VARGHESE Vs. MARIAMKUTTY

JUDGEMENT

(1.) This second appeal was filed by the 4th defendant in the suit and on his death his legal representatives have come in as additional appellants 2 to 5. The appeal arises from a suit for partition of the plaint properties which is claimed as that belonging to the predecessor in interest of the plaintiffs, defendants 1 to 3 and 5 to 16. Two sale deeds, Exs. D1 and D2, have been executed for these properties, but according to the plaintiffs those sale deeds are not binding on the interests of the plaintiffs and therefore partition is prayed for avoiding these sale deeds. Kochuvareed, the father of the plaintiffs, to whom the suit properties belonged, died on 15-10-1117 leaving his heirs. His children were plaintiffs, defendants 2 and 3, one Lonappan, father of defendants 5 to 7, and Anthony, husband of the 8th defendant and father of defendants 9 to 16 and also his second wife, the first defendant. The 4th defendant obtained Ex. D1 sale deed dated 12-2-1951 from Anthony, Lonappan and the first defendant for items 1 and 2 in the plaint schedule and Ex. D2 sale deed dated 22-3-1952 from the 3rd defendant for item No. 3 in plaint schedule. In joining Ex. D1 sale deed the first defendant who was the mother of the plaintiffs and the second defendant purported to act as their guardian also. But the case of the plaintiffs is that in the sale deed Ex. D1 an oral partition was set up and in the written statement of the 4th defendant it is contended that the oral partition is said to have conferred the right over plaint items 1 and 2 to Anthony and Lonappan alone, so much so, according to the plaintiffs, first defendant did not join in Ex. D1 so as to convey any rights in items 1 and 2. With regard to the sale of item 3 under Ex. D2 the case of the plaintiffs is that even on the face of it would not operate to assign the interest of the plaintiffs as it does not purport to convey their interest, unless the 4th defendant is able to succeed in his case as to the oral partition between the legal heirs of the deceased Kochuvareed. The case of oral partition mentioned in Exs. D1 and D2 are denied by the plaintiffs. According to the law governing the parties the first plaintiff would be entitled to 1/16th share and second plaintiff to 3/16th share and a division of those share in respect of the suit properties is claimed in the plaint. The 4th defendant who contests the claim of the plaintiffs relies on the oral partition and subsequent alienations in respect of the plaint items by the persons who obtained those properties under the said oral partition. In the alternative it is contended that these deeds are binding on the plaintiffs as being supported by consideration and necessity binding on the minors. It is also contended that in any view of the matter the suit should be deemed to be barred by limitation, the first plaintiff having been a major even on the date of Ex. D1 and the second plaintiff having become a major more than three years before the institution of the suit.

(2.) A contention was urged in the court below and that has found acceptance by the court to the effect that the document Ex. D1 is not binding upon the plaintiffs for the reason that first defendant has not purported to convey any interest of the minors in executing Ex. D1. The question of avoidance of a document by any person would arise only if the interest of such person has been conveyed under the transfer. It is not because Ex. D1 on the face of it does not purport to convey any interest of the first defendant or her minor children that the courts below have come to its conclusion. The 4th defendant relies upon an oral partition and if the oral partition is true, then the properties conveyed under Ex. D1 having not been obtained by the first defendant or her children, there would be no conveyance of any interest of the minors by executing Ex. D1. Therefore, the court below has assumed that in the face of the pleadings of the 4th defendant it cannot be said that first defendant joined in Ex. D1 for the purpose of conveying her rights or the rights of her minor children. Certainly this approach does not appear to be correct. The document Ex. D1, on the face of it, purports to convey the rights of the executants and the plaintiffs represented by their mother being also executants of this document what is purported to be conveyed under the document must be taken as the rights of the plaintiffs also. The case of oral partition set up by the 4th defendant has been found to be not true and therefore the legal rights of the parties cannot be determined on the basis of such a plea. There is no plea in the written statement of the 4th defendant that the interests of the minors were not conveyed under Ex. D1. To read the plea of oral partition to interpret the legal effect of Ex. D1 in the manner it has been done is certainly not a correct approach to this question I therefore disagree with the court below in its reading of Ex. D1 as a document not conveying the interest of. the plaintiffs. It purports to convey such interest and in the face of the finding that the oral partition is not proved, it does in fact convey the rights of the plaintiffs also so far as suit items 1 and 2 are concerned. How far that conveyance would be effective is another question and that I propose to consider here.

(3.) The case regarding oral partition need not detain me because the courts below have concurrently held against the 4th defendant on this plea, and it is a finding on a question of fact. It has further been found that Ex. D2 sale deed is not binding on the plaintiffs because even the guardian is not a party to Ex.D2. That is executed solely by the 3rd defendant who certainly cannot convey any interest of the plaintiffs. Hence the challenge to Ex. D2 must necessarily succeed. It has also been found by the court below that on the date of execution of Ex. D1 the first plaintiff had already become a major. She is no party to the document. There is no question therefore of any representation of the Ist plaintiff through a guardian, and therefore so far as the first plaintiff is concerned Ex. D1 also must fail. The only other question is whether Ex. D1 will bind the second plaintiff who was a minor on the date of execution of that document and who was purported to be represented therein by the mother. The second plaintiff challenges Ex. D1 on the ground that it is wanting in consideration as well as necessity binding on her. On the question of consideration second plaintiff has not succeeded in the courts below and it has not been found by the courts that the document is wanting in consideration, and I see no reason to interfere with this. But what is urged before me is that the findings of the courts below amount to a finding of absence of necessity for execution of Ex. D1 sale deed. That of course is so. On the face of it no justification has been shown for alienating the property in which second plaintiff had also an interest. No necessity binding the minor has been proved and therefore I must take it, on the findings of the courts below and on the evidence before me, that Ex. D1 though supported by consideration is not supported by necessity binding upon the second plaintiff. Normally that would have been sufficient to uphold a claim of the second plaintiff to her share in respect of the properties covered by Ex. Dl. But the alienee, the 4th defendant meets this with the answer that, the suit having been instituted after three years of the second plaintiff attaining majority, though within 12 years of Ex. D1, the suit would be barred by limitation as the Article applicable to the suit would be Art.44 of the Limitation Act of 1908. This would depend upon the question whether Ex. D1 is void so far as the second plaintiff is concerned or it is only voidable. If Ex. D1 is void as against second plaintiff, there is no necessity to set aside that document. If possession has passed to the alienee under such a document it is sufficient if recovery of possession is sought for within 12 years of the date of suit and the appropriate Article of the Limitation Act would be Art.144. But if, on the other hand, the document is only voidable, and would be binding upon the minor unless it is set aside within the time limited by the provisions of the Limitation Act then the document will have to be avoided within the period prescribed. In the case of a minor whose property is transferred by the guardian and the transfer has to be set aside by a suit the Article of Limitation Act that would be applicable is Art.44. In this case the suit having been brought beyond the period of three years of attaining majority and that being as provided under Art.44 of the Limitation Act of 1908 the suit would be barred if Ex. D1 is considered as voidable as against the second plaintiff. The suit would be within time only if I hold that Ex. D1 sale deed which is found to be supported by consideration but not by necessity binding upon the minor is not avoidable but is void and that is the contention urged before me by the learned counsel for the respondents.