GANESA AIYAR Vs. AMIRTHASAMI ODAYAR

JUDGEMENT

(1.) The plaintiffs, who are the appellants, sued for a partition of the properties specified in the plaint between themselves and their father, who was the first defendant, after setting aside the alienations made by the first defendant to the other defendants, The alienations complained of were made under four sale deeds, Exhibits B, C, D and F. The Sub-ordinate Judge held that the alienation under Exhibit C was binding on the plaintiffs and dismissed the. suits as regards the items comprised therein. He found that the alienations under B, D and F were not binding, but passed a decree in favour only of the 2nd plaintiff for his share of the items holding that the 1st plaintiff s claim was barred by limitation. The plaintiffs appeal in so far as the decree is against them.

(2.) As regards the question of limitation, the case so far as the 1st defendant s alienation is concerned clearly falls under Article 126 of. the Limitation Act, which provides for a period of 12 years for suits by a Hindu governed by the law of the Mitakshara to set aside his father s alienation in ancestral property. The fact that the father executes the document as guardian of his son will not take the case out of Article 126 and bring it under Article 44, which applies to cases where property belonging to a minor is transferred by his guardian. In the case of joint family property the father is co-owner with the sons. He sells property as the managing member of the family and the mere fact that he describes himself as guardian of the sons would not take the case out of the express terms of Article 126. In Lachmi Narain Prasad v. Kishan Kishore Chand 33 Ind. Cas. 913 : 38 A. 126 : 14 A.L.J. 25 which was a case where property had been conveyed by the father and grandfather, the Article that was held applicable was Article 126 and the suit was dismissed on the ground that the alienation was more than 12 years before suit. In Ramkishore Kedarnath v. Jainarayan Ramrachpal 20 Ind. Cas. 958 : 40 C. 966 : 25 M.L.J. 512 : (1913) M.W.N. 661 : 15 Bom. L.R. 867 : 14 M.L.T. 163 : 17 C.W.N. 1189 : 18 C.L.J. 237 : 11 A.L.J. 865 : 10 N.L.R. 1 : 40 I.A. 213 (P.C.) their Lordships of the Privy Council treated a suit by the sons to set aside a partition by the father giving to a stranger properties as a suit governed by Article 126. I might also refer to Soundararajan v. Saravana Pillai 34 Ind. Cas. 794 : 30 M.L.J. 592 and Kishan Lal v. Shib Narain 3 Ind. Cas. 505 : 6 A.L.J. 614 and Asaram v. Ratansingh 32 Ind. Cas. 242 : 12 N.L.R. 12. The plaintiff is, therefore, entitled to a decree so far as his one-third share in the properties covered by Exhibits B and C is concerned.

(3.) As regards the alienation under Exhibit C, I am unable to agree with the Subordinate Judge. The 1st defendant and his father, who died before 1909, conveyed about 46 acres 45 cents of Nanja land and 3 acres 65 cents of Punja for Rs. 5,000. The recital as to consideration runs as follows: Owing to the distance between the said Palli Vialkam village and Mudikondan village where we live, the cultivation and other business have been interrupted and a great deal of loss has been occasioned. Intending, therefore, to discharge the present small debts of our family and to purchase lands in the village where we reside and to, better our prospects by carrying on money dealings you and we entered into an agreement on the 29th October last, and under this we receive Rs. 500 in cash, and the amount received by us this day from you is Rs. 1,500 and the amount with which we are debited under the agreement to receive in the presence of the Sub-Registrar of Nannilam from you is Rs. 3,000."