NEENAKSHAMMA Vs. N SASWATHANARAYANA

JUDGEMENT

(1.) Two questions of law have been canvassed before this court, viz., (1) that the plaintiff's suit is barred by Article 44 of the Limitation Act and (2) that on a proper appreciation of the evidence on record, the courts below should have come to the conclusion that Exhibits XIII to XVI were executed by Laksbmidevamma as the guardian of the minor plaintiff.

(2.) To properly appreciate the contentions advanced, a few facts need to be stated. The plaintiff filed the present suit, which has given rise to this appeal, for a declaration that the alienations under Exhibits XIII to XVI effected by his mother Lakshmidevamma are not binding on him as the same were not effected by her as his guardian. In the plaint it is specifically stated that the plaintiff does not seek to set aside the deeds in question as he was not a party either directly or constructively to those documents. In substance the suit is one for possession on the basis of title.

(3.) On the basis of the averments found in the plaint there is no room for the application of Article 44 of the Limitation Act. The said Article applies to a suit instituted by a ward on attaining majority to set aside a transfer made by his guardian. As mentioned earlier, tho plaintiff very specifically says that he does not and need not seek to set aside the sale deeds in question. He proceeds on the basis that the alienations in question are non-est and the defendants-alienees are mere trespassers on the properties. Either he succeeds in making good the allegations made in the plaint or he does not. If he succeeds in establishing the facts mentioned by him in his plaint, then there is no room for the application of Article 44 of the Limitation Act. If he fails to establish these facts then there is no need to consider the applicability of Article 44, as the suit will have to fail for failure to claim necessary reliefs. In other words the frame of the suit will be bad. Hence it is unnecessary to consider the scope of Article 44.