CHENGANAKATTIL MOIDEEN Vs. POTTENGAL KUNHALIKUTTI

JUDGEMENT

(1.) This is an appeal from the order of the District Judge of South Malabar dated 22nd December 1932 in appeal from the decree of the District Munsif of Tirur dated 29bh September 1931, remanding the suit for fresh disposal according to few. The suit was one brought for partition and separate possession of 15 out of 16 shares in the plaint properties with arrears of mesne profits, etc. The properties belonged originally in Jenm to one Kunhayathru, the father of defendants 1 to 3, and the husband of defendant 4. After the death of this man, and when defendants 1 to 3 were minors, the properties were sold by defendant 4 in her own capacity and as guardian of defendants 1 to 3. This assignment by her took place in 1911 when the eldest of defendants 1 to 3 was only 6 years old. In March 1929 the plaintiff got an assignment (Ex. A) from defendants 1 and 2 of the rights of defendants 1 to 3 in respect of the plaint properties and it is on this assignment the suit is based, the contention of the plaintiff being that the sale by defendant 4 of the properties to defendant 5's predecessor- in-title, Kunhi Koya was not valid so far as the shares of defendants 1 to 3 in the properties are concerned. The suit was resisted by defendant 5 and his mortgagee, defendant 6, and a large number of issues were framed and the District Munsif dismissed the suit with costs. The grounds on which the suit was dismissed by the District Munsif were that the suit was barred by adverse possession and limitation and that defendants 1 to 3 were estopped from impugning the validity of the sale deed executed by their mother, defendant 4, in favour of defendant 5's predecessor-in-title in 1911. In appeal by the plaintiff to the District Judge two points were raised, namely that the sale in favour of defendant 5's predecessor in-title was nominal and was not intended to take effect and that the suit was not barred by limitation. On the first point the decision of the District Judge was against the plaintiff and on the second point his decision was in favour of the plaintiff. He came to the conclusion that the suit was not barred by limitation as defendants 1 and 2 were not shown to have had knowledge of the sale and that there had been no ouster so far as they were concerned for more than 12 years prior to the suit. As regards defendant 3's share it was conceded before him by the plaintiff's advocate that he had no case as defendant 3 was a major when his share was transferred to the plaintiff in 1929 by defendant 2 purporting to act as his guardian, and the appeal was abandoned in respect of that share.

(2.) The present appeal, which is by defendants 5 and 6, raises two points, namely (1) whether the suit is barred by limitation, in other words, whether defendant 5 has acquired title to the plaint properties by adverse possession for over 12 years before the suit was instituted; and (2) whether there is any estoppel against defendants 1 and 2, The latter point can be dealt with very briefly. There is nothing to support the estoppel which is pleaded in this case. Apparently the estoppel is based on the contention that because some other properties were purchased with the money that was obtained by the sale of the plaint properties to defendant 5's predecessor-in-title in 1911, defendants 1 and 2 are estopped from impugning the sale in favour of defendant 5's predecessor. It must be remembered that at the time of the sale as well as of the purchase of other property, these defendants were minors, aged 6 years and leas and it is not shown how the purchase of property with the sale proceeds of the plaint properties prevents them from denying the validity of the sale in favour of defendant 5's predecessor. There can be no possible basis for a plea of estoppel and I have no doubt that this point was not pressed in the appeal simply because there was nothing in it. I find there is no estoppel operating against defendants 1 and 2.

(3.) The other point has been argued at some length and it has been contended that because the purchaser under the deed of 1911 executed by defendant 4 took possession of the entire properties, that is to say, of all the shares, it must be deemed that his possession was adverse from the date of the sale even is the absence of any knowledge of the sale on the part of co- sharers other than the actual executant of the deed. There can be no doubt that in view of the Privy Council decision in Imambandi V/s. Mutstaddi 1918 P.C. 11 the sale by defendant 4, who was not the legal guardian of defendants I to 3 at the time, purporting to convey their shares also in the property, is void and cannot be binding on the minors; the sale can be valid only as regards defendant 4's own share in the property. The position therefore is that the purchaser came into possession as the rightful owner of a share in the property, and as regards the rest of the shares which belonged to defendants 1 to 3 he got no title. But it does not follow that his possession of these shares was adverse possession as that possession can be traced to his valid title as the transferee from one of the sharers, namely, defendant 4.