A co-owner has the capacity to sue a stranger for recovery of amounts due to the co-owners, and the proviso to S.21(1) of the Limitation Act should be applied, deeming the suit as having been filed by all the plaintiffs even at its inception.

The first plaintiff in the suit O.S.135 of 1977 on the file of the Munsiff-Magistrate's Court, Ponnani is the appellant in this Second Appeal. The appellant and respondents 2 to 7 herein constituted a Marumakathayam Thavazhi. The said Thavazhi was entitled to perform kazhakam services in Sree Dakshinamoorthy temple in Sivapuram. The first respondent who was a defendant in the suit is the trustee of the temple.

2. The appellant claimed that the thavazhi consisting of him self and respondents 2 to 7 was entitled to perform the kazhakam services in the temple for six months in a year and the wages due to the thavazhi was at the rate of ninety paras of paddy per year. The appellant had also taken assignment of the right of another thavazhy to perform the kazhakam services for a period of three months and thus the appellant claimed remuneration for the kazhakam services for a period of nine months in a year for the three years in question. The total amount claimed in the suit was Rs.1350/-. The suit was filed on 14-9-1977 by the appellant alone. The appellant claimed that in respect of the claim for six months he was entitled to claim on behalf of his thavazhy. In the suit an objection was taken by the defendant that after the coming into force of The Kerala Joint Hindu Family System (Abolition) Act, 1975 with effect from 1-12-1976 the appellant could not sue in his capacity as the karanavan and the other members of the thavazhy not having joined the plaint, the suit was not maintainable. It must be noticed that this objection was raised by the defendant in the written statement filed on 23-5-1978. The appellant took no steps to implead the other members of the thavazhy but respondents 2 to 7 herein made an application, I.A.1103/1980 on 2-12-1980 praying that they may be impleaded as additional plaintiffs in the suit. It was submitted on their behalf that as per the arrangement between theme the appellant alone was entitled to recover the money and they are willing to have a decree passed in favour of the appellant alone. They also submitted that the appellant had transferred his rights for the subsequent years in their favour and that they have no objection to a decree being granted to the appellant in respect of the years in question.

3. The trial court found the other pleas set up by the defendant not sustainable and found that the appellant was entitled to a decree for the kazhakam wages claimed. The argument raised on behalf of the defendant was that the claim of additional plaintiffs 2 to 7 (respondents 2 to 7 herein) having become barred on the date of their application for impleading filed in the suit, there cannot be a decree in favour of the appellant for the suit claim. Reliance was placed on S.21(1) of the Limitation Act. The trial court stated simply that in its opinion the amendment of the plaint related back to the date of the original institution of the suit for the purpose of limitation. It also stated that since no relief is sought by the additional plaintiffs in their favour S.21(1) of the Limitation Act had no application. The trial court therefore decreed the suit in its entirety.

4. The defendant filed an appeal before the Lower appellate Court. The only point canvassed before that court on behalf of the defendant was that the suit as against plaintiffs 2 to 7 having been barred on the day they sought to get themselves impleaded in the suit, the trial court was in error in decreeing the suit in its entirety. The Lower appellate Court found that by virtue of the provisions of the Kerala Joint Hindu Family System (Abolition) Act the appellant could not maintain the suit for and on behalf of his thavazhy by indicating his status as the karanavan. It held that the members of the thavazhy had become co-owners and the other co-owners not having come forward with the suit in the time the claim for the share of the other co-owners has become barred. It therefore modified the decree of the trial court and conf