K M P PARAMESWARAN NAMBUDRIPAD Vs. KMSSANKARAN NAMBUDRIPAD

JUDGEMENT

(1.) Plaintiffs Nos. 2 to 5 are the appellants. The suit was brought by the appellants and 15 other members of their tarwad for a declaration that the karar executed the plaintiffs karnavan, the 1st defendant, in favour of the 2nd defendant in 1899 acknowledging the right of the 2nd defendant s tarwad to a half share in the uraima right in the plaint devaswom, was obtained by the 2nd defend ant by fraud, etc., and that the said agreement is not binding upon the plaintiffs tarwad. The plaint also contained a prayer for an injunction restraining the 2nd defendant and the members of his tarwad from interfering with the devaswom affairs. The suit was brought in 1910.

(2.) The lower Appellate Court dismissed the plaintiffs suit on three grounds: (a) that the suit is opposed to the provisions of Section 42 of the Specific Relief Act, I of 1877; (6) that the plaintiffs could not be allowed to amend the plaint so as to bring the prayers in the plaint into conformity with Section 42 of the Specific Relief Act; and (c) that the suit is barred by limitation. It is unnecessary to go into the first two questions for the purpose of the decision of this second appeal. I might, however, remark that under the new Civil Procedure Code, Act V of 1908, Order VI, Rule 17, all amendments "shall be made" as may be necessary for the purpose of determining the real question in controversy between the parties; and I think that the cases decided before the enactment of the new Civil Procedure Code, ruling that it is not desirable to allow amendments at a very late stage or so as to oust the jurisdiction of the Court in which the suit was instituted, are no longer of much value on the question of the amendment of plaints.

(3.) On the question of limitation I think that the lower Appellate Court has taken the right view. This suit was brought more than ten years after the date of the agreement, Exhibit A, and the reliefs claimed in the plaint bring this suit under one or more of the following heads : (a) a suit to cancel or set aside an instrument (Article 91, Limitation Act of 1908), (b) a suit for an injunction, (c) a suit for a declaration, (d) a suit for which no period of limitation is expressly provided for. Under whichever head the suit is placed, the limitation is either three years under Article 91 or six years under Article 120. The suit is, therefore, clearly barred unless the plaintiffs could take advantage of the saving provisions contained in Sections 6 or 7 of the Limitation Act, 1908, corresponding to Sections 7 and 8 of the old Limitation Act, 1877. It is admitted that Section 6 (old Section 7) does not apply, because all the plaintiffs are not minors. Hence Section 7 (old Section 8) is relied upon.