CHINNAIAH KOWNDER Vs. KATTAYYA KOWNDER

JUDGEMENT

(1.) THE defendant is the appellant. The suit was filed by the respondent for a declaration of his title to the suit property and for an injunction. The suit property originally belonged to the defendant and his elder brother one Rama gounder. In their hands it was a joint family property. The elder brother of the defendant died somewhere in the year 1950 when the defendant was a minor. The defendant's parents had died earlier than that. Therefore the defendant was brought up by his maternal uncle. The maternal uncle sold the property to the plaintiff on 12-11-1956 as guardian of the defendant who was then minor. The present suit was filed by the plaintiff on 21-8-1970, as already stated for a declaration and injunction. In the plaint it was stated that at the time when the sale deed was executed on 12-11-1956. the defendant was about 17 years old. But this was denied by the defendant in the written statement and he contended that he was only about 11 years old at the time of the transaction. The main defence of the defendant was that the maternal uncle was not the legal guardian or the de facto guardian and that the sale deed in favour of the plaintiff was void and inoperative. The defendant also pleaded that the sale was not supported by consideration and it was also not for necessity binding on the minor. Both the courts below have concurrently hold that though the sale deed by the maternal uncle was void and inoperative both on the ground that it was not for necessity or for any binding purposes, and also on the ground that the maternal uncle was neither a legal nor a de facto guardian of the minor, the plaintiff is entitled to the declaration and injunction as on the date of filing of the suit, he had prescribed title to the suit property by adverse possession.

(2.) IN this second appeal, the learned counsel for the defendant-appellant contended that since the transaction was held to be void, the period of limitation for prescribing title by adverse possession is 12 years from the date of the defendant attaining the age of majority, that the defendant has stated in the written statement, that he was only 11 years in 1956 and he would have attained the age of majority only in 1963, and if 12 years is reckoned from 1963, the plaintiff should prove adverse possession till 1975 in order to get a declaration of title on the basis of adverse possession and since the suit itself was filed on 21-9-1970, the plaintiff was not entitled to the declaration of title as prayed for.

(3.) THE defendant was 17 years old at the time of the sale in 1956, and therefore, he is not correct in contending that he was only 11 years old. There is no finding on this question by the Courts below. But in view of the categorical statement in the written statement that he was only 26 years old in 1971, and 11 years of the age in 1956, we shall proceed to consider the question on the basis that the plaintiff was only 11 years old in 1956.