SANKARAN NAIR Vs. GOVINDAN

JUDGEMENT

(1.) The plaintiffs are the appellants. The suit is for recovery of Possession of the plaint schedule property 38 cents in extent after setting aside Ext. B1 assignment by the 3rd defendant and her husband to defendants 1 and 2. The five plaintiffs and defendants 3 and 4 are the members of a Marumakkathayam tarwad. Recovery is sought on behalf of the tarwad from defendants 1 and 2 strangers, who have obtained Ext. B1 assignment from defendant 3 and her husband. According to the plaintiffs the alienation as per Ext. B1 is not valid and binding on the tarwad for the reason that it is not supported by consideration and there was no necessity for the alienation of tarwad properties.

(2.) The defence to the suit is that Ext. B1 is supported by consideration and necessity and the same is valid and binding on the tarwad. There is also a plea of limitation raised by defendants 1 and 2. The Trial Court found that 30 cents out of the 38 cents alienated under Ext B1 belonged to the tarwad of the plaintiffs and defendants 3 and 4, the remaining 8 cents belonged absolutely to plaintiffs 2 and 3, the alienation is not supported by tarwad necessity, the 3rd defendant and her husband are not competent to transfer the 8 cents of land belonging to plaintiffs 2 and 3 and the alienation of the remaining 30 cents of tarwad property is invalid as opposed to S.25 of the Travancore Nair Act for the reason that it is not supported by necessity. The plea of limitation raised by the defendants was overruled on the ground that the suit has been filed within 12 years after the date of Ext. B1 alienation in favour of defendants 1 and 2. On these findings, the Trial Court granted a decree for recovery of possession of the property. In appeal, by defendants 1 and 2, the decree of the Trial Court was challenged only on the ground of limitation. The finding that the 8 cents of land out of the 38 cents transferred belonged absolutely to plaintiffs 2 and 3 and that the transfer is not supported by necessity were not challenged before the lower appellate court. The lower appellate court has however reversed the decision of the Trial Court in so far as it relates to the 30 cents of tarwad property and has dismissed the suit with respect to the same on its view that the suit not having been filed within three years after the attainment of majority by the 1st plaintiff is barred by limitation.

(3.) The only question now before me is as to whether the lower appellate court is right in its view that the suit for recovery of possession of the tarwad property on behalf of the tarwad is barred by limitation, The impugned alienation Ext. B1 is dated 19-8-1961 The suit was filed on 5-4-69 well within twelve years after the date of alienation. According to the lower appellate court, the suit is barred under Art.60 of the Limitation Act and the period of limitation is only three years from the date on which the 1st plaintiff attained majority. The 1st plaintiff was 24 years old on the date on which the suit was filed. Art.60 applies to cases where the suit is for setting aside a transfer of property made by a guardian of a ward and in such a case the period of limitation is 3 years after the plaintiff attaining majority. The present suit is not of the nature mentioned in Art.60. The suit is for recovery of possession of tarwad property alienated without necessity filed by the junior members who seek recovery on behalf of the tarwad. A Full Bench of this Court in the decision in Mathew v. Ayyappankutty ( 1962 KLT 61 ) following the decision in Chekku v. Puliasseri Parvathi ( AIR 1956 Mad. 634 ) has held that there is no necessity for a junior member of tarwad in impugning a transaction by its karanavan to file a suit to have the transaction set aside. He can ignore the transaction and recover possession of the property if the acts of the karanavan cannot be said to be within his powers. The Full Bench has held that a junior member can treat an invalid alienation of his tarwad property as void, ignore it and sue to recover the property. There is no need to bring a suit to set aside the alienation. It is clear from the Full Bench decision that a junior member bringing a suit for recovery of possession of tarwad property alienated without consideration or necessity need not seek to set aside the document and neither Art.59 nor Art.60 of the Limitation Act can have any application to such a suit for recovery of possession. The only article of the Limitation Act that is applicable to such a suit is Art.65 as per which the period of limitation is 12 years from the date on which possession of the defendant became adverse to the plaintiff. The lower appellate court has purported to follow the decision of a Full Bench of this Court in Ponnamma Pilla Indira Pilla v. Padmanabhan Channar Kesavan Channar & Others ( 1968 KLT 673 ) in the view that it took that the suit is barred by limitation for the failure of the 1st plaintiff to bring suit within 3 years after his attainment of majority. The decision of the Full Bench does not lend support to the proposition of law applied by the lower appellate court. The question before the Full Bench was with respect to a case falling under Art.142 of the Limitation Act 1908 as to whether there is a fresh starting point of limitation for a further period of 12 years from the date on which the 1st plaintiff in that case became capable of giving a discharge without the concurrence of the 2nd plaintiff. The Full Bench held that the extension of the period of limitation is only for 3 years from the date on which the Ist plaintiff became capable of giving a discharge. The decision is based on the principle of S.7 and 8 of the Limitation Act. No such question arises in this case. The suit itself is within 12 years after the date of alienation.