1. This appeal is by defendants 1, 3 and 11 against the judgment and decree in A. S. No. 256/69 on the file of the District Judge, Visakapatnam, reversing the judgment and decree in O. S. No. 52/66 on the file of the District Munsif, Narasipatnam.
2. The plaintiff laid the suit for declaration of his title to, and recovery of the plaint schedule properties on the averment that the Ist defendant, the admitted owner of the properties, executed a gift deed . Ex. A-1 dated 19-1-1945 in favour of one Dasina Maridayya having died his heirs and legal representatives sold the same under the registered sale deed. Ex. A-23 dated 24-6-1965 in favour of the plaintiff for a consideration of Rs. 5,000 /-. The sale deed was ratified under a document Ex. A-25 dt. 19-1-1968. As the defendants interfered with his possession, the plaintiff has filed the present suit.
3. It was the case of the Ist defendant that the gift deed was nominal and was not acted upon, and that even after the execution of the gift deed, she continued to be in possession of the plaint schedule properties and that she also acquired title by adverse possession.
4. While the trial Court dismissed the plaintiff's suit, on appeal, the learned District Judge, has decreed the same.
5. It may be noticed that even the trial Court which dismissed the suit, found that the execution of the gift deed was true. In the lower appellate Court that finding was not challenged. The lower appellate Court on a review of the evidence further found that the gift deed was in fact acted upon, that Dasina Maridayya was put in possession of the properties and that the Ist defendant's claim that she continued in possession thereof was false. Consequently, the question of the Ist defendant acquiring title by adverse possession, and the plaintiffs suit for recovery of possession being barred by limitation did not arise. These findings are fully supported by the evidence on record. That possession was delivered in pursuance of the gift deed is supported by voluminous documentary evidence consisting of Exs. A-4 to A-16 and X-1 and X-2 as also the oral evidence. The cist receipts filed on behalf of the first defendant Exts. B-3 to B-5, do not mention the survey numbers of the lands to which the receipts relate. There is nothing in the evidence of P. Ws. 6 and 7 to connect these receipts with the suit land. The village munsiff or the karanam has not been examined to prove that these receipts pertain to the plaint schedule lands.
6. The case of the 1st defendant that the lands in question were leased out by her to Papisetti Nagaraju, Mamidi Tatalu and Palaka Appanna, is not proved by producing the 'kadapas', or examining the lessees. D. W. 5 who was examined to proved that he purchased the mango fruit and cashewnut from the plaint schedule land during the years 1964 and 2965 was not mentioned in the written statement and no documentary evidence has been filed to prove that he in fact, purchased the fruit of the plaint schedule land from the 1st defendant. The finding of the lower appellate Court that the donee entered into possession of the land in pursuance of the gift deed, and that the gift deed was not nominal and consequently under that document valid title and possession was transferred in favour of the plaintiff, does not call for interference in this second appeal.
7. The contention that the sale deed is not supported by consideration and, therefore, the plaintiff is not entitled to sue, is not available to the defendants who are not the executants of the sale deed and who do not derive title from the plaintiff's vendor.
8. The learned counsel for the appellants contends that Ex. A-23 was not executed either by Simhachalem or her son Konda who was then a minor and that it was only executed by Nookaraju, widow of Rajulu who had a half share in the properties on behalf of Simhachalam and her minor son Konda. It was, however, argued that Simhachalam's father Thagarampudi Maridayya executed a sale-deed. Ex. A-23, as a de facto guardian of the minor, Konda, that that sale-deed does not convey valid title to the admitted half share of the properties belonging to Simhachalam and Konda and therefore the plaintiff-respondent is not entitled to file the present suit for possession.
9. It is not in dispute that Nookaraju was entitled to a half share and that in the remaining half Simhachalam was entitled to 1/4th and her minor son to the remaining 1/4th. In view of Section 11 of the Hindu Minority and Guardianship Act XXXII of 1956 after the commencement of the Act, no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being a de facto guardian of a minor. In view lf Section 6 of the Act, the maternal grandfather cannot be a natural guardian especially while the mother is living. In the instant case, as Thagarampudi Maridayya, the maternal grandfather of the minor son Konda was not competent to alienate the properties of Konda under Ex. A-23 even if he was acting as a de facto guardian, the sale to that extent is not valid. Therefore, the interests of minor Konda never stood transferred in favour of the plaintiff-respondent,
10. It is, however, argued by Mr. Ayyappa Sastry, learned Counsel for the respondent that under Ex. A-25 which is executed by Simhachalam both on her behalf and on behalf of her minor son Konda, she confirmed the sale effected under Ex. A-23 and has categorically stated that she had authorised the sale and that she ceased to have any right, title or interest in the property ever since that sale. Under Ex. A25 she has acknowledged having received the entire sale consideration. Hence, according to him that Ex. A-23 conveys not only the title in respect of half share of Nookaraju but also the half share belonging to Simhachalam and Konda. A reading of Ex. A-25 would clearly disclose that it does not effect a transfer by itself; it is only a confirmation or ratification of the sale effected under Ex. A-23. If, in view of Sec. 11 of the Hindu Minority and Guardianship Act, Thagarampudi Maridayya could not have effected a sale of the minor's property, and the sale made by him is void, there could not be a ratification of such a sale under Ex. A-25 even by the natural guardian. The same view was taken in Rajalakshmi v. Ramachandran : AIR1967Mad113 and D. Gurumurthy v. Raghu Podhan, : AIR1967Ori68 . Even with regard to the share of Simhachalam, it is seen that there is no express authorisation in writing to execute a sale deed on behalf of Simhachalam and present the same for registration. Having regard to Sections 32 and 33 of the Indian Registration Act, no person who is not expressly authorised in writing to sell the immoveable property can validly execute a document and present the same for registration so as to bind the true owner. There is no evidence of such express authorisation in writing. Therefore the share of Simhachalam also could not have been alienated under Ex. A-23. A sale which is not valid in law, cannot become valid by subsequent ratification. What is irregular may be ratified but not what is void and illegal. Hence neither under Ex. A-2 nor under Ex. A-23 read with Ex. A-25 any title passed to the plaintiff-respondent in respect of the half share of the properties belonging to Simhachalam and her minor son, Konda. Only the half share of Nookaraju passed on to the purchaser under Ex. A-23. Thus, I find that the plaintiff had acquired valid title only to an undivided half share in the entire plaint schedule property.
It is argued by Raghava Rao, learned counsel for the appellant, that since the plaintiff had no right to the other half share belonging to Simhachalam and Konda, he is not entitled to maintain a suit for recovery of possession. The suit was initially filed for declaration of title and injunction and as the plaintiff was dispossessed by the defendant subsequent to the institution of the suit, it was converted with the leave of the Court into a suit for recovery of possession by way of amendment. So long as the plaintiff is entitled to a half share in the entire plaint schedule property, he is entitled to maintain a suit for recovery of possession in respect of the entire land as against the trespasser. Having regard to the finding arrived at by the lower appellate Court, with which I agree, none of the defendants have right to remain in possession of the property ; they were in fact not in the possession until they illegally dispossessed the plaintiff. This previous possession of the plaintiff is sufficient to entitle him to maintain the suit for recovery of possession against the defendants who have no right to remain in possession thereof,. It was, however, argued that the plaintiff having purchased an undivided half share, his remedy is only to file a suit for partition and separate possession. Reliance for this proposition was placed on a decision of the Madras High Court in Peramanayakam v. Sivaraman, : AIR1952Mad419 . That was a case of an alienation from one of the coparceners and it was held that such an alienee cannot be treated as a co-owner. But in the instant case, on the death of Simhachelam's husband, the property devolved on Rajulu. Simhachelam and his minor son, Konda in definite shares, Rajulu being entitled to a half share and Simhachelam and her son being entitled to the other half. There was no coparcenery existing on the death of Simhachelam's husband and the share of Rajulu was not liable to increase or decrease. The heirs of Rajulu were not coparceners but only co-owners of their respective shares. Reliance was placed by appellant's counsel on a decision of a Full Bench of Madras High Court in : AIR1952Mad419 which lays down that :
'A coparcener of a joint Hindu family governed by Mitakshara obtaining in the State of Madras is entitled to alienate his undivided share either in the whole of the property or in a certain specific item. In all such cases the only right which the alienee acquires is to stand in the shoes of his vendor and to work out his rights by a suit for partition and in such a suit, if without prejudice to the rights of the other members of the family, it is possible to have the share alienated allotted to the alienor, it may be allotted to the alienee in the right of the alienor. The alienee has to bear the proportionate share of the common burden of the family proportionate to the value of the share alienated to him.'
That decision will not apply to the facts of the present case. Even in the first instance there was no partition among the coparcerners, Nookaraju, Rajulu, Simhachelam and Konda. The alienee under Ex. A-23, which alienation was valid as already held above to the extent of Nookaraju's share, could have maintained the suit for recovery of possession of the entire property as against a trespasser. The mere fact that the alienation is not valid to the extent of half share does not take away this right of the purchaser. He can very well maintain the suit for recovery of possession of the entire property as against every person other than the true owner. That apart the suit is also maintainable having regard to his prior possession over the entire property.
11. For these reasons, I reject the contention of the learned counsel for the appellants that the plaintiff has to file a suit for partition and separate possession of Nookaraju's share alienated to him under Ex. A-23. In this view of the matter, this second appeal fails and is accordingly dismissed with costs. No leave.
12. Appeal dismissed.