ANGAMMAL AND ORS. Vs. BALASUBRAMANIAM AND ANR.

JUDGEMENT

(1.) Defendants 1 to 5 and 7, who had lost in the Courts below are the appellants in this second appeal, which arises out of a suit instituted by the first respondent herein for recovery of possession of the suit property and for recovery of a sum of Rs. 1,290 towards past mesne profits and also for future mesne profits. The suit properties according to the first respondent, were the self -acquired properties of one Nataraja Pillai, his paternal grandfather. Nataraja Pillai, executed a settlement deed on 2nd March, 1951, in respect of the suit properties giving a life estate in favour of his wife Ponnukkannu Achi and the vested remainder in favour of the first respondent. The first respondent, at the time of the settlement, was only a child, aged about 4 months. According to the terms of the settlement deed, Ponnukkannu is to have a life estate without any powers of alienation. While so, Ponnukkannu Achi purporting to act as guardian of the then minor first respondent and on her own behalf, sold the suit properties to one Shanmugham Pillai on 15th July, 1957. It was claimed by the first respondent that the said sale was invalid so far as his right in the property is concerned as Ponnukkannu Achi is not the legal guardian of the first respondent. In addition, it was also contended by the first respondent that the debts referred to in the sale deed were all false and that there was no necessity also for the sale of the properties and that the sale was also not for the benefit of the then minor first respondent and it is therefore, null and void. The first respondent, therefore, claimed that he is entitled to ignore the sale deed and recover possession of the properties. Ponnukkannu Achi appears to have died later and thereafter, the first respondent claimed that he is entitled to possession of the suit properties from the legal representatives of the deceased vendee from Ponnukkannu Achi viz., Shanmugham Pillai whose legal representatives are the appellants. The fifth appellant is an alienee of a portion of the suit properties. According to the first respondent, the lands will yield about 18 to 20 kalams per mah and the lands are double crop lands and he restricted his claim to mesne profits for three years prior to the suit at 7 kalams per mah i.e., 35 kalams per year at the rate of Rs 13 per kalam. After deducting the kist of about Rs. 25 the first respondent claimed past mesne profits for the years 1968 -69, 1,969 -70 and 1970 -71 at a sum of Rs. 1290 besides future mesne profits.

(2.) The suit was resisted mainly by the first appellant whose written statement was adopted by the other appellants and their case is as follows: It was contended by them that the allegation that the suit properties were the ancestral properties of Nataraja Pillai is not true. The settlement deed dated 2nd March, 1951, executed by Nataraja provided for a life enjoyment for Ponnukkannu and since Ponnukkannu died after the Hindu Succession Act XXX of 1956, the estate given to Ponnukkannu became enlarged into a full estate and therefore, the first respondent was not entitled to any rights under the settlement and had no right whatever to impugned the sale deed in favour of Shanmugham Pillai. The further case of the appellants was that the sale deed dated 15th July, 1957 in favour of Shanmugham Pillai is only by the legal guardian of the first respondent and he brought about the transaction of sale and also attested the sale deed. It was claimed by the appellants that besides attesting the sale deed, he had also executed a registered security bond in favour of Shanmugham Pillai guaranteeing the title of the vendors in favour of Shanmugham Pillai and that security bond is over the joint family properties belonging to the first respondent and his father and since the security is binding on the first respondent also, he cannot question the sale deed in favour of Shanmugham Pillai. The appellant would have it that though the sale was effected in the name of Ponnukkannu, it was really by the legal guardian and therefore, the first respondent cannot ignore the same and that he has got to sue so set aside that document. In addition, a plea was also raised that the sale will be binding upon the first respondent as it was for the purpose of necessity and benefit of the first respondent and therefore, such a sale could not be impeached by the first respondent. A plea of limitation was also raised.

(3.) The learned District Munsif, Thiruvarur, who tried the suit held that the suit for seeking to set aside the sale deed in favour of Shanmugham Pillai is maintainable, that the sale deed has to be held to be not binding on the first respondent and that the suit was not barred by time. It was further held that Ponnukkannu Achi had only a life estate under the settlement deed executed by Nataraja Pillai and that the first respondent is entitled to a sum of Rs. 900 by way of past profits. The suit was, therefore, decreed by the trial Court for recovery of possession along with the past mesne profits of Rs. 900. With reference to the future mesne profits claimed, an enquiry under Order 20, Rule 12, Civil Procedure Code, was directed. The liability of the second respondent for past and future profits to the first respondent was negatived. Aggrieved by that judgment and decrees, the appellants preferred an appeal in A.S. No. 73 of 1976, District Court, East Thanjavur, at Nagapattinam. The learned District Judge held that the suit, without seeking to set aside the sale deed in favour of Shanmugham Pillai, is maintainable and that the said sale is not binding upon the first respondent. It was held, agreeing with the trial Court, that the suit was in time. The past, mesne profits fixed by the trial Court at Rs. 900 was held to be reasonable and that it did not call for any interference. The direction regarding the enquiry into the future mesne profits was maintained and the appeal was dismissed.