ANJALAI Vs. ARUMUGA CHETTIAR

JUDGEMENT

(1.) THE appeal is directed against the judgment of the learned Subordinate Judge, Cuddalore in A.S. No. 136 of 1985 in confirmimg that of the learned District Munsif, Panruti in O.S. No.351 of 1982. THE plaintiffs in the suit are the appellants in the above second appeal.

(2.) THE plaintiff has filed the suit for declaration of the plaintiffs title to the suit property, restraining the 2nd defendant from interfering with the plaintiffs' enjoyment of the suit property. According to the plaintiffs, the suit property and three other items originally belonged to one Peria Pillai Ammal and after her death, about 45 years back, her daughter, Jagadambal Ammal, inherited them and enjoyed them in her own right absolutely. THE said Peria Pillai Ammal while she was alive, and at the time of her death expressed a wish that the properties, after the lifetime of Jagadambal, should go to her son's family to be enjoyed by the heirs of her son absolutely." THErefore, in keeping with the wish of Perial Pillai Ammal, her daughter, Jagadambal Ammal, executed a registered settlement deed in favour of her brother's wife.Kullammal, as guardian of her minor Children, the plaintiff and his deceased brother, Sabbarayan. THE terms of the said settlement deed dated 22.7.1937 are that Kullammal should function as guardian of her minor children, above named, without power of alienation and on their attaining majority the properties should be handed over to them to be enjoyed by them absolutely as per the wish of their grandmother Peria Pillai Ammal. Kullammal took possession of the 4 items of properties and was managing as such peacefully and prudently.' Kullammal died about 15 years back prior to the filing of the suit and Subbarayan, brother of the plaintiff was also died a year back unmarried and issueless. THErefore, the plaintiff alone was the sole owner of the properties mentioned in the settlement deed dated 22.7.1937.(ExA5). It was further contended that Kullammal, during her lifetime, and the plaintiff, after her death were paying kist for the properties and were enjoying the properties and were dealing with them in their own right. While so, on 15.12.1980, the second defendant was giving out in the village that the first defendant had sold the suit property of an extent of 0.75 cents of Punja land to him and that he wants to construct a thatched house in the suit property. THE first defendant had never asserted any right over the suit property. He cannot have any right to any of the properties in view of the long enjoyment of the same for over 45 years by Jagadambal, Kullammal and the plaintiff. THE 2nd defendant attempts to enter the suit property forcibly in denial of the plaintiffs right. THErefore, the plaintiff was entitled to restrain the defendants. THEre was a fire accident in th e village and the plaintiff?s thatched house was gutted to ashes. Along with it valuable documents, kist receipts, grains etc. were also reduced to ashes. THErefore, he obtained a registration copy of the settlement deed dated 22.7.1937 and has obtained two affidavits of respectable villagers to show his possession of the settlement properties.

(3.) PER contra, Mr.G.Rajagopalan, learned counsel appearing for the respondents contends that the transaction is not a void one but only a voidable one, having regard to the Judgment of the Supreme Court reported in Divyadip Singh and others v. Ram Cachan Mishra and others, JT 1997 (1) S.C. 504. Reliance is placed on the observation that when the natural guardian without the previous permission of the Court had alienated the property, it was voidable at the instance .of the minor. Therefore, according to the learned counsel, the sale as well as the release being only voidable and not void, there was an obligation on the part of the plaintiff to have prayed, for to set aside the earlier transaction. He would also rely upon the judgment of the Full Bench of this Court reported in Mir Ghulam Hussain Sahib v. Ayesha Bibi and others, A.I.R. 1941 Mad. 481 wherein the Full Bench held that the transfer by guardian appointed by Court without. Court sanction is voidable and not void. It is valid unless set aside at the instance of minors, within limitation.