Chakkanikunnel Thomas v. Chakkanikunnel Alphonsa @ Sumi Mary

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE 6TH DAY OF JANUARY 2014/16TH POUSHA, 1935 Mat.Appeal.No. 48 of 2005 ( ) -----------------------------AGAINST THE JUDGMENT IN OP 550/2003 of FAMILY COURT, KANNUR DATED 18-08-2004 APPELLANT(S)/RESPONDENT:: -------------------------------------------- CHAKKANIKUNNEL THOMAS, S/O. MATHAI, AGED 46 YEARS, AGRICULTURIST, AYYAMKUNNU AMSOM, DESOM P.O. KACHERIKADAVU. BY ADVS.SRI.GRASHIOUS KURIAKOSE SRI.GEORGE SEBASTIAN SRI.GEORGE MATHEWS ## RESPONDENT(S)/PETITIONER:: ---------------------------------------------------- CHAKKANIKUNNEL ALPHONSA @ SUMI MARY, D/O. THOMAS, AGED 18 YEARS, C/O.PUTHUMATTATHILMARKOSE, S/O. VARKEY, AGED 68 YEARS AGRICULTURIST, VAYATHUR AMSOM, DESOM P.O. VATTIYAMTHODE, VIA. ULIKKAL. R BY ADV. SRI.R.SURENDRAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & P.D.RAJAN, JJ. ---------------------------------- Mat.A.No.48 of 2005 ---------------------------------Dated this the 6[th] day of January, 2014 ## JUDGMENT Antony Dominic, J. - 1.This appeal arises from the judgment of the Family Court, Kannur in O.P.550/03. 2.On behalf of the respondent, who was then a minor, her maternal grandfather, being her next friend, filed O.S.106/03 before the Munsiffs Court, Koothuparamba seeking partition and also claiming past maintenance at the rate of Rs.1,000/- per month for a period of 5 years from 1.2.1998 to 31.1.2003. Subsequently, on the establishment of Family Court, Kannur, the suit was transferred and was renumbered as O.P.550/03. 3.Before the Family Court, the prayer for partition was given up. Evidence was adduced by both sides by examining AWs.1 and 2 and RW1. Exts.A1 to A6 were also marked. On conclusion of trial, the Family Court rendered judgment dated 18.8.2004, directing MA.48/05 2 the appellant to pay Rs.60,000/- towards past maintenance. It is aggrieved by this judgment, the appeal is filed. - 4.We heard the learned senior counsel for the appellant and the learned counsel appearing for the respondent. - 5.Before us, two contentions were urged by the learned senior counsel for the appellant. The first one was that the Family Court overlooked Exts.A1 and A2, the documents by which one Acre of landed property was gifted to the respondent. The second contention raised was that the claim in the suit filed by the next friend for past maintenance for a period of 5 years could not have been entertained in view of the period of 3 years prescribed under the Limitation Act, 1963. - 6.In so far as the first contention relating to Exts.A1 and A2 is concerned, Ext.A1 is a registered deed executed by the appellant in favour of the respondent on 25.1.1990, whereby, a property having an extent of one Acre, was gifted to the respondent. However, MA.48/05 3 this document specifically states that despite the gift, the property would continue to be in the possession of the appellant. Subsequently, the appellant executed Ext.A2 gift deed on 26.3.1990, wherein also it is stated that the respondent will be entitled to take usufructs from the gifted property from the date of her attaining majority. Therefore, under both Exts.A1 and A2, until the respondent attained majority, the right to take usufructs from the property in question was with the appellant. 7. Admittedly, the respondent attained majority only after the institution of the OP. The case pleaded was that after 1.1.1998, the appellant was not maintaining the respondent and the past maintenance claimed was for the period 1.1.1998 to 31.1.2003. Even as per the recitals in Exts.A1 and A2, during the above period, appellant was taking the usufructs from the property. There is also no evidence to show that the respondent had any income of her own during the period and the appellant did not even contend that he was maintaining the respondent after 1.1.1998. Therefore, Exts.A1 and A2 would not help MA.48/05 4 the appellant to argue that he should be absolved of the liability to maintain the respondent. 8.The second contention raised was that since the period for which past maintenance claimed was 5 years, a part of the claim was time barred and hence, the claim is untenable. According to the learned counsel, the maximum period for which past maintenance can be claimed is three years and that therefore, the entire claim urged could not have been allowed. However, the judgment of the Family Court shows that this contention was rejected by it relying on the judgment of the Patna High Court in Laljit Sah and others v. Sat Narain Bhagat and others [AIR 1962 Patna 182], where, it has been held thus: “(22) The only point now to be considered is the plea of limitation raised faintly by Mr.Kailash Roy. He has argued that the suit was barred by limitation, because it was instituted by the next friend of the minor long after the date of confirmation of the auction sale, though the suit ought to have been brought within one year from that date or in case fraud was proved, within three years from the date when the fraud became known to the plaintiffs' guardian. MA.48/05 5 Mr.Roy conceded that the minor could institute the suit within one year or, as the case may be, three years of his attaining majority. He, however, attempted to make a distinction and said that this rule cannot apply to a case where the guardian of a minor institutes a suit during his minority. But there is nothing in section 6 of the Limitation Act to justify this distinction or to curtail the protection given to a minor by the acts of his guardian in the matter of instituting a suit or making an application. This section provides that the period of limitation prescribed for a person who does not suffer from any legal disability shall be computed in the case of a minor, from the date of cessation of his minority: see Batuk Prasad v. Rudra Das, AIR 1950 Pat 206. It is also well settled that the privilege given to a minor under this section is not one that could be availed of by him only, but while the minor's disability lasts his guardian or next friend also can bring a suit or make an application though the ordinary period of limitation for such a suit or application has run out (see Phoolbas Koonwar v. Lala Jogeshwar Sahay, ILR 1 Cal 226(PC): Khodabux v. Budree Narain Singh, ILR 7 Cal 137; Jagadindra Nath Roy v. Hementa Kumari Devi, ILR 32 Cal 129 (PC) and Satyendra Narain Sinha v. Pitamber Singh, AIR 1938 Pat 92). Hence the plea of limitation fails.” - 9.Section 6 of the Limitation Act, 1908, which, in substance, is similar to section 6(1) of the MA.48/05 6 Limitation Act, 1963, was considered by the Full Bench of this Court in Ponnamma Pillai Indira Pillai v. Padmanabhan Channar Kesavan Channar [1968 KLT 673] and the scope of section 6 has been explained in paragraph 6 of the judgment thus: “6. Then, the further question is whether despite S.8, the plaintiffs will get 12 years from the date when the 1st plaintiff became the manager to file a suit. S.6 makes it clear that time will continue to run even during the disability of a person. What S.6 has done is not to give a fresh starting point of limitation, but to extend the period of limitation prescribed in the first schedule. The section does not prevent the running of time as against a person under disability. The provision that the suit or application may be filed within the same period after the disability has ceased as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule does not mean that limitation will not run at all during the continuance of the disability. The provision only means that the person under disability is entitled to an extension of time till the expiry of the period mentioned in the schedule calculated from the cessation of his disability (subject to the limit mentioned in S.8).” MA.48/05 7 - 10.Thereafter, the question whether the guardian could institute a suit taking advantage of section 6 was considered and it was held thus: “The wording of the section makes it clear that even if a person is a minor it will be open to his next-friend to institute a suit. Although a guardian is not obliged to file a suit there is nothing prohibiting him from filing one on behalf of a person while he continues under a disability after the ordinary period of limitation.” 11.In so far as this case is concerned, admittedly, on the date of filing the suit, the respondent was a minor and thus she was under a disability that the suit was instituted by her next friend. If that be so, in view of the principles laid down by the Patna High Court and also the Full Bench of this Court in Ponnamma Pillai Indira Pillai (supra), guardian was entitled to file the suit even after the expiry of the period of limitation. If that is the correct position in law, the claim made by the guardian on behalf of the respondent, who was a minor, for past maintenance for a period of 5 years cannot be said to be untenable. MA.48/05 8 Thus, both the contentions raised are untenable. The appeal merits only dismissal and we do so. Sd/- ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb. /TRUE COPY/ PS TO JUDGE