NILAKANTAN THAMPI Vs. KUNJUKRISHNA PILLAI

JUDGEMENT

(1.) These appeals arise out of a suit instituted by a junior member of a Marumakkathayam Tarwad for cancellation of a court sale and a private sale of Tarwad properties and for recovery of the same with mesne profits. The suit was allowed and appeal Suit No. 487 of 1120 is brought by the court auction - purchaser and Appeal Suit No. 544 of 1120 by the alienee. The second defendant is the mother, the third and fourth defendants and the plaintiff are her sons in the order of seniority. The plaint properties consisting of three items were acquired in the name of the mother, as claimed by the plaintiff with sub-Tarwad funds. Over items 1 and 2 the sub-tarwad claim is only of a mortgage right and over item 3, which is only five cents out of a larger area of thirty-five cents, the sub-tarwad claim is for the entire rights. It was contended by the defendants in the lower court appellants here - that the properties were the self acquisitions of the second defendant. The finding went against them and, in appeal before us, its correctness was not challenged. These appeals must therefore be dealt with on the footing that the plaint properties are the properties of the sub-tarwad consisting of the second defendant mother and her children, the third and fourth defendants and the plaintiff.

(2.) It was strenuously contended before us by the appellants learned Advocate that the suit in respect of the court sale (item 3) is barred by limitation and that the decree in respect of items 1 and 2 is unsupportable as it stands. We shall first deal with A.S. No. 487 of 1120 in which the question of limitation is raised. In order to appreciate the question of limitation a few more facts have to be stated. On 2.12.1086 the second defendant executed Ext. IX hypothecation deed on which Ext. E decree was obtained on 24.12.1093. In execution the five cents comprising item 3 were sold on 31.9.1105 and delivered over to fifth defendant on 31.3.1108 after overruling an objection raised by the third defendant in execution (vide Ext. XX sale certificate and Ext. F execution diary). The present suit was filed on 15.10.1114 over nine years after the date of sale and six years after the date of delivery. The plaintiff claimed that he had three years time to file the suit after attaining majority. On hearing Counsel for both sides we are inclined to think that the appellants must succeed on the question of limitation.

(3.) The bond was executed by and the decree obtained against the second defendant who was the sole adult member of the sub-tarwad on the date of the decree. The third defendant attained majority in the year 1099, the forth defendant in the year 1102 and the plaintiff in the year 1111, but neither defendant 3 nor defendant 4 ever cared to file any suit and the plaintiff himself has waited for three years before he instituted the suit in the year 1114. It is in the light of these facts that we have to determine the question of limitation.