A natural guardian cannot represent minor's undivided interest in joint family property, and limitation must be assessed without regard to parties' pleas.

J U D G M E N T

The plaintiffs, two in number, filed the suit for declaration of their 2/7 rights over the plaint schedule property, to set aside Ext.A2 Sale Deed to the said extent, and for partition. The suit was concurrently dismissed by the courts.

2. The plaint schedule property has an extent of 64 cents. The plaintiffs and defendants 6 to 10 claim title over the property as per three Sale Deeds namely, Exts.A3 and A4 Sale Deeds of the year 1959 and 1961, and another Sale Deed number 449/1965. In the year 1975, the property was conveyed in favour of the predecessor of defendants 1 to 5 as per Ext.A2 Sale Deed. At the time of execution of the Sale Deed, the first plaintiff was a minor aged 1½ years and was represented by his mother, the 9th defendant. The second plaintiff was in the womb. The suit has been filed on the plaintiff's attaining majority. Ext.A2 Sale Deed is challenged mainly on two grounds viz., that it is not supported by adequate consideration, thus adversely affecting the interests of the minors; and secondly, the mother-9th defendant, was not competent to represent the minors in the sale.

3. The trial court, though found that the plaintiffs have right over 43 cents out of the plaint schedule 64 cents, dismissed the suit holding that the plaintiffs have not established their right over the entire plaint schedule property. On appeal, the first appellate court held the suit to be barred by limitation, and accordingly affirmed the dismissal of the suit. It is aggrieved thereby that the Regular Second Appeal is filed.

4. Heard Sri.Nimesh Thomas, learned counsel for the appellants-plaintiffs and Sri.R.Rajasekharan Pillai, learned counsel for respondents 1 to 3-defendants 1 to 3, and Sri.Abraham Jacob George, learned counsel appearing on behalf of respondents 6 to 9, on the following substantial questions of law :- (1) When the suit is not ex facie barred by limitation and there was no plea of limitation urged by the defendants, nor an issue raised regarding limitation, did not the lower appellate court err in dismissing the suit holding it to be barred by limitation?

(2) Is the suit barred by limitation?

(3) On the finding by the Courts that a portion of the plaint schedule property is the joint family property of the plaintiffs, is Ext.A2 Sale Deed executed by the mother as guardian of the minors void in so far as their shares over that portion of the property? (4) Has there not been a failure to exercise jurisdiction by the Courts when it omitted to consider the challenge against Ext.A2 Sale Deed on the ground of, inadequacy of consideration resulting in adversely affecting the minor's interest?

5. Section 3 (1) of the Indian Limitation Act, 1963 (hereinafter referred to as, “the Act”) reads thus, 3. Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

In V.M. Salgaocar & Bros. v. Board of Trustees of Port of Mormugao &

Anr. (2005) 4 SCC 613 , the Apex Court held, “20. The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation.”

Limitation is a jurisdictional issue and it is for the Court to consider whether a suit is instituted within time. This is irrespective of a plea of limitation by the defendant.[See in Foreshore Cooperative Housing Society Ltd. v. Praveen D. Desai (Dead) through Legal Representatives and Ors. (2015) 6 SCC 412 ]. Limitation is a mixed question of law and fact. Starting point of limitation is determinative as to whether a suit is filed within the period