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1957 DIGILAW 57 (KER)

Chirutha Amma Appili Amma v. Neelakanta Pillai Kunju Pillai

1957-02-20

KUMARA PILLAI

body1957
Judgment :- 1. This second appeal arises out of a suit for cancellation of a sale deed and recovery of possession of the property sold thereunder. Plaintiffs 1 to 7 are the children of defendant 8, and the plaintiffs' case is that the plaint property belonged to the sub-tarwad consisting of them and their mother, defendant 8, and that defendant 8 had sold the property on 26.6.1110 in favour of defendant 1 without consideration and tarwad necessity. The suit was filed on 7.7.1123. Defendant 1 contended that the suit was barred by limitation in as much as it was filed more than twelve years after the date of sale and more than three years after the date of sale and more than three years after plaintiff 1 had attained majority and that the sale was supported by consideration and tarwad necessity and was not liable to be set aside. The trial Court found that the suit was not barred by limitation as it was filed within three years of the attainment of majority by plaintiff 1. But it dismissed the suit holding that the sale was supported by consideration and tarwad necessity. From the trial court's decree the plaintiff filed an appeal to the District Court of Quilon, and defendant 1 also filed a memorandum of objections as regards the finding on the question of limitation. The learned Second Additional District Judge of the District Court of Quilon, who heard the appeal, dismissed defendant 1's memorandum of objections and allowed the plaintiffs' appeal holding that the sale was not supported by consideration and tarwad necessity. The present second appeal is filed by defendant 1 against the decree of the District Court allowing the plaintiffs' appeal decreeing the suit. 2. Only two points were urged by the appellant's counsel at the time of hearing in this Court. The first was that the suit is barred by limitation and the second that the sale deed (Ext. A) is supported by consideration and tarwad necessity. 3. At the time of the execution of Ext. A defendant 8 was the only adult member in the plaintiff's sub¬tarwad. All the remaining members of the sub-tarwad were minors, and of them plaintiff 1 was the oldest. As the suit is on behalf of the plaintiffs' sub-tarwad and as it has been filed more than twelve years after the execution of Ext. A defendant 8 was the only adult member in the plaintiff's sub¬tarwad. All the remaining members of the sub-tarwad were minors, and of them plaintiff 1 was the oldest. As the suit is on behalf of the plaintiffs' sub-tarwad and as it has been filed more than twelve years after the execution of Ext. A it will be saved from limitation only if it has been filed within three years of the date on which plaintiff 1 attained majority. According to the plaintiffs, plaintiff 1 was born on 22.7.1102, and so he attained majority on 22.7.1120 and the suit filed on 7.7.1120 is within time. To prove that plaintiff 1 was born on 22.7.1102 the plaintiffs relied upon Ext. B, which is a certified copy of an entry in the Register of Births and Deaths of Nedumbanam Pakuthy and the evidence of the plaintiffs' parents. Defendant 8 and the plaintiffs are living in Nedumbanam Pakuthy in Quilon Taluk. Ext. B shows that a son was born on 22.7.1102 to a woman having the name of defendant 8. The son's name is not given in Ext. B. The lower Courts assumed that Ext. B related to plaintiff 1, and it is relying upon that entry that the finding that the suit has been filed within three years of the attainment of majority by plaintiff 1 has been recorded. The appellant's counsel contended that this assumption was wrong and that there was no evidence to prove that the child whose birth is mentioned in Ext. B was plaintiff 1 or that the mother mentioned in Ext. B was defendant 8. The respondent's counsel contended that under S.17 of the Registration of Births and Deaths Act, VII of 1096 (Travancore) certified copies of entries in the Register of Births and Deaths were themselves evidence and that there was no necessity to prove them by any oral evidence. In support of this contention he also relied upon the decision of the former High Court of Travancore in Karthyayini Amma v. Raman Nair, 22 TLJ 26. years old, and the inference from that description is that he must have been born at least in Chingom 1102. Having regard to plaintiff 1's age given in Ext. In support of this contention he also relied upon the decision of the former High Court of Travancore in Karthyayini Amma v. Raman Nair, 22 TLJ 26. years old, and the inference from that description is that he must have been born at least in Chingom 1102. Having regard to plaintiff 1's age given in Ext. III and the fact that it was executed by his mother and other members of his tarwad long before the institution of the present suit at a time when they had absolutely no motive to make a false statement regarding his age, I have no doubt of the fact that plaintiff 1 was born before the end of Chingom 1102. It follows that he must have attained majority before 1.2.1120 and that the suit filed on 7.7.1123 is barred by limitation and has to be dismissed on that ground. 6. In view of the finding on the question of limitation it is not necessary to consider in this second appeal the contentions of the parties regarding consideration and tarwad necessity for Ext. A. 7. In the result the second appeal is allowed, the decree of the lower appellate court is set aside and the suit dismissed. Parties will bear their costs throughout. Allowed.