ARYAKKANDI KUNHI KANNAN Vs. KOTTIATH VAZHAYIL DEVAKI

JUDGEMENT

(1.) This second appeal involves the decision of an interesting question of law. The appeal arises out of a suit to set aside alienations of property belonging to a Malabar tarwad and to recover property. There were three such alienations, but at the hearing of this appeal only one remains in controversy, namely, a gift to certain persons evidenced by a registered gift deed Ex. A in the suit. The persons who-executed that deed were Arayakandy Kottiah Kannan executing, it as karnavan of the tavazhi, secondly his niece Arayakandi Kunhimani and lastly Kannan purports to execute it on behalf of Kunhi Kannan the present plaintiff who was then a child of 4 years. That gift in form is a gift by all the existing members of the tarwad or tavazhi. Kannan described in this document as the karnavan died in 1919 and his niece Kunhimani was left in sole management of the tarwad property. The plaintiff came of age in 1927 and he filed the suit now under appeal in 1930 within three years of his attaining majority. He files the suit in the capacity of karnavan of the tarwad and he impleads as the first defendant his aunt Kunhimani as being the only other member of it and the suit is, as I have said, to recover the property on behalf of the tarwad. Both the Courts have held that the gift as such could not be supported, but in the lower appellate Court the learned Subordinate Judge, differing from the trial Courts, held that the plaintiff's suit was barred by time. This second appeal is that the lower appellate Court was wrong.

(2.) The gift was taken as having been effected on the date of Ex. A, namely, on the 14 January, 1913, and the time for filing a suit was taken as being 12 years in accordance with the provisions of Art. 142 of the Limitation Act; the suit therefore should have been brought before the 14 January, 1925. But on that date the plaintiff was, as I have explained, a minor and under Section 6 of the Indian Limitation Act he was entitled to bring the suit within three years of his attaining majority. There is no dispute about that. Other things being equal the provisions of Section 6 of the Limitation Act certainly apply to the plaintiff. But the learned Subordinate Judge has held that the plaintiff's case is governed by Section 7. In other words, this was a case where there was a person entitled to institute the suit jointly with the plaintiff who could give a discharge without the concurrence of the plaintiff. That person according to the learned Subordinate Judge is no other than Kunhimani, the aunt of the plaintiff who was a party to the gift deed, and who admittedly took no steps to set it aside.

(3.) The ground of this appeal is twofold. First, Kunhimani having herself executed the gift deed could not bring the suit on the same title as the plaintiff. She could not file a suit as a junior member of the tarwad to set aside an alienation made by the karnavan without her consent. She would have had to plead in addition that her consent had been obtained by, force or fraud or in some other way sufficient to avoid the contract so far as she was concerned. The second argument is that Kunhimani could not give a discharge within the meaning of Section 7 of the Limitation Act without the concurrence of the plaintiff.