KOYA ANKAMMA Vs. KONAGANCHI KAMESWARAMMA

JUDGEMENT

(1.) This second appeal raises a point of limitation. There were two undivided cousins and at a time when both of them were minors, their mothers acting as guardians alienated certain properties belonging to the two minors. One of the minors died later on and the present suit is brought by the surviving minor to recover the property from the alienee on the ground that the alienation was beyond the power of the guardians to make. The suit has been instituted within twelve years of the alienation but more than three years after the plaintiff attained majority. The Courts below have dismissed the suit as barred by Art. 44 of the Limitation Act, so far as these items are concerned.

(2.) On behalf of the appellant, Mr. Lakshmiah has raised three points:(1) that Art. 44 has no application to the case at all, because the two minor cousins being members of a joint Hindu family it will not be correct to speak of their mothers as guardians in any legal sense, as contemplated by Art. 44; (2) that as the suit has been filed within twelve years of the alienation, the plaintiff is entitled to the benefit of Art. 144 of the Limitation Act even though more than three years may have elapsed after he has attained majority; (3) that the suit cannot be governed by Art. 44 of the Limitation Act so far as the deceased cousin's share is concerned.

(3.) On the first point, he relies upon the observations in Appanna Prasada Panda V/s. Appanna Mahapatro (1917) 40 I.C. 145, Thirupathi Raju V/s. Venkata Raju (1916) 40 I.C. 695 and Kathaperumal Thevan V/s. Ramalinga Thevan (1914) 27 I.C. 695, where referring to the judgment of the Privy Council in Gharib-ullah V/s. Khalak Singh (1903) I.L.R. 25 All. 407 it has been pointed out that a minor's interest in an undivided Hindu family is not such an interest or property that a guardian can be appointed or predicated in respect of it. I must however observe that in both these cases there were other adult co-parceners and the legal guardianship of the minor co-parcener was therefore held to vest in the adult co-parcener. In the present case, there were no adult co-parceners at all. The application of the dictum in Gharib-ullah V/s. Khalak Singh (1903) I.L.R. 25 All. 407 to such cases has been discussed by Jenkins, C.J., in Bindaji V/s. Mathurabai (1905) I.L.R. 30 Bom. 152 though it was not in connection with any question of limitation : see also Ramachandra V/s. Krishnarao (1908) I.L.R. 32 Bom. 259. There are at least two cases of this Court where during the minority of the adult members of a co-parcenary, alienations have been made by persons purporting to act as guardians and the Court has applied Art. 44 of the Limitation Act to suits to set aside such alienations: See Doraisami Serumadan V/s. Nondisami Saluvan (1912) I.L.R. 38 Mad. 118 : 25 M.L.J. 405 and Surayya V/s. Subbamma (1927) 53 M.L.J. 667. I therefore overrule the first contention.