LEKSHMI AMMA Vs. KUNJU KUNJAMMA

JUDGEMENT

(1.) Additional plaintiffs 7 to 11 have preferred this appeal against the lower courts order dismissing the execution petition filed by them on 12.3.1123 as being barred by limitation. Originally there were two plaintiffs in the case who were the owners of the equity of redemption of the suit properties. By a partition arrangement in their family this right is stated to have devolved on the 2nd plaintiff alone. The decree in the case is for redemption of the properties from the defendants who are in possession of the same as mortgagees. The final decree was passed on 11.6.1103. The present appellants had instituted a suit O.S. No. 10/1102 in the Quilon District Court against the 2nd plaintiff in the present suit and had obtained a decree against him. In execution of that decree they attached his rights under the present decree and sold the same in court auction and themselves purchased such rights on 27.2.1121 with his legal representatives on record. Under Ext. C dated 7.1.1123 these appellants obtained formal delivery also of such rights. It is on the strength of such purchase and delivery that they have now sought to execute the decree as additional plaintiffs 7 to 11. The defendants in the case raised the objection that the decree has become barred by limitation. In answer to this objection the additional plaintiffs 7 to 11 stated that before the decree became time barred, the 2nd plaintiff decree holder had died in the year 1106 leaving additional plaintiffs 3 to 6 as his legal representatives and that since the additional 6th plaintiff continued to be a minor till 7.1.1121 the period of limitation for the execution of the decree was suspended till that date and as such the present execution petition filed on 12.3.1123 and which is the first execution petition, is within time. The lower court found that the additional 6th plaintiff was born on 7.1.1103 that there was a suspension of the period of limitation for the execution of the decree till the 6th plaintiff attained majority and that therefore the decree in the case has not become barred so far as additional plaintiffs 3 to 6 are concerned. At the same time the lower court held that the benefit arising on account of the minority of the 6th plaintiff could be availed of by plaintiffs 3 to 6 only and not by the additional plaintiffs 7 to 11 who have acquired the rights of plaintiffs 3 to 6 under the decree. The respondents have not objected to the lower courts finding that the decree has not become barred by limitation so far as plaintiffs 3 to 6 are concerned. But in the objection memorandum filed on behalf of the respondents, an objection is raised to the lower courts findings that the 6th plaintiff had attained majority only on 7.1.1121.

(2.) The objection raised to the finding on the question of the age of the 6th plaintiff may be disposed of at the outset. It is seen that there is very strong and convincing evidence in support of the lower courts finding that the 6th plaintiff was born on 7.1.1103 and that he attained majority only 7.1.1121. To Ext. F partition deed executed by the members of the tarward of plaintiffs 3 to 6, on 31.1.1101, the present 6th plaintiff is not a party and it shows that he was not born at that time. Ext. H is copy of the Admission Register of the School in which the 6th plaintiff had his primary education. In this document his date of birth is given as 7.1.1103. There is nothing to doubt the correctness of this statement. Ext. 1 mortgage deed dated 9.11.1119 wherein the 6th plaintiff is described as a major cannot by itself destroy the significance of the evidence furnished by Exts. F and H. There are other documents Exts. D, E and C also, going to show that the 6th plaintiff was not born prior to the year 1103. In view of the documentary evidence thus adduced in the case, the contention of the defendants that the 6th plaintiff was born prior to the year 1103, cannot prevail. We would therefore confirm the finding of the lower court that the 6th plaintiff was born on 7.1.1103 and that he attained majority only on 7.1.1121.

(3.) Then there is the question of limitation which has been found by the lower court against plaintiffs 7 to 11. The position taken up by the appellants is that the question of limitation in this case is governed by S.8 of the Travancore Limitation Act corresponding to S.7 of the Indian Limitation Act. This section lays down that where one of several persons jointly entitled to make an application for the execution of a decree is under a disability and where about his concurrence the other decree holders cannot give a complete and valid discharge, time will not run as against any of them until one of them becomes capable of giving such a discharge without the concurrence of the others or until the disability has ceased. In the present case the decree is one for redemption and plaintiffs 3 to 6 were joint decree holders. The decree had to be executed and the mortgage redeemed as a whole. It follows therefore that without the concurrence of the 6th plaintiff the other plaintiffs could not give a valid discharge and that time for the execution of the decree could not run as against any of them during the continuance of the minority of the 6th plaintiff. To this extent the finding of the lower court also is in favour of the position taken up by plaintiffs 7 to 11.