RAJAMMA Vs. KARTHIAYANI AMMA

JUDGEMENT

(1.) This appeal is by the 6th defendant in O. S. No. 33 of 1122 on the file of the District Court, Mavelikkara.

(2.) The suit was by a junior member of a Marumakkathayam tarwad for setting aside certain alienations on the ground of want of consideration and necessity. One such alienation was Exhibit C executed by the first defendant, (the mother of the plaintiff and defendants 2 to 4) in favour of the 6th defendant. It is dated 2-8-1103. It is not disputed that the second defendant, who is the elder brother of the plaintiff, attained majority in 1116, Ext. A partition deed gives his age as three in 1101. This suit was filed in 1121. It was alleged in the plaint that the second defendant had left the State in 1114, before he attained majority and was not heard of thereafter and the plaintiff is not even sure if he was alive. By way of reply, the 6th defendant stated that he is not aware whether the second defendant had left the State in 1114 as alleged. No plea of limitation was raised by the 6th defendant. But the 5th defendant contended that the suit was not maintainable as the second defendant who is elder to the plaintiff has not sought to set aside the alienation, and that the suit is barred by limitation. Defendants 15 and 17 also raised similar contentions. The plaintiff in his rejoinder stated that the suit was not barred by limitation as the second defendant had left the State. Issue 7 regarding limitation was raised on these pleadings, and the learned Sub-Judge found that there was no satisfactory evidence to prove that the second defendant was out of Travancore from the year 1114 and also held that the suit was barred by limitation by the application of S.8 of the Travancore Limitation Act.

(3.) In this appeal the correctness of the finding that the plaintiff has not proved that the second defendant was absent in the State ever since 1114 is attacked, and it is argued that so long as the second defendant was not available to exercise the right of the tarwad to impeach the alienation, this suit by the plaintiff is not barred. Reliance was placed in support of this position on the decision reported in 28 TLJ 1257 (Eravi Vasudevaru Namboodiripad v. Kochukunju Narayanan).