V.C.THANI CHETTIAR Vs. DAKSHINAMURTHY MUDALIAR

JUDGEMENT

(1.) THESE two second appeals involve an interesting question of law as to what is the period of limitation applicable to a suit filed by an alienee from a coparcener of an undivided share in joint family property for general partition. There is very little direct authority on the question. The Nayadu J. who referred them for decision by aDivision Bench of this court. These two appealsarise out of two suits for partition, O. S. No. 47of 1946 and O. S. No. 23 of 1945 in the court ofthe Subordinate Judge of Chingleput, filed in thefollowing circumstances. The properties in suitbelonged to a joint family. The following pedigree shows the relationship between members ofthis family.

(2.) THE learned Subordinate Judge disposed of the question of limitation thus : The Court sale to Rajamanickam was confirmed finally by the District Court on 15 -1 -1930. Thani Chettiar got a sale deed executed in his favour on 4 -1 -1929. So for each of these two persons limitation for a suit for partition and possession would run from the respective dates. Whether Article 120 or Article 144, Limitation Act is applicable, in either view, the suit would be barred. The learned District Judge held that whether Article 120 or 144 was the Article applicable, the suits were barred because the suit by Rajamanickam was brought more than 12 years after 15 -1 -1930, the date of the confirmation by court, and the suit of Thani Chetty was beyond 12 years from 4 -1 -1929, the date of the Official Receiver's sale deed. The plaintiffs relied on certain pleas which, according to them, would save them the bar of limitation. But all these pleas were overruled.

(3.) IT is necessary to remark on one important omission In the plaint and it may be neceessary to consider whether the fact so omitted has any material bearing on the question to be decided. We refer to the omission on the part of the plaintiffs to mention the suit for partition brought by Subbaraya, O. S. No. 18 of 1916 mentioned earlier in the judgment and the preliminary decree passed therein. Not only is there no mention of this On the other hand, throughout the plaint, the defendants are described as being members of an undivided family. It appears, however, that in the courts below the plaintiffs changed their case and indeed relied on the fact that as a result ofthe suit filed by Subbaraya, the family becamedivided in status. The learned trial Judge refused to permit the plaintiffs to change their case,as ail along the plaintiffs had been proceeding onthe footing that the family was undivided instatus.