AMIRTHA KUDUMBAN Vs. SORNAM KUDUMBAN

JUDGEMENT

(1.) THIS second appeal comes by way of reference from Gokulakrishnan J. The question referred to this Full Bench is: "whether a transferee from a minor, after he attained majority, can file a suit to set aside the alienation made by the minor's guardian or the said right is one to be exercised only by the minor?"

(2.) THE facts of the case on which the question falls for determination may be briefly set out. The suit property, a piece of land of an extent of 1 acre 12 cents in the village of Vettivayal, Thanjavur Dist. , originally belonged to one veerammal, who purchased the same in the year 1948. Veerammal had a daughter by name Kaliammal. Veerammal died a few months after the purchase of the suit property leaving behind her surviving her minor daughter Kaliammal and her husband, Kandayya. Subsequent to Veerammal's death, Kandayya married again. Kaliammal was then a minor. She left her father's house to reside with her material grandfather which was protecting and maintaining her during her minority. Meanwhile, on 29-5-1958, Kandayya executed an othi on the suit property in favour of one Jamalula Maracayar. The othi was subsequently discharged. On 21-10-1959 Kandayya sold the property to one jainulavudeen, purporting to do so for himself and on behalf of his minor daughter, Kaliammal. Jainulavudeen, in turn, sold the suit property to one amirtham on 23-4-1966. In time, Kaliammal attained majority. She regarded the sake deed executed by her father in favour of Jainulavudeen as not binding on her. She ignored it, and proceeded to sell the property herself to one sornam under sale deed dated 26-5-1966. Thereafter, Sornam filed the suit, O. S. 491 of 1968, on the file of the court of the District Munsif, Pattukottai, against Amirtham to set aside the sale of Kandayya dated 21-10-1959 and for recovery of possession. Amirtham resisted the suit on many grounds. The trial court held against him on all the issues. The suit was decreed in favour of sornam as prayed for. Amirtham appealed to the court of the Subordinate judge of Thanjavur. But the appeal was dismissed. Thereupon, Amirtham filed s. A. No. 89 of 1972, which has now come before this Full Bench on reference by Gokulakrishnan, J.

(3.) THE principal question raised before Gokulakrishnan, J. , and now before us, is whether the plaintiff Sornam, as purchaser from Kaliammal, is entitled to file the suit to set aside the sale made by her father and guardian Kandayya on 2110-1959 in favour of Jainalavudeen from whom the defendant Amirtham subsequently purchased the suit property? While raising this question in this form, Mr. Martin, learned counsel for the appellant, could not dispute the following findings of the courts below; (i) The suit property belonged absolutely to Veerammal, and, after her death, it devolved on her heir and minor daughter, Kaliammal, as her absolute property; (ii) After the death of veerammal, minor Kaliammal was not living with her father Kandayya or under his protection; (iii) The mortgage executed by Kandayya as well as the sale of the property made by him in favour of Jainulavudeen were not for the benefit of the minor or for legal necessity; (iv) At the time Kandayya sold the property to jainalavudeen, Kaliammal was minor; (v) The plaintiff Sornam purchased the suit property for valuable consideration from Kaliammal after she had attained majority; and (vi) Under the sale deed in favour of Sornam, what was purported to be transferred by Kaliammal was the entire fee simple in the property.