IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 CRP.No.834 of 2008 ------------------------ O.S.267/07 OF MUNSIFF'S COURT, VARKALA -------------- REVN. PETITIONER: 3RD DEFENDANT: --------------------------------------------- RENUKA, D/O.KUNJURAMAN, AGED 52 YEARS, CHERUKARA VEEDU, CHAKKALAVILAKOM, KADAKKAVOOR. BY ADV. SRI.M.DINESH RESPONDENTS: PLAINTIFF & DEFENDANTS 1,2,4 & 5: --------------------------------------------------------------- 1. RADHA RAMANAN, S/O.KUNJURAMAN, AGED 48 YEARS, K.R.NIVAS, CHEKKALAVILAKOM, KADAKKAVOOR. 2. ARUNDHATHI, W/O.LATE KUNJURAMAN, AGED 80 YEARS, CHERUKARA VEEDU, CHEKKALAVILAKOM, KADAKKAVOOR. 3. ASOKAN, S/O.KUNJURAMAN, AGED 53 YEARS, KRISHNASRAMAM, KADAKKAVOOR. 4. REMANI, D/O.KUNJURAMAN, AGED 52 YEARS, CHERUKARA VEEDU, CHEKKALAVILAKOM, KADAKKAVOOR. 5. SASIDHARAN, S/O.NEELAKANTAN, AGED 60 YEARS, THUNDATHIL VEEDU, KADAKKAVOOR. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. R. P No.834 of 2008 ------------------------------------------------ Dated this the 20th day of November, 2008 ORDER The third defendant in O.S.267/07 on the file of the Munsiff's Court, Varkala is the petitioner. Defendants 1 and 4 filed I.A. 599/06 to hear the issue regarding limitation as a preliminary issue. 2. The issue as framed is “whether the suit is barred by limitation” ?. 3. The court below found that the plaintiff has pleaded that he got information regarding alleged partition deed No.327/1973 and sale deed Nos.328 and 329 of 1973 only from the reply notice given to him when demand for partition was made through notice dt.25/09/07 and therefore, the suit cannot be said to be barred and further that it is a matter for evidence and that at this juncture it cannot be found that the suit is barred by C. R. P No.834 of 2008 -2- limitation. The third defendant assails the said finding and wants the suit to be dismissed reversing the finding so entered into by the court below. 4. It is vehemently contended before me by the learned counsel for the petitioner that the suit is hit by Article 60 of the Limitation Act as the relief sought for in the suit takes in relief of setting aside two documents executed by the guardian of the plaintiff when he was a minor. The partition deed and the sale deeds were all in 1973. Admittedly the plaintiff was a minor then. It is not in dispute that he attained majority in 1976 and that the suit is filed only in 2007 viz. after 30 years of his attaining majority. It is true that if the suit is one wherein relief sought for is only to set aside a transfer made by a guardian on behalf of the C. R. P No.834 of 2008 -3- ward the suit has to be filed within three years of the ward attaining majority as per Article 60 of the Limitation Act. But all the same, it is seen that the case of the plaintiff is that he came to know of the partition deed whereunder the joint family property was partitioned in 1973 and of a few documents having been executed on the basis thereof in 1973 itself by his mother, only when it was made known to him by the reply notice when demand was made on his behalf through notice issued by lawyer on 27/09/07. Under Article 59 of the Limitation Act to cancel or set aside an instrument three years' time is provided when the facts entitling the plaintiff to have the instruments set aside first became known to him. According to the plaintiff, he was not even aware of the instrument of partition that had been entered C. R. P No.834 of 2008 -4- into in 1973 by his mother and other members of the joint family and he was also not aware of the subsequent documents executed by the mother. In that context as rightly observed by the court below it is a mixed question of law and fact as the knowledge of the plaintiff is very material and in that event Article 59 applies to have the partition deed set aside. It goes without saying that in the event of partition deed being set aside finding that the suit for the said relief attracts Article 59 of the Limitation Act, sale deed executed by the guardian at best may affect or operate only on the property that may fall to the share of the mother and it cannot affect the plaintiff. These are all matters to be decided in the suit and the suit is not liable to be thrown out entering a preliminary finding without considering the evidence that may be C. R. P No.834 of 2008 -5- adduced in the case, that the suit is barred by limitation. Hence, there is no merit in this C.R.P and the C.R.P is dismissed. K.P.BALACHANDRAN, JUDGE kns/-