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Thanuvan Sivanandan and anr. Vs. Bhagvathi Janaki and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 50 and 89 of 1956 (T)
Judge
Reported inAIR1958Ker228
ActsLimitation Act, 1908 - Sections 7; Indian Soldiers Litigation Act - Sections 3 and 11; Travancore Act, 1116
AppellantThanuvan Sivanandan and anr.
RespondentBhagvathi Janaki and ors.
Appellant Advocate T.K. Narayana Pillai and; K. Hrishekeshan Nair, Advs.
Respondent Advocate R. Narayana Pillai, Adv. for Respondents 1 to 8
DispositionAppeals dismissed
Excerpt:
- - 2. we are satisfied that both the appeals must fail on the ground of limitation. they failed to sue for cancellation of the sale deed and the plaintiff cannot therefore take advantage of the fact that she attained majority only in 1121. coming to a. it is unnecessary to decide this question as the suit must fail on the ground of limitation......9 in o. s. no. 128. they contended that item no. 1 did not belong to the sub-tarwad and that the sale deed was supported by consideration and necessity. the court below found that the sale deed was supported by consideration and necessity except as regards a sum of 250 fanams. it was also found that the two suits were barred by limitation.both the suits were dismissed and the respective plaintiffs have preferred these appeals. the heirs of kutti ohinnan who are respondents 1 to 8 in both the appeals have preferred a memorandum of cross-objections objecting to the finding against them. the appeals were heard together.2. we are satisfied that both the appeals must fail on the ground of limitation. the sale deed in question was executed on 24-7-1109 and both the suits are filed beyond a.....
Judgment:

1. These appeals arise from Original Suits Nos. 124 of 1123 and 128 of 1122 of the District Court of Trivandmm. The two suits were by different junior members of an Ezhava sub-tarwad consisting of one Devayani Bhavani and her children. She had two sons Sivanandan and Divakaran and three daughters Visalakshi, Krishnamma and Savitri. Divakaran was the eldest of the children.

Devayani Bhavani and Divakaran together sold the plaint schedule properties to one Kutti Ohinnan under Ext. IV dated 24-7-1109 and this sale deed was sought to be set aside in the two suits on the ground that the same was unsupported by consideration and necessity. O. S. No. 124 of 1123 was instituted by Sivanandan, the second son of Bhavani and O. S. No. 128 of 1122 by Savitri, her youngest daughter. According to the plaintiffs in the two suits, all the items of immoveable properties sold under Ext. IV belonged to the sub-tarwad.

Kutti Chinnan's heirs are defendants 1 to 8 In O. S. No. 124 and Defendants 1 to 9 in O. S. No. 128. They contended that item No. 1 did not belong to the sub-tarwad and that the sale deed was supported by consideration and necessity. The court below found that the sale deed was supported by consideration and necessity except as regards a sum of 250 fanams. It was also found that the two suits were barred by limitation.

Both the suits were dismissed and the respective plaintiffs have preferred these appeals. The heirs of Kutti Ohinnan who are Respondents 1 to 8 in both the appeals have preferred a memorandum of cross-objections objecting to the finding against them. The appeals were heard together.

2. We are satisfied that both the appeals must fail on the ground of limitation. The sale deed in question was executed on 24-7-1109 and both the suits are filed beyond a period of 12 years from that date. So far as A. S. No. 89 of 1956 is concerned, though the plaintiff in that suit be-came a major only in 1121 that fact cannot save the suit from the bar of limitation, as the suit was one instituted on behalf of the sub-tarwad of which she is a junior member and as there were other junior members who were minors on the date of the transaction but who attained majority more than three years before the date of the institution of the suit.

They failed to sue for cancellation of the sale deed and the plaintiff cannot therefore take advantage of the fact that she attained majority only in 1121. Coming to A. S. No. 50, the plaintiff claimed exemption from the bar of limitation on the ground that he was a soldier in the Indian Army from 20-3-1941 to 7-8-1947 corresponding to 7-8-1116 and 22-12-1122 respectively. The exemption claimed is under the Indian soldiers (Litigation) Act VII of 1116 of Travancore of which Section 11 provides :

'In computing the period of limitation prescribed by the Travancore Limitation Act (VI of 1100) or any other law for the time being in force for any suit, appeal or application to any court, any party to which is or has been an Indian soldier, the time during which the soldier has been serving under war conditions or under any special condition's since the 2nd day of September 1939 shall be excluded.'

That the plaintiff-appellant was a soldier serving in the Indian Army between 7-8-1116 and 22-12-1122 was not disputed but the contention was that this fact alone is not sufficient and that there should be proof that he was serving under war conditions or under special conditions during the relevant period. The circumstances under which an Indian soldier should be deemed to be serving under special conditions or war conditions are stated in Section 3 of the Act which is extracted below:

'For the purposes of this Act, an Indian soldier shall be deemed to be or, as the case may be, to have been serving--

(a) under special conditions -- when he is or has been serving under war conditions, or overseas, or at any place in Persia, Tibet, Afghanistan, Kashmir, Nepal or China, or with any unit the headquarters of which are situated at any place in Chitral, Waziristan, the North-west Frontier Province or British Baluchistan which is more than fifty miles distant by road from the nearest railway station;

(b) under war conditions -- when he is or has been, at any time, during the continuance of any hostilities declared by the Government of India by notification in the Gazette of India to constitute a state of war for the purposes of the Indian Soldiers (Litigation) Act, IV of 1925 Or at any time during a period of six months thereafter--

(i) serving out of India,

(ii) under orders to proceed on field service,

(iii) serving with any unit which is for the time being mobilised, or

(iv) serving under conditions which, in the opinion of the prescribed authority, preclude him from obtaining leave of absence to enable him to attend a court as a party to any proceeding, or when he is or has been at any other time serving under conditions service under which has been declared by the Government of India by notification in the Gazette of India to be service under war conditions; and

(c) overseas -- when he is or has been serving in any place outside India (other than Ceylon) the journey between which and India is ordinarily undertaken wholly or in part by sea.' According to the appellant he was serving under war conditions as specified in clause (3) of Section 3 (b) i.e. serving with a unit which for the time being was mobilised. As pointed out by the learned District Judge the Question whether he was serving with any unit which was being mobilised is a question of fact which has to be proved by the plaintiff. There is no satisfactory evidence on the point. The appellant relies on Ext. B, the certificate of discharge issued to him.

This does not show that he was serving with any unit which was being mobilised throughout this period. Learned counsel for the appellant relied on the following entries in Ext. B viz., 'Unit -- Demob Centre, the Madras Regiment' and 'Released by order of Officer Commanding, Demob. Centre the Madras Regiment in consequence of Indian Army on demobilization.' From the fact that demobilisation took place only on 7th August 1947 it cannot be assumed that the Unit in which he was serving was being mobilised throughout the whole period.

'Demobilisation' in the context only means discharge from the Army and it cannot be assumed from the use of the expression demobilisation that the unit was in a state of mobilisation until that date. The meaning of the expression 'to mobilise' in relation to the Army means to make armed forces ready for war. A new recruit has to pass through different stages of training and even then the Unit may not be mobilised for war at all.

That the particular unit to which the plaintiff belonged was in a state of mobilisation should have been proved by production of a proper certificate from the military authorities. The appellant sought to claim exemption from limitation on the basis of Exts. B to D. As pointed out by the learned Judge these documents are of no use in proving this point. From the records produced by the plaintiff it is seen that on several occasions he was granted leave to come home. Exts. IX, X and XVII which are documents in the execution of which the plaintiff took part show that he was in Trivandrum in 1120, 1121 and 1122.

This is inconsistent with the case of the Unit being in a state of mobilisation. Thus the evidence adduced by the plaintiff is insufficient to show that he is entitled to claim exemption from limitation under section 11 of Act VII of 1116. The suit having been instituted beyond a period of 12 years from the date of the sale deed, it must be held that it is barred by limitation.

3. In view of the conclusions we have reached on the question of limitation it is unnecessary to consider the other grounds raised by the appellant viz., whether the sale deed is unsupported by consideration and necessity. The contesting respondents have also raised the question of consideration and necessity in respect of a small part of the amount covered by the sale deed regarding which the learned Judge's finding is against them. It is unnecessary to decide this question as the suit must fail on the ground of limitation.

4. In the result the decrees passed by thecourt below are confirmed and the two appealsare dismissed with costs. The memoranda ofcross-objections are also dismissed but withoutcosts.


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