IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 RSA.No. 250 of 2009() --------------------- AS.357/2005 of II ADDL.DISTRICT COURT,ERNAKULAM OS.238/2003 of III ADDL.M.C & RENT CONTROL COURT , ERNAKULAM .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. THE THRIKKANARVATTOM SAMUDAYA SEVA SANGHAM, REG.NO.S-1/1110, AYYAPPANKAVU, KOCHI-682018, REP.BY ITS PRESENT CHAIRMAN P.G.PRASAD, AGED 60, S/O. SRI.P.K.GOPALAN, PULIKKAPARAMBIL, VADUTHALA, KOCHI-23. 2. THE THRIKKANARVATTOM SAMUDAYA SEVA SANGHAM, REG.NO.S-1/1110, AYYAPPANKAVU, KOCHI-682018, REP.BY ITS PRESENT SECRETARY C.K.MOHANAN, AGED 66, S/O. SRI.C.K.KRISHNAN, CHANGANATH HOUSE, AYYAPPANKAVU, KOCHI-18. 3. THE THRIKKANARVATTOM SAMUDAYA SEVA SANGHAM, REG.NO.S-1/1110, AYYAPPANKAVU, KOCHI-682018, REP.BY ITS PRESENT TREASURER P.P.SALEEM KUMAR, AGED 56, S/O. P.A.PARAMESWARAN, PANICKASSERY HOUSE, VADUTHALA, KOCHI-23. BY ADV. SRI.P.PUSHPARAJAN SRI.K.C.KIRAN (NEYYATTINKARA) RESPONDENT/RESPONDENT/PLAINTIFF ------------------------------------------------------- M.V.BAHULEYAN, S/O. MULLOOR VELU, AGED 77, MULLOOR HOUSE, THRIKKANARVATTOM, ERNAKULAM, ERNAKULAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO.521 OF 2009 IN R.S.A. NO. 250 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 23.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 250 of 2009 ---------------------------------------- Dated this the 22nd day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S.357 of 2005 on the file of the II Additional District Court, Ernakulam which in turn arises from the decree and judgment in O.S. No. 238 of 2003 on the file of the III Additional Munsiff & Rent Control Court, Ernakulam. The suit was filed for declaration and mandatory injunction. The suit was decreed by the trial court and the same was confirmed by the lower appellate court. Hence this Second Appeal is filed by the defendants in the suit. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff's case in brief is as follows: The Plaintiff's maternal uncle Sri.Ayyappee @ Chakkran was a member of the 1st defendant Sanghom . He was married to one Smt. Kalyani The said Ayyappee died on 20.10.1970 and his wife Kalyani died on 29.1.1995. According to the plaintiff by virtue of Clause 8 of the bylaw of the 1st defendant Sanghom, if a member passes away without leaving any children, his wife can continue as the member and after her death the eldest male member among the legal heirs from the parent family of the R.S.A. No.250 of 2009 -2- original member can succeed and in the absence of a male member the eldest female member will get the right to succeed as a member of the 1st defendant Sanghom In this case the original member Ayyappee who died in the year 1970 and his wife continued as a member till her death in 1995. The plaintiff is the son of the only sister of the said Ayyappee by name Smt. Komachi. According to the plaintiff as per the provisions of Clause 8 of the bylaw the membership right of the late Ayyappee devolved upon his wife Kalyani and after her death the said right devolved upon him who being the eldest male member from the Ayyappee's family, that the plaintiff has got right of succession as per Section 15 of the Hindu Succession Act as well. According to him he is entitled for a declaration that he is entitled to be a member of the 1st defendant sanghom and for a mandatory injunction. 3. The defendants in their written statement interalia contended that the plaintiff is not entitled to any reliefs as claimed in the suit . According to the defendants the plaintiff is not a member of the family of late.Ayyappee, that he is a member of his father's family, that as per Section 15 of the Hindu Succession Act the plaintiff cannot become a member of the 1st defendant Sanghom and the suit is barred by limitation. 4. The defendants raised another contention to the effect the R.S.A. No.250 of 2009 -3- suit is barred by limitation, that as per Article 58 of the Limitation Act a suit for declaration has to be filed within a period of 3 years when the right to sue first accrues. The defendants pointed out that the original member Ayyappee died in the year 1970 and his wife passed away on 29.1.1995 Hence the plaintiff ought have been instituted the suit within 3 years from the date of death of .Kalyani. But the suit was instituted only in the year 2003 and therefore the same is hopelessly barred by limitation. The trial court also held that the time for filing a suit for declaration under Article 58 of the Limitation Act will run from the date when the right to sue accrues and as per Section 34 of the Specific Relief Act any person entitled to any legal character or to any right to property may institute a suit as against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled. .After referring to few decisions of other High courts, the trial court observed that the cause of action for such a suit arises only when the defendants denies such right of the plaintiff and the right to sue accrues when the right in respect of which the declaration sought is denied or challenged by the defendants The trial court declared that the right to sue will accrue only when the defendants denied the right claimed by the plaintiff and concluded that the plaintiff's right to sue accrues only on receipt of Ext.B3 notice by him, that the filing of the suit by the plaintiff on 3.2.2003 is perfectly within the period of limitation. R.S.A. No.250 of 2009 -4- 5. The trial court read understood and interpreted rightly the relevant provisions of the bylaw of the 1st defendant sanghom The trial court also examined whether the plaintiff is the eldest male member of the parent family of the original member. According to the plaintiff late.Ayyappee had no brothers but only one sister named Komachi , who is mother of himself and thus he is the eldest male member of the parent family. The trial court found that Komachi has succeeded by her children including the plaintiff and being the eldest male member in her family the plaintiff is an eligible person to apply for membership in the 1st defendant Sanghom The trial court also believed the version of PW1 that his brothers passed away much before the death of late Kalyani ( the wife of the Original Member Sri.Ayyappee) The trial court also observed that section15 2(b) of the Hindu Succession Act 1956 provides that if the property was inherited by a female Hindu from her husband it shall devolve in the absence of her son or daughter not upon the other heirs referred in sub section (1), but upon the heirs of her husband, that as per Rule 8 of Ext.B1 bylaw the said Rule is strictly in conformity with section 15(2) (b) of the Hindu Succession Act. The trial court concluded that the plaintiff has produced satisfactory evidence to show that he is the eldest male member alive as the lawful heir of his maternal grandfather (Ayyappee) and passed a decree as prayed for by the plaintiff. The same contentions were re-agitated before the lower appellate R.S.A. No.250 of 2009 -5- court by the defendants and the lower appellate court rightly held that there is no reason to interfere with the findings of the trial court on the questions viz. whether the suit is barred by limitation and whether the plaintiff is eligible to get membership in the 1st defendant Sanghom. I am of the view that the findings arrived at by the courts below are justified on facts and law. I do not find any reason to interfere with the judgments and decrees passed by the courts below. There is no scope for invoking Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 250 of 2009 ---------------------------- JUDGMENT 23rd June, 2009