Mohanan Nair v. Ramakrishna Pillai — 1997 DIGILAW 371 (KER)

JUDGMENT 1. The plaintiffs are the appellants. The suit by the plaintiffs was one for setting aside a sale deed dated 5th June 1958 executed by defendant No. 4 in the suit who was at the relevant time the Karanavathy of a Marumakhathayam thavazhi. The said sale deed was executed by defendant No. 4 not only for herself but also for and on behalf of the first plaintiff who was then in existence. Under Ext. A-l alienation effected by defendant No. 4 on 5th June 1958, two items were sold. The suit was resisted by the alienees. The suit was dismissed by the Trial Court and the dismissal was confirmed in appeal by the lower appellate court. Hence this Second Appeal by the plaintiffs. 2. The plaintiffs are the children of defendant No. 4. Under Ext. B-l partition of the year 1116M. E. certain properties were allotted to the thavazhi of defendant No.4. Under Ext. B-3 dated 2nd February 1953 there was a second partition in which the plaint schedule items were allotted to defendant No. 4. On the date of Ext. B-3, defendant No. 4 had not begotten any children. But subsequent to her obtaining the properties under Ext. B-3 but before their alienation, the first plaintiff was born. Going by the Marumakhathayam law settled by the Full Bench decision of this court in Mary v. Bhasura Devi, 1967 KLT 430 (F.B.) on the birth of the first plaintiff the property obtained by defendant No. 4 in Ext. B-3 partition acquired the character of thavazhi property. Though I am inclined, with respect, to agree with the powerful dissent by two of the learned Judges with the above view, I do not think it proper at this distance of time to accede to the request of counsel for the contesting defendants to doubt the correctness of the view of the majority in that decision and to refer the question to a Division Bench afresh. The said decision has held the field in this court for the last thirty years and even before, but for some difference of opinion which was settled by that Full Bench. The mother acting for herself and as guardian of the first plaintiff son executed Ext. A-1 sale deed on 5th June 1958. The said decision has held the field in this court for the last thirty years and even before, but for some difference of opinion which was settled by that Full Bench. The mother acting for herself and as guardian of the first plaintiff son executed Ext. A-1 sale deed on 5th June 1958. Plaintiffs 2 to 6 were born after 5th June 1958 and but for the intervention of the first plaintiff they have no right to question the alienation Ext. A-l. The arrival of the first plaintiff subsequent to Ext. B-3 partition and before Ext. A-l, alienation give those plaintiffs also an opportunity to challenge the alienation. [See the discussion of the Full Bench on this aspect in Kumaraswamy Muthaliyar v. Rajamanikam Udayar 1966 KLT 361 . The suit was filed by the plaintiffs against defendants 1 to 3, alienees on 17th, December 1977. Plaintiff's 2 to 6 were minors as on the date of suit. On 17th December 1977, the suit was filed within three years of the attaining of majority by the first plaintiff. The mother was impleaded as defendant No. 4. On 21st June 1978, alienees defendants 1 to 3 filed a written statement to the effect that they had sold the properties in favour of another. They did not disclose the name of the alienee. On 6th November 1978 the plaintiff's filed I. A. 2315 of 1978 for impleading the transferee. The plaintiffs pleaded that since the name of the transferee was not given in their written statement by defendants 1 to 3, plaintiffs had to make enquiries and they had discovered that defendant No. 5 was the alienee and that the transfer was effected by defendants 1 to 3 on 26th September 1977, within three months of the date of the suit. The transfer was of item No. 2 of the plaint schedule. On 13th December 1978 the Trial Court allowed the application for impleading and defendant No. 5 was impleaded. The court did not indicate at that stage whether it was exercising its discretion under the proviso to S.21 of the Limitation Act. It also did not indicate as to the date on which the impleading defendant is to be deemed to have been made a party to the suit. The defendants including the subsequent alienee defendant No. 5 disputed the age of the first plaintiff. It also did not indicate as to the date on which the impleading defendant is to be deemed to have been made a party to the suit. The defendants including the subsequent alienee defendant No. 5 disputed the age of the first plaintiff. In the plaint it was stated that the first plaintiff was 28 days old on the date of the transfer Ext. A-1. The defendants pointed out that Ext. A-l transaction gave the age of the first plaintiff as one year. Though a copy of an admission register was produced and marked on behalf of the plaintiffs as Ext. A-2, there was no proper evidence in support of the entries therein. But what is pointed out by counsel for the plaintiffs is that even if the first plaintiff was taken as one year old as on the date of Ext. A-l, the suit filed on 17th December 1977 was within three years of the attaining of majority by the first plaintiff. 3. The Trial Court found that Ext. A-l, is not shown to be supported by consideration or tharwad necessity and hence it is liable to be challenged by the plaintiffs. But that court held that since the alienee was impleaded only three years after the attaining of majority by the first plaintiff, the suit is barred by limitation in so far as defendant No. 5 was concerned. It purported to dismiss the whole suit though on its finding, it was bound to grant the plaintiffs a decree in respect of plaint schedule item No. 1. But since plaint schedule item No. 1 was only a small extent of property probably that aspect was not specifically highlighted before the Trial Court. The lower appellate court found that though the suit was instituted within three years of the attaining of majority by the first plaintiff since the alienee of item No. 2, defendant No. 5 was impleaded only on 13th December 1978, which was beyond three years of the first plaintiff attaining majority, the suit had to be dismissed as being barred by limitation in so far as it related to the challenge to Ext. A-l. That court found that even though plaintiffs 2 to 6 were born after 5th June 1958, the date of the impugned alienation, in view of the fact that the first plaintiff was in existence on the date of the alienation, they were jointly entitled to institute the suit to impeach the alienation and to recover the properties. On its finding that since the alienee of item No. 2 being not impleaded within three years of attaining of majority by the first plaintiff, the suit was barred by limitation, the lower appellate court dismissed the appeal. 4. Though counsel for the defendants made an attempt to challenge the finding that on the day the suit was filed, it was within three years of the attaining of majority by the first plaintiff, I do not find any merit in that contention. The courts below, on the evidence and in the light of the recital in Ext. A-1 were clearly right in holding that the first plaintiff was alive on the date of Ext. A-l alienation and in view of the fact that the first plaintiff was alive, the plaintiffs as a whole are entitled to impeach the transaction Ext. A-l. 5. The question then arises whether the courts below were right in dismissing the suit as barred by limitation on the ground that defendant No. 5, the subsequent alienee, was impleaded only beyond three years of the first plaintiff attaining majority. It is true that under Order I R.10 (5) of the Code of Civil Procedure, proceedings as against any person added as defendant shall be deemed to have begun only on the service of summons on him. Here it is undisputed that the summons was served on defendant No. 5 well beyond three years of the first plaintiff attaining majority. It is also clear that the order allowing the impleading application does hot indicate the point of time when defendant No. 5 ought to be deemed to be made a party to the suit. The proviso to S.21(1) of the Limitation Act states that where the court is satisfied that the omission to implead an individual plaintiff or defendant was due to a mistake made in good faith, the court may direct that a suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. The proviso to S.21(1) of the Limitation Act states that where the court is satisfied that the omission to implead an individual plaintiff or defendant was due to a mistake made in good faith, the court may direct that a suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Learned counsel for the plaintiffs contended that the alienation effected by defendants 1 to 3 was just a few days prior to the institution of the suit and that even in the written statement of defendants 1 to 3 they had not disclosed when and in whose favour the alienation was. It was pointed out that the written statement had only vaguely stated that defendants 1 to 3 had parted with their rights over the property. It is in that context that the plaintiffs had to search out who the alienee was, to obtain a registration copy of the sale deed executed by defendants 1 to 3 and to seek his impleading . It is pointed out that the written statement of defendants 1 to 3 was filed on 21st June 1978 and on 6th November 1978 the application for impleading, I. A. 2315 of 1978 was filed by the plaintiffs. It is submitted that the circumstances of the case clearly make out that the omission to implead defendant No. 5 was due to a mistake made in good faith and that this was a fit case where the court ought to deem that the suit against defendant No. 5 was also instituted on the date of the suit namely 17th December 1977. Learned counsel for the contesting defendants did not question the existence of the power in the court under the proviso to S.21 (1) of the Limitation Act. But what counsel contended was that the court had not exercised that power when it ordered the impleading of defendant No. 5 and since the application for impleading was obviously under Order I R.10 of the Code of Civil Procedure, in view of O.1 R.10(5) of the Code of Civil Procedure, it ought to be taken that defendant No. 5 was impleaded only on the day the summons of the suit was served on him. It was submitted that since while ordering the impleading, the court had not indicated that the impleading must be deemed to have been effective from the date of suit, it was not open to the court at the subsequent stage to consider whether under the proviso to S.21 of the Limitation Act it ought to be deemed that the defendant No. 5 was impleaded at an earlier point of time. Counsel also submitted that it has not been shown that there was a bona fide omission in this case. 6. In Para.19 of the written statement filed by defendants 1 to 3 on 21st June 1978, they simply stated that they had transferred the property to another. They deliberately omitted to mention the name of the alienee. The plaintiffs, in their application for impleading have stated that on the written statement being filed and on their obtaining a copy of the written statement they had to make enquiries and they could make the application for impleading defendant No. 5 as a party only after obtaining a registration copy of the document executed by defendants 1 to 3. The circumstances clearly indicate that the alienation by defendants 1 to 3 itself was only just above two months prior to the institution of the suit. Under such circumstances, it is clear that this was a case of bona fide omission on the part of the plaintiffs to implead defendant No. 5 when they instituted the suit originally on 17th December 1977. In the circumstances of the case it is clear that the proviso to S.21 of the Limitation Act is attracted. The facts of the present case bear considerable similarity to the facts of the case decided by the Supreme Court in the decision in Munshi Ram v. Nani Ram AIR 1983 S.C. 271 where Their Lordships held that an omission to implead an alienee in circumstances similar to the present must be taken to be bona fide and it was an appropriate case to exercise the power under the proviso to S.21 (1) of the Limitation Act. I am therefore satisfied that this is a fit case where the court ought to deem defendant No. 5 as having been impleaded even on the date of the filing of the suit. 7. I am therefore satisfied that this is a fit case where the court ought to deem defendant No. 5 as having been impleaded even on the date of the filing of the suit. 7. Then the only question is whether the failure of the court to specify that the impleading shall take effect from the date of the suit while ordering the impleading precludes the court from exercising the power at a subsequent stage. I do not see anything in Order I R.10 or in S.21 of the Limitation Act which precludes the court from exercising that power at the time of the final disposal of the suit. Obviously the order impleading defendant No. 5 does not say that the impleading is to take effect only from the date of service of summons on defendant No. 5. But that would be the effect in view of Order I R.1.0 (5) of the Code of Civil Procedure. Then, the question as to whether the proviso to S.21 of the Limitation Act has to be applied in a given case, according to me would arise only at the stage of the final disposal of the suit when the question of limitation, if urged by the subsequently, added party, arises for decision. Since there is nothing in the order impleading defendant No. 5 in the suit which precludes the application of the proviso to S.21 (1) of the Limitation Act, I am of the view that this is a case where the court ought to exercise the discretion vested in it under the proviso to S.21 (1) of the Limitation Act to deem that defendant No. 5 was a party even on the date of the institution of the suit. It has therefore to be held that the courts below were in error in not exercising the discretion vested in them under the proviso to S.21(1) of the Limitation Act and in holding that the suit was barred by limitation as against defendant No. 5. I hold that this is a fit case where the discretion under the proviso to S.21(1) of the Limitation Act ought to be exercised and it is to be deemed that defendant No. 5 was impleaded as a party even on the date of the filing of the suit. 8. I hold that this is a fit case where the discretion under the proviso to S.21(1) of the Limitation Act ought to be exercised and it is to be deemed that defendant No. 5 was impleaded as a party even on the date of the filing of the suit. 8. The result of the above would be that the suit is uptime against all the defendants and the dismissal of the suit by the courts below on the ground that it is barred by limitation as against defendant No. 5 is unsustainable. The question then is what is the relief that is to be granted to the plaintiffs. According to learned counsel for the plaintiffs Mr. Sukumaran Nair, once the suit is held to be in time, on the finding of the courts below that the alienation Ext. A-l is not supported by consideration or tharwad necessity, the entire alienation has to be set aside and the plaintiffs given a decree for recovery of possession of the whole of the property. Learned counsel for the contesting defendants on the other hand submitted that the Kerala Joint Hindu Family System Abolition Act, 1975 has brought about a change and the parties have become coowners even on the date the suit was originally filed and since defendant No. 4 mother was sui juris and competent to alienate her undivided share of the property, the plaintiffs ought to be given relief only in respect of their shares. According to counsel for the plaintiffs, the undivided share of a marumakhathayi is not capable of being alienated as has been clarified by the Full Bench decision of this court in Ammalu Amma v. Lakshmi Amma, 1966 KLT 32 and hence it has to be held that the share of the mother also does not pass to the alienee. It appears to me that the alienation by the mother for herself and for and on behalf of the first plaintiff was an alienation that was voidable at the instance of the members of the thavazhi and it becomes so avoided when the present suit was filed by the plaintiffs. That would not mean that what was effected by the mother originally was the alienation of an undivided share attracting the dictum laid down in Ammalu Amma's case 1966 KLT 32. That would not mean that what was effected by the mother originally was the alienation of an undivided share attracting the dictum laid down in Ammalu Amma's case 1966 KLT 32. I do not therefore think it necessary again to accede to the request of counsel for the defendants that the decision in Ammalu Amma's case 1966 KLT 32 also requires reconsideration and the powerful dissenting view in that decision ought to be accepted as laying down the correct law and the question referred all over again to a Division Bench. According to me, since on the day the mother alienated the property she was alienating the whole and the alienation is also only voidable at the instance of the children who had acquired a divided status on 1st December 1976 when the Kerala Joint Hindu Family System Abolition Act came into force, they could claim relief only in respect of the shares that may be due to them. In that view I find that the share of the mother, defendant No. 4 has validly passed to defendants 1 to 3 and to their alienee. In such a situation, I think that the proper course to adopt is to grant the plaintiffs a decree for partition of the plaint schedule properties into seven shares and to allot to plaintiff 1 to 6 six out of the said seven shares. That would mean that the share of the mother would go to the alienee. 9. Kerala Joint Hindu Family System Abolition Act was brought into force in the State with a view to avert suits like the present years after an alienation is effected by a Marumakhathayi or a Hindu coparcener. But since the alienation in the present case was long prior to that Act, the plaintiffs are liable to be granted relief in the present suit. But I think that the object of the bringing into force of the Kerala Joint Hindu Family System Abolition Act must be taken note of to grant an equitable relief to the alienees by holding that they would be liable for the share of profits of the plaintiffs only from the date of this decree. I find that this will be just in view of the fact that the plaintiffs have claimed only recovery of profits in the plaint at the rate of Rs. 45 per year from the date of suit. I find that this will be just in view of the fact that the plaintiffs have claimed only recovery of profits in the plaint at the rate of Rs. 45 per year from the date of suit. In the result, I allow this Second Appeal and set aside the Judgments and decrees of the courts below. I pass a preliminary decree for partition and award to the plaintiffs 6/7 share in the plaint schedule properties with share of profits from the date of this decree. The quantum of profits will be determined during the course of the final decree. Any other question of equity that may arise between the parties will also be considered at the time of the passing of the final decree. But it is made clear that the alienees would not be entitled to claim any value of improvements either on the basis of S.51 of the Transfer of Property Act or on the basis that they are tenants within the meaning of the Kerala compensation for Tenants Improvements Act. Taking note of the entire circumstances, the parties are directed to suffer their respective costs in all the courts.