MOHANAN NAIR Vs. RAMAKRISHNA PILLAI

JUDGEMENT

(1.) THE plaintiffs are the appellants.The suit by the plaintiffs was one for setting aside a sale deed dated 5th June 1958 executed by defendant No.4 in the suit who was at the relevant time the Karanavathy of a Marumakhathayam thavazhi.The said sale deed was executed by defendant No.4 not only for herself but also for and on behalf of the first plaintiff who was then in existence.Under Ext.A -l alienation effected by defendant No.4 on 5th June 1958,two items were sold.The suit was resisted by the alienees.The suit was dismissed by the Trial Court and the dismissal was confirmed in appeal by the lower appellate court.Hence this Second Appeal by the plaintiffs.

(2.) THE plaintiffs are the children of defendant No.4.Under Ext.B -l partition of the year 1116M.E.certain properties were allotted to the thavazhi of defendant No.4.Under Ext.B -3 dated 2nd February 1953 there was a second partition in which the plaint schedule items were allotted to defendant No.4.On the date of Ext.B -3,defendant No.4 had not begotten any children.But subsequent to her obtaining the properties under Ext.B -3 but before their alienation,the first plaintiff was born.Going by the Marumakhathayam law settled by the Full Bench decision of this court in Mary v.Bhasura Devi,1967 KLT 430(F.B.) on the birth of the first plaintiff the property obtained by defendant No.4 in Ext.B -3 partition acquired the character of thavazhi property.Though I am inclined,with respect,to agree with the powerful dissent by two of the learned Judges with the above view,I do not think it proper at this distance of time to accede to the request of counsel for the contesting defendants to doubt the correctness of the view of the majority in that decision and to refer the question to a Division Bench afresh.The said decision has held the field in this court for the last thirty years and even before,but for some difference of opinion which was settled by that Full Bench.The mother acting for herself and as guardian of the first plaintiff son executed Ext.A -1 sale deed on 5th June 1958.Plaintiffs 2 to 6 were born after 5th June 1958 and but for the intervention of the first plaintiff they have no right to question the alienation Ext.A -l.The arrival of the first plaintiff subsequent to Ext.B -3 partition and before Ext.A -l,alienation give those plaintiffs also an opportunity to challenge the alienation.[See the discussion of the Full Bench on this aspect in Kumaraswamy Muthaliyar v.Rajamanikam Udayar 1966 KLT 361.The suit was filed by the plaintiffs against defendants 1 to 3,alienees on 17th,December 1977.Plaintiff's 2 to 6 were minors as on the date of suit.On 17th December 1977,the suit was filed within three years of the attaining of majority by the first plaintiff.The mother was impleaded as defendant No.4.On 21st June 1978,alienees defendants 1 to 3 filed a written statement to the effect that they had sold the properties in favour of another.They did not disclose the name of the alienee.On 6th November 1978 the plaintiff's filed I.A.2315 of 1978 for impleading the transferee.The plaintiffs pleaded that since the name of the transferee was not given in their written statement by defendants 1 to 3,plaintiffs had to make enquiries and they had discovered that defendant No.5 was the alienee and that the transfer was effected by defendants 1 to 3 on 26th September 1977,within three months of the date of the suit.The transfer was of item No.2 of the plaint schedule.On 13th December 1978 the Trial Court allowed the application for impleading and defendant No.5 was impleaded.The court did not indicate at that stage whether it was exercising its discretion under the proviso to S.21 of the Limitation Act.It also did not indicate as to the date on which the impleading defendant is to be deemed to have been made a party to the suit.The defendants including the subsequent alienee defendant No.5 disputed the age of the first plaintiff.In the plaint it was stated that the first plaintiff was 28 days old on the date of the transfer Ext.A -1.The defendants pointed out that Ext.A -l transaction gave the age of the first plaintiff as one year.Though a copy of an admission register was produced and marked on behalf of the plaintiffs as Ext.A -2,there was no proper evidence in support of the entries therein.But what is pointed out by counsel for the plaintiffs is that even if the first plaintiff was taken as one year old as on the date of Ext.A -l,the suit filed on 17th December 1977 was within three years of the attaining of majority by the first plaintiff.

(3.) THOUGH counsel for the defendants made an attempt to challenge the finding that on the day the suit was filed,it was within three years of the attaining of majority by the first plaintiff,I do not find any merit in that contention.The courts below,on the evidence and in the light of the recital in Ext.A -1 were clearly right in holding that the first plaintiff was alive on the date of Ext.A -l alienation and in view of the fact that the first plaintiff was alive,the plaintiffs as a whole are entitled to impeach the transaction Ext.A -l.