BALASUBRAMANIAM Vs. PURUSHOTHAMAN

JUDGEMENT

(1.) DEFENDANTS 3 and 5 who are the legal representatives of the first defendant in O. S. No. 97 of 1968, on the file of the Court of the District Munsif, kallakurichi, who lost before the courts below, are the appellants herein. Respondents 1 and 2, the plaintiffs, instituted the suit for declaration of title to, and recovery of possession of the suit properties after setting aside two sale deeds dated 25-4-1955 marked as Ex. B-3 and 4-8-1959 marked as Ex. B-4, executed by the second defendant, mother of the plaintiffs, on her own behalf and as guardian of the plaintiffs, in favour of the first defendant. There is no dispute about the fact that the properties were settled on the secere defendant and the plaintiffs. Equally there is no dispute about the fact that the second defendant executed the two sale deeds, Ex. B-3 for a consideration of Rs. 600 and Ex. B-4 for a consideration of Rs. 1800 purporting to act on her behalf as well as on behalf of her minor children. The suit was instituted for canceling these two sale deeds and for recovering possession of the properties on the ground that the sale deeds were not binding on the minors. Both the courts below found that the sale deeds were executed for binding purposes, but still they held that Ex. B-4 sale deed would not be binding on the plaintiffs, while ex. B-3 sale deed would be binding. The reason for holding the Ex. B-4 sale deed would not be binding on the minors was that on the date of the sale deed the Hindu Minority and Guardianship Act of 1956 was in force, and under section 8 of that Act, the guardian had no right to dispose of the minors' interest without the permission of the court. It is on this basis the courts below held that Ex. B-4 would not be binding, and they passed a preliminary decree for partition of the plaintiffs' two-third share in items 1 to 3, viz. , those items covered by Ex. B-4 sale deed. The first defendant succeeded with regard to Ex. B-3 sale deed. Against the decree passed by the trial court with regard to Ex. B-4 sale deed, the appellants herein preferred an appeal. The learned subordinate Judge of Cuddalore, by judgment dated 12-7-1974, dismissed the appeal. Hence the present second appeal by defendants 3 and 5.

(2.) THE learned counsel for the appellants put forward three contentions to challenge the decrees of the courts below; the first is that prior to the institution of the present suit, there was an original petition for permission of the court to sue in forma pauperis and that petition, viz. , O. P. No. 36 of 1967, was dismissed though for default, with costs in favour o the first defendant. Consequently under Order XXXIII, Rule 5 C. P. C. without his costs of that petition being paid, this suit should not have been entertained. The second contention is that the first plaintiff having been born on 3-12-1945 and the suit having been instituted on 16-12-1967, the suit was barred by limitation not merely with regard to the first plaintiff but with regard to the second plaintiff also, as the cause of action was the same. The third contention is that when the courts below granted a decree in favour of the plaintiffs, having regard to the finding that the purpose for which the sale deed was executed was binding on the plaintiffs, the court below should have directed the plaintiffs to refund two-thirds share of the consideration for Ex. B-4.

(3.) AS far as the first contention is concerned, I am clearly of the opinion that the same is unsustainable. Order XXXIII, Rule 15 C. P. C. reads as follows-