Pauly v. Defendants 1 to 6 and others (RSA No. 669 of 2003)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 RSA.No. 669 of 2003() --------------------AS.90/1999 of ADDL. DISTRICT COURT, N. PARAVUR OS.404/1988 of MUNSIFF COURT,ALUVA .................... APPELLANT/RESPONDENT/PLAINTIFF: ---------------PAULY, W/O.CHUNDANGA JOSE, KOTTAMAM KARA, MANIKKAMANGALAM VILLAGE, ALUVA TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE RESPONDENTS/APPELLANTS & RESPONDENTS 2, 3, 4 TO 9/DEFENDANTS 1 TO 6 & - --------------------NON-PARTIES: 1. MARIYAM, W/O.VARGHESE, AUTOKKARAN, NEELEESWARAM KARA, MANIKKAMANGALAM VILLAGE, ALUVA TALUK. 2. PAULOSE, S/O.VARGHESE, -DO-DO- 3. SUBRAMANIAN, S/O.VELAYUDHAN, POOTHELI VEETTIL, -DO-DO- 4. VALSALA, W/O.SUBRAMANIAN, -DO-DO- - 5.TONY, S/O.VARGHESE, AUTOKKARAN,NEELESWARAM KARA, MANIKKAMANGALAM VILLAGE, ALUVA TALUK. 6. ANES, W/O. PAULOSE, -DO-DO- 7. PATHROSE, S/O.OUSEPH, VALANCHERRY VEEDU, KODAKARA, THRISSUR DISTRICT. 8. ELSY, W/O.DEVASSYKUTTY, KOYIKKARA VEEDU, KOTTAMAMKARA, MANIKKAMANGALAM VILLAGE. 9. ALPHONSA, W/O.JOSE, KUDILINGAL VEDU, KUMIDI, ANNAMANADA. 10. KOCHURANI, W/O.PAULOSE,PALATHIKOONATHAN VEEDU, THURAVOOR KARA, ANGAMALI. -2- R.S.A. NO.669/2003 11. GEETHA, W/O.SEBASTIAN, KARUVATHI VEEDU, AVANAMKODE, AKAPARAMBU VAZHI. 12. SOPHI, W/O.THAMBI, THALIYAPURATH VEEDU, ANGAMALI. ADV. SRI.P.R.VENKETESH FOR R1 TO12 SRI.P.R.RAJA FOR R1 TO R12 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.1120/05 IN R.S.A.NO.669/2003 ----------- DISMISSED 30/7/2010 Sd/HARUN-UL-RASHID, JUDGE. True Copy ## **HARUN-UL-RASHID,J. -----------------------------R.S.A.NO.669 OF 2003 ------------------------------DATED THIS THE 30TH DAY OF JULY, 2010** ## **JUDGMENT** Plaintiff in O.S.No.404/88 on the file of the Munsiff's Court, Aluva is the appellant. The appeal is directed against the judgment and decree in A.S.No.90/99 on the file of the Additional District Court, North Paravur. The suit was filed for partition and injunction. The trial court decreed the suit declaring that the plaintiff is entitled to get 1/9 share of the 2/3 portion of the plaint schedule item No.2 as it was existing on the date of Ext.B1 sale deed, i.e. on 4/12/1974 and 1/9 share of the 2/3 portion from one half of the plaint schedule item No.1. In the trial court also granted a decree of injunction as prayed for. In the appeal preferred by defendants 1, 2, 4 and 5 the Lower Appellate Court confirmed the decree and judgment regarding item No.1 and set aside the same regarding item No.2. The parties hereinafter are referred to as the plaintiff and defendants **-2-** R.S.A.669/2003 as arrayed in the suit. 2. The Lower Appellate Court reversed the decree regarding item No.2 holding that the document is voidable since the natural guardian mother has represented the minor and that the period of limitation for filing the suit after cessation of the disability of the plaintiff is three years, and on that basis dismissed the suit in regard to the plaint item No.2 as barred by limitation. The decree and judgment passed by the Lower Appellate Court regarding item No.1 has become final. The only question in this appeal is the legality of the judgment and decree passed by the Lower Appellate Court in regard to the plaint item No.2. 3. The learned senior counsel for the appellant challenged the findings of the Lower Appellate Court. According to him, the Lower Appellate Court has failed to see that Ext.B1 does not even purport to be for the necessity of the quantum minor and that therefore the document partakes the **-3-** ## R.S.A.669/2003 character of a gift and the document is void. He further submitted that if the document is to void, the same can be ignored and the plaintiff is entitled to recover the property unless recovery is barred under Article 65 of the Limitation Act. The Lower Appellate Court examined the contentions of the appellant in paragraph 10 and 11 of the judgment in detail. The Lower Appellate Court observed that a Christian mother in the absence of father is a natural guardian, that Ext.B1 transaction executed by the mother for and on behalf of her minor children is a voidable document, that if the transaction evidenced by Ext.B1 is voidable, the minor cannot file a suit for partition ignoring Ext.B1 beyond the period of limitation. Relying on Sections 6, 7 and 8 of the Limitation Act the Lower Appellate Court observed that under Section 6 of the Act a minor may institute the suit within the same period after the disability has ceased and that Section 8 provides that nothing in Section 6 of the Act shall be deemed to extent for more than 3 years from the cessation of the **-4-** ## R.S.A.669/2003 disability, the period of limitation for a suit. The plaintiff attained majority in the year 1977. The Lower Appellate Court, after a combined reading of Sections 6 and 8, held that a period of 3 years from the year 1977 is available to the plaintiff to challenge Ext.B1 document. The suit being filed in the year 1988, it was held that the suit is hopelessly barred by limitation. 4. The Lower Appellate Court relied on the decision in **Ponnamma Pillai Indira Pillai v. Padmanabhan Channar Kesavan Channar and others** ( **1968 KLT 673)** in which it was held that what section 6 of the Limitation Act had done was not to give a fresh starting point of limitation prescribed in the first schedule. The Appellate Court held that under Section 8 of the Act a plaintiff under disability cannot get more than 3 years from cessation of disability to file the suit. The Appellate Court also relied on the decision reported in **Moidu Haji v. Kunhabdulla (1998(2) KLT 691)** . This Court took the same view after referring to the decision of the Supreme Court in **-5-** R.S.A.669/2003 **Hukmi v. Smt. Gian Kumar (1971 (3) SCC 782).** The Apex Court in the decision in **Darshan Singh and others v. Gurudev Sing (1995 SC 75)** also dealt with the same question. The Apex Court held that Section 8 is a proviso to Section 6 or Section 7. A combined effect of Sections 6 and 8 read with Third Column of the appropriate Article would be that a person under disability may sue after cessation of disability within the same period as would otherwise be allowed from the time specified therefore in the third column of the Schedule but special limitation as an exception has been provided in Section 8 stating that extended period after cessation of the disability would not be beyond three years from the date of cessation of the disability or death of the disabled person. The Apex Court further clarified that the litigant is entitled to a fresh starting period of limitation from the date of cessation of disability subject to the condition that in no case the period extended by this process under Section 6 or Section 7 shall exceed three years from the date of cessation of **-6-** R.S.A.669/2003 the disability. 5. The suit was filed in the year 1988. The plaintiff averred that item No.2 of the plaint schedule property was assigned as per Ext.B1 by defendants 1 and 2 in the year 1974 acting on her behalf and on behalf of the other minor children including the plaintiff. The Lower Appellate Court for the aforesaid reasons, rightly held that the period of limitation should be reckoned three years from the date when the plaintiff attained majority. If that be so, the suit filed in the year 1988 in regard to item No.2 is barred by limitation. I do not find any reason to upset the findings entered by the Lower Appellate Court. The Lower Appellate Court has correctly appreciated the the legal principles and concluded that the suit is barred by limitation, so far as item No.2 is concerned. In the result, the appeal fails and accordingly dismissed. No order as to costs. Sd/- **HARUN-UL-RASHID, JUDGE.** **kcv.**