MOHIDEEN ALIAS AKBAR Vs. SOWBAGYAM AMMAL

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and judgment in A. S. No. 244/1994 preferred by the plaintiff, who has filed O. S. No. 587/1996 on the file of the Court of Additional District Munsif, Kallakurichi for partition of plaintiff's one half share in the plaint schedule property and also for past and future mesne profits. The learned Additional District Munsif, has decreed the suit in respect of plaint schedule item No. 1. The question of mesne profits was relegated to a separate proceedings under Order 20 Rule 18 or C. P. C. On appeal the first appellate Court in A. S. No. 244/1994 has allowed the appeal setting aside the decree and judgment in O. S. No. 596/1987 on the file of the Additional District Munsif, Kallakurichi, thereby dismissing the suit in toto. Hence, the present second appeal before this Court by the plaintiff.

(2.) THE facts relevant for the purpose of deciding this second appeal as narrated in the plaint are as follows:-The plaintiff and the first defendant are brothers. The plaint schedule property originally belonged to the plaintiff's paternal grand father Immam Sahib, who had executed a settlement deed in favour of the plaintiff and the first defendant on 29. 08. 1969. At the time of the execution of the above said settlement deed, the plaintiff was a minor. Hence, the plaintiff's mother was appointed as a guardian, who had taken possession of the suit property in lieu of the above said settlement deed. As per the settlement deed, the first defendant and the plaintiff are each entitled to one half share in the plaint schedule property. Without any right or title in respect of the suit property the mother of the plaintiff had executed a sale deed in respect of plaint item No. 1 property in favour of the second defendant on 29. 1. 1973. The plaintiff reliably understand that his mother had executed another sale deed dated 9. 5. 1973 in respect of item No. 2 infavour of the 3rd defendant. The plaintiff's father is still alive with good health. Hence, the mother of the plaintiff will not be a legal guardian in respect of the suit properties. Hence, the sale deed executed by the mother in respect of the suit property are void and will not bind neither the plaintiff nor the first defendant. The plaintiff need not set aside those sale deeds. The plaintiff was born in June 1968. Excluding the plaintiff, the first defendant is enjoying the suit property along with D2 and D3 inspite of the repeated demand from June 1986 by the plaintiff to partition the property, the defendants refused to do so. The plaintiff is entitled to one half share in the plaint schedule properties. The first defendant is entitled to the remaining one half share. The plaintiff is entitled to get the amount not lessthan Rs. 600/- towards mesne profits per year. The second defendant is liable to pay Rs. 100/- towards mesne profits per year to the plaintiff. The plaintiff is also entitled to the future mesne profits in the above line. Even though Defendants 2 and 3 are in possession of the plaint schedule property for more than 12 years, since the plaintiff has filed the suit before attaining the age of 21 years, the suit is not barred by limitation. Hence, the suit.

(3.) THE defendant 1 and 2 remind ex-parte. The third defendant in his written statement would state that the sale deed executed by the plaintiff's mother Jamilabi in favour of this defendant on 9. 5. 1973 is valid document and not a voidable document as alleged in the plaint. It is only a voidable transaction and as the plaintiff has not prayed for setting aside the sale deed, the suit as framed is not maintainable. The plaintiff is aged more than 21 on the date of presentation of the plaint and so the suit is also barred by limitation. The allegation in the plaint that the plaintiff was born in June 1968 is not true. As this defendant is in possession of suit item 2 from 1973, this defendant has acquired title by prescription to suit item 2. This defendant has purchased suit item 2 from Jamilabi under a registered sale deed dated 9. 5. 1973 for valuable consideration of Rs. 5,000/- for discharge of antecedent debts, family expenses and for benefit of the plaintiff's family. The recitals in the sale deed may be treated as part of his written statement. The said sale deed is true, valid and fully supported by consideration and it is binding upon the plaintiff. In view of the prior proceedings, in O. S. No. 605/1973 which has been affirmed by Sub-Court, Cuddalore in O. S. NO. 168/1975, the present suit is barred by resjudicata and the plaintiff cannot be heard to say that the sale deed in favour of this defendant is void. Mother Jamilabi, as a settlee was competent to execute the sale deed on behalf of the then minor plaintiff. This defendant has effected improvements to the suit property spending more than Rs. 10,000/- and so the plaintiff has come forward with this suit to gain unjust enrichment. Further the sale deed has been executed toward the discharge of debts which are binding upon the plaintiff. Therefore the plaintiff cannot merely sue for possession of his half share in the suit properties when the prior debts are binding upon the plaintiff. The suit item No. 2 will not yield Rs. 500/- per annum as alleged in the plaint. There will be a net yield of only Rs. 250/- per annum. The plaintiff is not entitled to any mesne profits from this defendant. This defendant denies all other allegations made in the plaint. Therefore this defendant prays that the suit may be dismissed with costs.