SUBRAMANYAM Vs. VENKATARAMAN

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed the suit in forma pauperis for partition and separate possession of his half share in plaint B schedule properties and for setting aside the various transfers and alienations in favour of defendants 3 to 18. The plaintiff and the first defendant are brothers, being sons of one Pichu Iyer. The second defendant is the widow of Pichu Iyer and the mother of the plaintiff. Defendants 3 to 18 are the alienees of the major portion of the suit properties. The alienations were by the mother on behalf of the plaintiff and the first defendant, and some of them were by the first defendant himself. The case of the plaintiff was that these sales were not for legal necessity and that therefore they were not binding on the plaintiff. The defendants contended that the sales effected in their favour were true, valid and for legal necessity and therefore binding on the plaintiff. They also contended that the suit was barred by limitation as it had not been filed within three years of the attainment of majority by the first defendant. The trial court gave the finding that the sales effected in favour of defendants 3 to 18 were not binding on the plaintiff's share, but all the same, dismissed the suit on the ground that it is barred by limitation, except in regard to items 19 and 27 to 31 against defendants 1 and 15.

(2.) THE first defendant, the brother of the plaintiff, was born on 6-3-1936 as is seen from Ex. A. 7. The plaintiff was born on 29-7-1940 as is seen from Ex. A. 8. Pichu Iyer died on 14-6-1943. The suit was filed on 5-11-1959. The defendants contended that the suit should have been filed within three years after the attainment of the age of majority by the first defendant, that is, the suit should have been filed on or before 6-3-1957, and the suit filed on 5-11-1959 is clearly barred by limitation. On the other hand, the plaintiff contended that he attained the age of majority only on 29-7-1958, that he could have filed a suit within three years thereafter and that therefore the suit filed on 5-11-1959 was clearly in time. It is very well settled that a suit to set aside an alienation filed more than three years after the attainment of majority by the elder brother who was the manager of the family would be barred by limitation under Section 7 of the Limitation Act, 1908, even though the suit was filed within three years of the attainment of majority of the younger brother. It will be seen that after the first defendant became a major, he would be the Manager of the joint family and that he could give a valid discharge. He having not filed the suit within three years, the younger brother could not file the suit thereafter. We need refer only to the decision in doraiswami Sirumadan v. Nondisami Saluvan, (1913) 25 Mad LJ 405=ilr 32 Mad 118 (FB), which is a decision by a Full Bench of this court. In that case, a suit by two brothers to set aside a sale effected by their mother as guardian during their minority was dismissed as barred by limitation. At the date of the institution of the suit, the first plaintiff was 23 years old and the second plaintiff was 20 years old. Their case was that the suit was not barred by limitation as it was brought within three years of the second plaintiff attaining the age of majority. But, the Full bench held that the claim being a joint claim and the suit having been brought more than three years after the attainment of majority by the elder brother (who was the Manager of the joint family, competent to give discharge), the claim was barred by limitation even in respect of the share of the younger brother who had not yet completed 21 years. The present suit is, therefore, barred.

(3.) WE accordingly dismiss this appeal; but in the circumstances of this case, there will be no order as to costs.