1. Two questions of law have been canvassed before this court, viz., (1) that the plaintiff's suit is barred by Article 44 of the Limitation Act and (2) that on a proper appreciation of the evidence on record, the courts below should have come to the conclusion that Exhibits XIII to XVI were executed by Laksbmidevamma as the guardian of the minor plaintiff.
2. To properly appreciate the contentions advanced, a few facts need to be stated. The plaintiff filed the present suit, which has given rise to this appeal, for a declaration that the alienations under Exhibits XIII to XVI effected by his mother Lakshmidevamma are not binding on him as the same were not effected by her as his guardian. In the plaint it is specifically stated that the plaintiff does not seek to set aside the deeds in question as he was not a party either directly or constructively to those documents. In substance the suit is one for possession on the basis of title.
3. On the basis of the averments found in the plaint there is no room for the application of Article 44 of the Limitation Act. The said Article applies to a suit instituted by a ward on attaining majority to set aside a transfer made by his guardian. As mentioned earlier, tho plaintiff very specifically says that he does not and need not seek to set aside the sale deeds in question. He proceeds on the basis that the alienations in question are extent and the defendants alienates are mere trespassers on the properties.
Either he succeeds in making good the allegations made in the plaint or he does not. If he succeeds in establishing the facts mentioned by him in his plaint, then there is no room for the application of Article 44 of the Limitation Act. If he fails to establish these facts then there is no need to consider the applicability of Article 44, as the suit will have to fail for failure to claim necessary reliefs. In other words the frame of the suit will be bad. Hence it is unnecessary to consider the scope of Article 44.
4. The only important question that falls for decision in this appeal is whether on a proper appreciation of the evidence on record it could be reasonably concluded that Lakshmidevamma effected the alienations under Exhibits XIII to XVI as the guardian of the plaintiff. It is urged on behalf of the respondents that the deeds in question do mot either directly or by implication show that Lakshmidevamma executed those deeds as the guardian of the plaintiff. The Courts below have upheld this contention and have come to the conclusion that there is no material on record from which it could be inferred that Lakshmidevamma was purporting to act as the guardian of the plaintiff while executing the deeds in question.
Sri Sadasivan, the learned counsel for the appellants has strenuously contended that it is not necessary that these deeds should have mentioned in explicit terms that executant was the guardian of the true owner of the property sold. According to him the court has to draw an inference that the alienations in dispute were effected by the guardian it it is established that the property belonged to the plaintiff, the executant was his natural guardian and the properties in question were sold to discharge debts binding on the estate of the plaintiff.
He contends that in the present case admittedly the properties sold belonged to the plaintiff who was a minor on the date of the alienations in question. The alienations were effected by his natural guardian. (His father died long prior to that date and the alienations.) The alienations were effected for discharging debts binding on the estate of the minor. Hence according to him the circumstance that the deeds did not mention the fact that Lakshmidevamma was executing those deeds as guardian of the plaintiff is a wholly immaterial circumstance.
In support of his contention he has invited my attention to the decision in Boria v. Hirege Gowda, 19 Mys CCR 255, wherein it was held that an alienation of the property of a minor made by a person who could not legally have made it except in his capacity as guardian of a minor, on behalf of and for the benefit of the minor, is binding on the minor though the document does not expressly purport to deal with the minor's estate. In the course of the judgment the court observed :
'It is clear that the parties to the document knew that they were dealing with the minors' property and that third defendant had a light to deal with the property, as minors' property and no right to deal with it otherwise; for it is not alleged that she at any time claimed it adversely to plaintiffs.'
From the observations found in the judgment it is clear that though the deed of alienation did not mention the fact that the person executing the deed was the guardian of the minor-owner there was other evidence to prove to that fact. The nest case to which reference was made by Sri Sadasivan is the decision in Murari v. Tayana reported in ILR 20 Bom 286. Sargent, C. J. speaking for the Bench observed that under Hindu Law the mother as guardian of her minor son had authority to sell the land in order to pay off her husband's debts, and the omission of any reference to the minor in the deed of sale does not render it ineffectual if it is proved that it was her intention to deal with the son's interest, and not merely with any interest which she might have herself. In this case also the court relying on the circumstances available to the case came to the conclusion that in fact the alienation in question was effected by the guardian of the owner of the property alienated.
5. From the authorities placed before me the law on the point may be summarised thus :
'Whenever an alienation is questioned by a minor or a quondam minor on the ground that the said alienation was not effected by his guardian qua guardian, then it is for the alienee to prove that the alienation in question was effected by the guardian of the minor as guardian. This proof can be rendered by one of the following ways viz, (1) by reference to the recitals found in the deed of alienation; (2) by other evidence adduced or (3) from the surrounding circumstances of the case.'
Let us apply these tests to the facts of the present case and see whether it can be reasonably field from the facts and circumstances proved in this case that the alienations impeached were effected by Lakshmidevamma as the guardian of the plaintiff and whether the alienees purchased the same from her as representing the plaintiff.
6. Now so far as the recitals in the deeds Exhibits XIII to XVI are concerned there are no indications in those deeds to show that Lakshmi-devamma effected those alienations as the guardian of the minor plaintiff. Let mo quote the relevant portion of one of those deeds i.e. Exhibit XIV. The other deeds are more or less similarly worded. It reads as follows :
'For discharging the debt of Rs. 400/- due to C. Subbiah, residing in Bangalore City, who has taken assignment on 19-10-1941 of the hypothecation debt contracted by my late husband N. Subba Rao under the registered document dated 31-8-1933 with Venkataramiah and Parvatnamma of Varthur Kasaba village, I have hereby sold to you for a sum, of Rs. 100/- the undermentioned schedule land the khata of which stands in the name of my husband N. Subba Rao and which is not in my possession and enjoyment and situate in the said kasaba Virthur, village .....'
In the preamble to that deed the vendor's name is mentioned as Lakshmidevamma wife of late N. Subba Rao. From this it is clear that the deeds in question are of no assistance to the alienees to establish that Lakshmidevamma effected the alienations in question as the guardian of the plaintiff.
7. The learned counsel for the appellants has not invited my attention to any other documentary or oral evidence to show that Lakshmidevamma effected the alienations in question as the guardian of the plaintiff and that the alienees purchased the suit properties from her in her capacity as the guardian of the plaintiff.
8. The only remaining question to be considered is whether from the circumstances available in the case can it be reasonably inferred that Lakshmidevamma effected those alienations as the guardian of the plaintiff and that the alienees purchased the properties alienated from her as the guardian of the plaintiff. The appellant relies on the following circumstances, viz. (1) In fact Lakshmidevamma was the natural guardian of the minor; (2) the estate belonged to the minor; (3) Lakshmidevamma was managing the estate of the plaintiff as his guardian; (4) the alienations were effected to discharge the debts binding on the plaintiff and (5) at no time Lakshmidevamma claimed any interest in the property adverse to the interests of the minor.
9. Before dealing with the intention of Lakshmidevamma in executing the alienations in question, it is necessary to deal with the intention with which the alienees purchased the properties in question. Did they purport to purchase those properties from Lakshmidevamma as the guardian of the plaintiff? In the suit the main defence taken by the alienees is that the suit properties do not belong to the plaintiff nor had his father any interest in the same. According to them the properties belonged to the father of Lakshmidevamma and the sale deed was benami taken in the name of N Subba Rao the father of plaintiff.
In the face of this plea it is difficult to accept the please of the appellants that they purchased the suit properties from Lakshmidevamma as the guardian of the plaintiff. If the plea of the appellants is true, or at any rate if they believed in that plea then they could not have purchased the suit properties from Lakshmidevamma as guardian of the plaintiff. This knocks down the bottom of the appellants' case that they purchased the property from Lakshmidevamma as the guardian of the minor.
Now, turning our attention to the other aspect of the case whether Lakshmidevamma could be deemed to have effected the alienations in question only as the guardian of her minor son, it must be borne in mind that Lakshmidevamma herself had an interest in the suit property. According to Section 8 (1) (d) of the Mysore Hindu Women's Rights Act, 1933, Lakshmidevamma was entitled to share in the family properties. It was held by the old Mysore High Court that the rights obtained under Section 8 (1) (d) are vested and alienable rights. (Vide Chikkakempe Gowda v. Madaiya reported in 29 Mys LJ 64), though a different view of the law has been taken by the present High Court (sea Narayana Singh v. Ramakumar, reported in (1960) 38 Mys LJ 235).
Hence it cannot be said that Lakshmidevamma could have executed the sale deeds only as the guardian of the plaintiff. There is no evidence to show that she was managing the properties on behalf of her son the plaintiff. The essential question is not, in what capacity Lakshmidevamma sold the property or to be more correct in what capacity she purported to sell the same but what did the purchaser purchase or intended to purchase. Did he intend to purchase the right of the plaintiff? In the circumstances of the case it cannot be safely said that he intended to do so.
The contention that the properties in question have been alienated to discharge the debts binding on the estate of the minor has not been upheld by the first appellate Court. According to the finding of the first appellate court it is not proved that any portion of the consideration received under Exhibits XIII to XVI were utilised for the purpose of discharging any of the debts due from N. Subba Rao, the father of the minor. It was also not satisfied that any debts were due from the estate of Subba Rao on the date of the alienations in question.
9. Viewed from any angle it is difficult to uphold the contention of the appellants that the alienations under Exhibits XIII to XVI are valid and binding on the plaintiff.
10. Sri Sadasivan lastly urged that as the first appellate court erroneously did not consider the appellants' application for receiving additional evidence the appeal must be remanded for considering that application. According to him his clients had filed some documents in the first appellate court and wanted the court to receive the same its additional evidence but the first appellate court has failed to pass any order on that application. The ground was not taken up in the memorandum of appeal.
It was only urged for the first time at the time of hearing of this appeal. Moreover, it is not shown how the appellants were entitled to ask the appellate court to receive additional evidence. It is not their case that the documents in question were produced in the trial court and the trial court erroneously refused to receive the same. No case for receiving additional evidence is made out. Hence there is no substance in the grievance of Sri Sadasivan.
11. In the result the appeal fails and the same is dismissed with costs.
12. Appeal dismissed.