KUPPA GOUNDAR Vs. SIVAPRAKASAM

JUDGEMENT

(1.) THIS revision arises out of an order passed by the District Munsif, Tirukoilur in o. S. No. 999 of 1971, holding that the suit is maintainable without setting aside the sale deed dated 21-4-1964, executed by Dhandapani Pillai to Murugesa Pillai. Such a decision was given by the District Munsif, while taking and trying the issue as to whether the suit without setting aside the sale deed dated 21-4-1964 is not maintainable, as a preliminary issue.

(2.) THE plaintiffs, who are respondents 1 to 4 herein, filed the suit to recover possession of the properties comprised in the sale deed dated 21-4-1964, Ex. B. 1. According to the plaintiffs, one Uthandia Pillai executed Ex. A. 1 settlement deed dated 21-3-1959 in favour of the first plaintiff and other plaintiffs who were not born at the time of Ex. A. 1. The very same Uthandia Pillai who is no other than the grandfather of the plaintiffs, executed Ex. A. 2 on 20-11-1959 making the first plaintiff as the sole legatee thereunder. Subsequent to the death of Uthandia Pillai, the plaintiffs' father Dhandapani Pillai executed the sale deed Ex. B. 1 dated 21-41964 in respect of the suit properties in favour of the first defendant (fifth respondent herein) making the minor sons of his as eo nomine parties and describing the properties sold as the joint family properties. The first defendant in turn sold the properties comprised under Ex. B. 1 to the second defendant, who is the petitioner herein. on 17-11-1965 for a consideration of Rs. 17,250. In order to get possession of the suit properties, the plaintiffs filed the suit O. S. No. 999 of 1971. In that suit, the above issue has been tried as preliminary issue and the court held that the suit is maintainable without setting aside the sale under Ex. B. 1. Aggrieved by the said decision, the second defendant, now in possession of the properties by right of purchase from the fifth respondent herein, filed this revision petition. His contention is that the suit is not maintainable without a prayer to set aside the sale under Ex. B. 1 and that court-fee must be paid therefor.

(3.) THIRU Sarvabhauman, learned counsel for the petitioner, relies upon the plaint wherein it has been alleged that the properties were settled upon the first plaintiff and his younger brothers, who are the other plaintiffs, and also that subsequently the will was executed by Uthandia Pillai on 22-11-1959 disposing of all interest in all the properties belonging to him exclusively and also his interest in the joint family properties, in favour of the plaintiffs. From these allegations, Thiru saravabhauman argues that since the properties belonged to minors, the sale effected by Dandhapani Pillai, father of the plaintiffs, representing the minors cannot be considered as sale in his capacity as the joint family manager, but can be considered only in his capacity as guardian for the minors and as such the plaintiffs ought to have prayed for setting aside the sale effected by their father under Ex. B. 1. He further argues that as per Section 8 of the Hindu Minority and guardianship Act, such a sale is 'voidable', and that unless there is a prayer for setting aside the sale, the sale effected under Ex. B. 1 must be considered as a valid one; if that is so, possession derived under the sale by the first defendant is valid and effective so far as the petitioner (second defendant) is concerned. He also makes mention of several decisions and it is enough to quote the one reported in Neelakantan v. Kumarasami Nadar, wherein a bench of this Court while considering the question as to whether Article 44 or article 144, Limitation Act, applies to an alienation by the manager of the joint family observed-