RAMAN VELAYUDHAN Vs. VELAYUDHAN SREEDHARAN

JUDGEMENT

(1.) The only question is whether the court below was right in setting aside Ext. I even as regards the 1/5 share of the 1st plaintiff. The Trial Court had found that Ext. 1 sale of makkathayam property belonging to the plaintiffs 1 to 4 and the 1st defendant executed by the grandmother, the 3rd defendant in favour of the 2nd defendant was wanting in authority and also in consideration and necessity and not liable to be set aside. But as in the opinion of that court the 1st plaintiff was admittedly more than 21 years old at date of suit and Art.44 of the Limitation Act applied to the case, the sale was beyond question as regards the 1st plaintiffs 1/5 share as regards the 1st defendants share, there was a release by her in favour of the alienors and the question did not arise as regards the validity of Ext. I. The lower appellate court on the other hand found that the 1st plaintiff had not really attained 21 at date of suit and on that basis extended the setting aside of Ext. I so as to cover the 1st plaintiffs 1/5 share as well.

(2.) Learned counsel for the 2nd defendant appellant contends before me that notwithstanding the attempted alteration of the 1st plaintiffs age in the cause title of the plaint from 22 to 21, para 18 of the plaint left so far unaltered was clear in its admission that 1st plaintiff became major by Chingom 1115 and the plaint filed in Vrischigom 1118 must necessarily have been filed after the 1st plaintiff completed 21. He also referred to the 1st plaintiffs deposition as Pw. 4 when examined in 1123 Vrischigam the 1st plaintiff gave her age as 26; consistent with her attainment of majority by 1115 Chingom. The incidental statement that he was five years of age in 1103, which was made much of by the court below had no consistency behind it and so was to be ignored. In my opinion this contention is right. If so there can be no doubt that the 1st plaintiff had attained majority beyond more than 3 years from the date of the plaint. The consequence would be that the suit would be barred as regards the 1st plaintiffs 1/5 share as held by the Trial Court if Art.44 applied as assumed by both the courts below.

(3.) But learned counsel for the plaintiffs respondents urges that it is not Art.44 but Art.142 or 144 that really applies to the case and if so there can be no bar of limitation or adverse possession. I think this argument is right and should be accepted. Now Art.44 applies to suits to set aside a transfer of property by a guardian and instituted by a ward who has attained majority. The period fixed is 3 years from when the ward attained majority. The question is does this expression guardian comprise de facto guardian in the position of the 3rd defendant. In my opinion it does not. No doubt such de-facto guardians are recognised by Hindu Law as capable of transferring the minors property for valid necessity and transfers by such guardians without necessity are not void but only voidable. But this only means that these defective transfers are capable of ratification by the minor on attaining majority and not that they are binding on the minor until set aside. Reference may also be made in this connection to AIR 1951 Mad. 817 where the principle was laid down after detailed discussion that it is Art.142 or 144 and not Art.44 that applies to suits for recovery of possession after setting aside defective transfers by de-facto guardian as here. See also Chitaley Limitation Act, Vol. 2, p. 1188, 3rd Edn.