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Kauna Panikkar and ors. Vs. Nanchan and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in78Ind.Cas.564
AppellantKauna Panikkar and ors.
RespondentNanchan and ors.
Cases ReferredChingacham Vittil Sankaran Nair v. Chingacham Vittil Gopala Memon
Excerpt:
limitation act (ix of 1908), schedule i, articles 44, 91, 144 - malabar law--tarwad--alienation by katnavan--suit to recover property, form of--limitation. - .....and as such are bound to set it aside before recovering the property. but can it be said that minors are parties in that sense? it has been held in the case of hindu mitakshara families that sons when minors are represented in a document through their guardian, they need not set it aside. (kovvuri thirupathi raju v. kovvuri venkataraju 40 ind. cas. 418 and ganesa iyer v. amirihasami odayar 44 ind. cas. 605; (1918) m.w.n. 892 : 28 m.l.t. 245. the principle that underlies the construction put forward by mr. t.e. ramachandra aiyar is that parties are bound by their own acts until they are set aside or cancelled but minors cannot act and, therefore, the mere addition of their names in the document cannot make the document their act which must be set aside. in this connection, we may.....
Judgment:

1. It has been held in Ghandu v. Kambi9 M. 208 : 3 Ind. Dec. 542, Unni v. Kunchi Amma 14 M. 26 : 5 Ind. Doe. 19, and followed in Ghappan v. Paru 15 Ind. Cas. 587 : 87 M. 420 : 13 M.L.T. 118, that the-members of a tarwad need no sue to set aside an alienation by the Karnavan but can sue to recover possession on the strength of title. In the latter case, one ground for the decision was that the alienation though not binding on the tarwad might be binding on the Karnavan. In this view Article 91 of the Indian Limitation Act would not be applicable to the present-case, but it is argued that, inasmuch as the Rarnavan purported to execute the document not only as Karnavathi, but also as guardian of the minor plaintiffs, consequently the members are parties to the document, and as such are bound to set it aside before recovering the property. But can it be said that minors are parties in that sense? It has been held in the case of Hindu Mitakshara families that sons when minors are represented in a document through their guardian, they need not set it aside. (Kovvuri Thirupathi Raju v. Kovvuri Venkataraju 40 Ind. Cas. 418 and Ganesa Iyer v. Amirihasami Odayar 44 Ind. Cas. 605; (1918) M.W.N. 892 : 28 M.L.T. 245. The principle that underlies the construction put forward by Mr. T.E. Ramachandra Aiyar is that parties are bound by their own acts until they are set aside or cancelled but minors cannot act and, therefore, the mere addition of their names in the document cannot make the document their act which must be set aside. In this connection, we may refer to Chingacham Vittil Sankaran Nair v. Chingacham Vittil Gopala Memon 80 M. 18 : 1 M.L.T. 412. Article 44 does not apply here as the alienation does not purport to be one by a guardian alone, but also by a Karnavathi, who, under certain circumstances, has authority to alienate a part altogether from her guardianship of minors. As neither Article 91 nor Article 44 is applicable. Article 144 must be applied and the suit is within time. The suit will, therefore, be remanded to the lower Court for disposal, after allowing plaintiffs time to amend the plaint and pay additional Court-fee if necessary. Costs will abide the result. The Court-fee in appeal will be refunded.


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