MYLAVARAPU SUBBA RAO Vs. MANGALAMPALLI RAMAMURTI

JUDGEMENT

(1.) This Second Appeal raises an important question of law as to whether a gift executed by a natural guardian has to be set aside within a period of three years under Article 44 of the Limitation Act or not. It is stated by the learned advocates appearing for both sides that there is only a decision of a single Judge of the Madras High Court in Rangaswamy Gounder v. Marappa Gounder, 1952 Mad WN 733, bearing on this point. As, in my opinion, the point is an important one, it is necessary to have an authoritative ruling of this Court. I, therefore, refer this matter under Rule 1 of the Appellate Side Rules to a Bench.

(2.) By subsequent amendment a further prayer was added that if for any reason the Court should hold the cancellation of the aforesaid gift necessary, the deed may be set aside. The written statement sets up the defences of ante-adoption agreement as well as of limitation. It alleges that Sitamma was desirous of adopting the donee's son, he would accede, thereafter she took the appellant in adoption on the natural father consenting to an acre of land being given away, and in pursuance of the agreement the suit land was bestowed. Article 44 of the Limitation Act was pleaded as having barred the suit; for the deed was otherwise voidable and the claim to avoid it had been instituted within three years of the claimant attaining majority. The possession of the land was admitted to have been taken on Sitamma's death.

(3.) The Trial Court decreed possession, holding the pre-adoption arrangement as proved, and the guardian to be competent to gift the property. It also directed future profits to be gone into in appropriate proceedings under Order 20, Rule 12, Civil Procedure Code. The Court further held the adoptive mother to be an executrix and what was purported to be done by the deed of gift to be beyond her specific powers and, therefore, void.