KOTTIATH VEZHAYIL DEVAKI Vs. ARYAKANDI KUNHI KANNAN

JUDGEMENT

(1.) The only question which the Court is called upon to decide in this case is one of limitation. In 1913 a Malabar tar wad consisted of one Kannan, respondent 2 (Kannan's niece) and respondent 1 (the son of another niece). On 14 January of that year Kannan executed a deed of gift of certain immovable properties in favour of his own children who, of course, were members of another tarwad. According to the deed, the properties were the private properties of Kannan, but in addition to signing the document in his personal capacity he signed it as the karnavan of the tarwad and the guardian of respondent 1, who was then a minor. It is now beyond dispute that the properties belonged to the tarwad and that the gift constituted a fraud on the tarwad. Kannan died in 1919 and from that date respondent 2 has admittedly been the lawful karnavan of the tarwad. It would appear that respondent 2 managed the properties of the tarwad long before Kannan died, but for the purposes of this appeal it must be taken that at the time the deed of gift was executed Kannan himself was acting as the karnavan. Respondent 1 attained his majority on 28 October 1927 and within three years of that date; to be exact on 14 October 1930, he filed the suit out of which this appeal arises for a decree setting aside the deed of gift and directing the alienees to give him possession of the properties. The suit was tried by the District Munsif of Cannanore, who rejected the plea advanced by the alienee defendants that the suit was time barred. On appeal to the Subordinate Judge of Tellicherry this decision was reversed and the suit was dismissed on the ground that it was out of time. Eespondent 1 then appealed to this Court and Stodart J. who heard it disagreed with the Subordinate Judge on the question of limitation. The learned Judge however gave a certificate which has permitted of the filing of this appeal under ol. 15, Letters Patent.

(2.) The question which has to be decided is iwhether Section 7, Limitation Act, saves the suit. The appellants say that it does not, because when she became the karnavan respondent 2 was in a position to give a discharge on behalf of the tarwad and that being so time ran also against respondent 1. We consider that this contention is well founded, but before giving our reasons we will refer to two cases which have been quoted to us in the course of the arguments. The first of these cases is Moidin Kutti V/s. Beevi Kutti Ummah ( 95) 19 Mad. 38. There the senior members of a Malabar tarwad in pursuance of a bona fide compromise of certain claims transferred to the claimants some land belonging to the tarwad. Thirteen years later, a suit was filed by junior members of the tarwad, of whom several were minors, for recovery of possession of the land. Other junior members had attained majority more than three years before the suit, but had not impugned the validity of the conveyance. Their right was common with that of the plaintiffs. As there were major members of the tarwad who were in a position to bring a suit, but had taken no action within the prescribed period of limitation, it was held that the plaintiffs suit was time barred. The second case is 1914 M w N 689.2 This was a suit brought by the members of a tarwad for a declaration that a document executed by the karnavan acknowledging the right of defendant 2's tarwad to a half share in an office was fraudulent and that the agreement, was not binding on the plaintiffs tarwad. The suit was brought more than ten years after the date of the document. Certain of the plaintiffs were minors and it was on this ground it was claimed that the suit was in time. This claim was rejected because the karnavan and the adult members of the family represented the tarwad. Sadasiva Aiyar J. was inclined to the view that a karnavan whose contract was sought to be impeached was a person who was able to give a discharge within the meaning of Section 7, Limitation Act, but Napier J. did not share, in this opinion.

(3.) In the case before us respondent 2 was certainly in a position to bring a suit as the karnavan to set aside the transaction. It has been said on behalf of respondent 1 that the fact that she signed the deed of gift debarred her from bringing a suit. Without going into the question whether the opinion expressed by Sadasiva Iyer J. in Parameswaram Nambudripad V/s. sankaran Namabudripad ( 15) 2 A.I.R. 1915 Mad. 723 is well founded we do not accept the respondent l's contention that respondent 2 was debarred from suing. Respondent 2 signed the deed in her individual capacity, not as the karnavan, and what is more, the Subordinate Judge has found that she was the victim of a fraud and not a party to the fraud. There can be no doubt that respondent 2 joined in the deed because of Kannan's influence with her. It may be that while ha was alive she remained under his influence and therefore was not a free agent, but Kannan's influence was removed by his death. In these circumstances it is not necessary to decide whether limitation commenced to run from the time of the execution of the deed, because it must have started to run in 1919 when on the death of Kannan respondent 2 admittedly became the de jure and the de facto karnavan. Limitation having commenced to run against the tarwad it ran against the plaintiff, and the sands had run out before the suit was filed. For these reasons we allow the appeal with costs throughout in favour of the appellants.