in the group acquires the capacity to give a discharge without the concurrence of the others, and in the other when all in the group acquire the capacity to give the discharge jointly. The soul of law isreason and if there is no reason for making the distinction between the two cases, a strict adherence to the ambit of the expression 'cessation of the disability' in Section 8 as confined to the disability mentioned in Section 6, may not be the best means to understand the aim and purpose of the legislature.'

In this case admittedly the 1st defendant became a major and manager of the joint family in 1122, and therefore his disability ceased with that and the other members of the joint family cannot take advantage of Section 8 of the Limitation Act to any extent beyond three years of 1122.

8. The 1st defendant will not get 12 years from the date he became a major and manager. This is also concluded by the decision of the above Full Bench. The Full Bench held that under Section 8 an extension of limitation for a period of 3 years will be available only if the normal period of limitation prescribed to institute a suit is shorter than this 3 years. Even after the 1st defendant became a major and manager he had nearly 8 years to file a suit and he did not avail himself of that opportunity and the suit became barred on the expiry of 12 years from the date of delivery which was in 1118. So, the cause of action for the whole group including the plaintiffs was lost on the expiry of 12 years from the date of delivery.

9. But it is contended that there Is no proof to show that the 1st defendant acted as a manager of the family and therefore the failure of the 1st defendant to file a suit should not disentitle the plaintiffs from bringing this suit. The counsel for the respondents relied on the decision of the Bombay High Court reported in Bhikarchand v. Lachhamandas, (AIR 1938 Bom 392) and also Varada Pillai v. Sriramalu Reddiar. (AIR 1953 Mad 894) and contended that it is not enough to show that a particular person is the seniormost male member, it must further be shown that he was factually in management. The manager of a Hindu family occupies a position superior to that of other members in so far as he manages the family property or looks after the family interest on behalf of the other members. This right of management comes to him by birth and is regulated by seniority, and of course, it is nevertheless terminable by resignation and relinquishment and is not indefeasible. But the normal presumption being that the seniormost member is the manager, it should, generally speaking, be unnecessary to establish that he undertook acts of management. It is no doubt true that it can be proved by way of rebuttal that the seniormost member was never the actual manager of the family. But that ia a matter for pleading and proof.

In AIR 1938 Bom 392 the case proceeded on the basis that the evidence in that case did not warrant a conclusion that the eldest male member was factually in management. In Bhaktavatsaludu v. Venkatanarasimha, (AIR 1940 Mad 530) a Division Bench of the Madras High Court had occasion to consider this question as regards the position of an eldest male member of the joint family to give a discharge within the meaning of Section 7 of the Limitation Act. Their Lordships said at page 531 thus:--

'It seems to us that when there is an eldest member of a family, the presumption is that under the Hindu Law he is the manager of the family. If he is the manager, under Section 7, Limitation Act. discharge can be given without the concurrence of the other members of the family so far as the Madras Presidency is concerned, and at any rate that is the ratio decidendi of 38 Mad 118 ... ...

If anybody wants to displace the ordinary presumption that the eldest member acted as the manager and he was not in a position to give a valid discharge, it is incumbent on that person to prove the facts rebutting the said presumption'.

This decision was followed in Sreerama v. Krishnavenamma. (AIR 1957 Andh Pra 434). The decision of the learned single Judge in AIR 1953 Mad 894 has not been followed in later cases. See the decision in Natarajan v Karumana Gounder, ((1963) 76 Mad LW 199).

10. In this case the family is undivided, the 1st defendant is the eldest male member and in the absence of any evidence to show that somebody else was in factual management, the normal presumption that the eldest male member is the manager must apply to the facts of this case as well. In the plaint itself it is stated that the 1st defendant is the manager. That being so, the 1st defendant having failed to file a suit within the period of limitation prescribed under Article 144 of the Limitation Act. the cause of action for the family got barred and the plaintiff's suit filed in 1959 is barred by limitation.

11. In view of the conclusion it is unnecessary for us to go into the correctness of the other findings entered into by the lower Court and therefore we do not go into that question.

12. In the result, this appeal is allowed and the suit is dismissed. But, in the circumstances, we make no order as to costs in the Court below and here.


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