KOLANDAVEL GOUNDER AND ANOTHER Vs. CHINNAPPAN AND OTHERS.

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiffs whose suit for partition and separate possession of their two-third share in the suit properties has been dismissed by the lower appellate court on the ground of limitation, reversing the decree in their favour by the trial court.

(2.) There is no dispute that the Article of the Limitation Act which is applicable is Article 126. Article 126 provides for a period of twelve years from the time when the alienee takes possession of the property. The cause of action arises with the passing of possession. In this case the first plaintiff was born in 1928, the second plaintiff in 1931, and the third defendant, on 13th August 1937. Reliance is placed by the plaintiffs on Ss. 6 and 7 of the Limitation Act. The suit was filed on 9th January 1958, and it is contended that the 12 year period, in view of the minority of the sons, should be counted from the date when the youngest of the sons, that is, the third defendant, became major. Alternatively it is contended that the first plaintiff became manager of his family only in April 1948 on the death of his father, when only he was competent to give discharge on behalf of his brothers also, that, therefore, the time would commence to run against all of them only from April 1948, and that the plaintiffs are entitled to the period of 12 years from April 1948. This contention ignores S. 8 of the Limitation Act. Section 8 provides:

(3.) In this case the first plaintiff became manager of the family in April 1948, on the death of his father. He had become major in 1946, and the second plaintiff was a major in 1949. The first plaintiff as manager was even in 1948 competent under the personal law to give a valid discharge on behalf of his brothers without their concurrence as required under S. 7 of the Limitation Act. He should, therefore, in any event, have filed the suit within three years from the death of his father, when he became manager. It is in evidence in this case that, so far as the third defendant is concerned, he has relinquished his interest in favour of the first and second defendants; but that does not affect the position.