A N RANGANATHA NAIDU Vs. SENTHAMARAI

JUDGEMENT

(1.) The second defendant in O. S. No. 148 of 1973 on the file of the Court of the Subordinate Judge of Tiruvannamalai is the appellant, Respondents 1 to 4 in the appeal are the plaintiff, a minor represented by next friend and guardian and defendants 1, 3 and 4 respectively.

(2.) The facts of the case may be briefly states as follows : The suit property originally belonged to one Subbammal. On 9-1-1956 the said Subbammal executed a settlement deed in respect of the suit property in favour of Rukmani Ammal. Ex. B. 10 is the registration copy of the settlement deed. The 4th defendant is the husband of Rukmani Ammal while the plaintiff (first respondent) is the only daughter of Rukmani Ammal; and the 4th defendant (sic) Rukmani Ammal died leaving the 4th defendant and the plaintiff as her heirs to the suit property. It is not disputed that the 4th defendant has taken a second wife and he has got a number of children through her. The entire suit property is 'an extent of 1.66 acres of wet land comprised in S. No. 224/2 in Chengam Taluk, Tiruvannamalai district. On 26-12-1970 the 4th defendant executed Ex. B-1 sale deed in favour of the first defendant. Ex. B-1 was executed by the 4th defendant for himself and as guardian of the minor plaintiff in respect of 83 cents of the suit property. The consideration was Rs. 16,000/- Thereafter, the 4th defendant executed Ex. B-15 sale deed on 2-7-1972 for himself and as guardian of the minor plaintiff in respect of the remaining 83 cents of the suit property in favour of the second defendant. The consideration for the said sale was also Rs. 16,000/- . The plaintiff has filed the present suit through her next friend and guardian Govindarajalu Naidu who is said to be her husband stating that Exs. B-1 and B-15 alienations effected by the 4th defendant as regards the minor plaintiff's half share in the suit property are not binding on the minor plaintiff and voidable at her instance. The sale deeds have not been executed for the benefit of the minor. The third defendant was impleaded in her capacity as a usufructuary mortgagee in respect of the suit property. The plaintiff, therefore, prayed for a decree for setting aside Exs. B-1 and B-15 sale deeds and for a division by metes and bounds and recovery of her 1/2 share in the suit property. The suit was no doubt filed in forma pauperis.

(3.) The first defendant filed a written statement. He admitted that the suit property originally belonged to Subbammal and that Subbammal settled the suit property on Rukmani Ammal. On the death of Rukmani Ammal, according to the first defendant, the 4th defendant became entitled to a half share in 1.66 acres viz. 83 cents. Since the 4th defendant himself had right over 83 cents of the suit property, ex. B-1 sale deed must be deemed to convey the 4th defendant's interest over the suit property to the first defendant. He also raised an alternative contention that even if Ex. B-1 were to be treated as an alienation on behalf of minor plaintiff also the alienation by the 4th defendant was for the benefit of the minor as it was executed for the discharge of the usufructuary mortgage in favour of the third defendant. He further pleaded that having conveyed his entire interest in the suit property to the first defendant under Ex. B-1, the 4th defendant had no right left with him to convey to the second defendant under Ex. B-15. He also pleaded that the property covered by sale deed Ex. B-15 was entirely different and was not the suit property at all. The first defendant further pleaded that he has filed O. S. No. 984 of 1972 on the file of the District Munsiff's court. Tiruvannamalai against the third defendant (wife of second defendant) for redemption of the usufructuary mortgage, further, even on the date of Ex. B.1 sale deed, the 4th defendant had executed Ex. B-13 an agreement in favour of the first defendant agreeing to convey his remaining half share in the entire 1.66 acres, if for any reason there was any trouble by the minor at a later stage in respect of the minor's share comprised in Ex. B-1 sale deed. In view of Ex. B-13 agreement the first defendant has further pleaded that Ex. B.15 sale deed by the 4th defendant in favour of the second defendant in contravention of the terms of Ex. B-13 agreement would not be valid. He also contended that the second defendant's right under Ex. B-15 would only be subject to his right under Ex. B-13.