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V.A.S. Udayamuthier Vs. Shunmugam Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1935Mad431
AppellantV.A.S. Udayamuthier
RespondentShunmugam Chettiar and ors.
Cases ReferredRenodip Singh v. Parameswar Prasad
Excerpt:
- - 3. this paragraph clearly states that a person who was not born at the time of the alienations has no cause of action to institute a suit to set aside the alienations made by his father......case falls within the rule enunciated in the privy council decision and therefore the plaintiff's suit is barred by limitation.5. the other point argued relates to the binding nature of the alienations. whether the debts were incurred for necessary purposes binding on the family is a question of fact. the lower court has given its finding on a consideration of the evidence in the case. it has found that with respect to these alienations one of which was specially emphasised before me (ex. 13-b the consideration is binding on the family. the father has not gone to the witness-box to support the alienations. i think in the circumstances pointed out by the lower court that the finding that the alienations are binding on the family has to be accepted. i accept these findings and dismiss the.....
Judgment:

Madhavan Nair, J.

1. Plaintiff is the appellant. His suit was for general partition after setting aside the alienations made by his father defendant 1. It was held that with respect to some alienations his right was barred by limitation : (see alionations Exs. 9-a, 10 and 11) and with respect to others it was held that the alienations were binding on the plaintiff.

2. In second appeal, two points were argued. First, it was argued that the learned Judge was wrong in holding, that the right of the plaintiff to set aside the alienations Exs. 9-a, 10 and-11 was barred. To appreciate the argument on this point some facts have to be stated. These alienations were made' in 1900, 1903 and 1904 long before the plaintiff was born in August 1906. The plaintiff had an elder brother, deceased Ananthasubramania Ayyar, who was born in January 1898 before these alienations and he died an unmarried minor in July 1911. The question is whether in these circumstances the plaintiff's right to set aside the alienations is barred by limitation. Admittedly Article 126 Lim Act, applies to the case. The right to set aside the alienations within 12 years after they were made became barred during the time when the plaintiff was a minor bat he instituted the suit within three years after attaining majority. It is argued relying on Sections 6 and 8, Lim. Act, that his right is not barred by limitation. The point is covered by a decision of the Privy Council in Renodip Singh v. Parameswar Prasad 1925 PC 33. In that case, the. question arose with respect to the right, of plaintiff 4 therein who was born on 30th November 1900 after the date of the alienation which was made on 3rd. June 1893 to set aside the alienation.. Their Lordships of the Privy Council pointed out that his birth did not create a fresh cause of action or a new starting, point from which limitation should be reckoned. They proceeded to state thus:

To the contention that by the cited (Sections 6, 7 and 8) the period of limitation is extended for three years from the cessation of plaintiff's 4 minority. The answer is that by their express terms this extended period can only be claimed: by a person entitled to institute the suit at the. time from which the period of limitation is to be reckoned. Plaintiff does not come within this description, for at that time he was not in existence. He therefore is not entitled to the: three years' extension, and his suit is consequently barred.

3. This paragraph clearly states that a person who was not born at the time of the alienations has no cause of action to institute a suit to set aside the alienations made by his father. If so, since the alienations in this case were made long before the birth of the plaintiff, he has no right to institute the suit to set aside the alienations and he cannot avail himself of the privileges given to him by Section 6, Lim. Act. The learned advocate for appellant seeks to distinguish the Privy Council case having regard to some special features of the present case. I have already stated that the plaintiff had a brother called Ananthasubramania Ayyar who died a minor. It is argued that under Section 6, Clause 3, the plaintiff should be considered to be the legal representative of the deceased, minor and therefore he is entitled to take advantage of the extended period of limitation given in that case. No authority has been cited in support of the position that the plaintiff may be considered to be the legal representative of the deceased Ananthasubramania Ayyar. It may be mentioned that Ananthasubramania Ayyar in his time did not himself institute a suit. He lived and died a minor without instituting a suit to sot aside any of the alienations. In my opinion the plaintiff cannot be said to be the legal representative of the deceased Ananthasubramania Ayyar.

4. The right claimed by the plaintiff to sot aside the alienations is a right which ho has in himself as a member of the joint Hindu family and in exercising that right it is not right to say that he is exercising it as the legal representative of a deceased person, The definition in the Civil Procedure Code has been relied on in. support of this argument. But as I have pointed out it cannot be said having regard to the individual right which the plaintiff has that he represents the estate of the deceased person, and it cannot certainly be said that the estate has devolved on the death of Ananthasubramania Ayyar on the plaintiff, and that he has brought the suit in a representative character. Ananthasubramania Ayyar never instituted a suit at all. No doubt, if he had instituted a suit, the benefit of it will acrrue to the plaintiff as he is a member of the joint Hindu family. But that does not make him the representative of the estate of the deceased Ananthasubra-mani Ayyar. The distinction sought to be made not being applicable, I think the present case falls within the rule enunciated in the Privy Council decision and therefore the plaintiff's suit is barred by limitation.

5. The other point argued relates to the binding nature of the alienations. Whether the debts were incurred for necessary purposes binding on the family is a question of fact. The lower Court has given its finding on a consideration of the evidence in the case. It has found that with respect to these alienations one of which was specially emphasised before me (Ex. 13-b the consideration is binding on the family. The father has not gone to the witness-box to support the alienations. I think in the circumstances pointed out by the lower Court that the finding that the alienations are binding on the family has to be accepted. I accept these findings and dismiss the second appeal with costs.


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