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Tholeti Ramiah and anr. Vs. Konala Brahmiah and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1930)59MLJ196
AppellantTholeti Ramiah and anr.
RespondentKonala Brahmiah and ors.
Cases ReferredSundrammal v. Rangasami I.L.R.
Excerpt:
- - lakshmanna's contention, the heir of a minor dying an infant is in a better position than the minor himself. if time had commenced to run during the lifetime of the ward himself, article 141 is clearly inapplicable. on his death before attaining majority the mother entered into possession and enjoyed the properties till she died in 1890. the suit was filed by the reversionary heir in 1891. it was held that the claim was barred......male, he has, under article 144, twelve years from the minor's death within which he may bring the suit. the heir, unlike the ward, is not; bound to remove the instrument from his path and is, not trammelled by the three years rule. again, according to mr. lakshmanna's contention, when the heir of a ward dying an infant happens to be a female, the reversioner who succeeds her, has, from her death, twelve years within which he can sue for possession. can this contention be accepted? the minor on attaining full age cannot dislodge the alienee from the property without first clearing out of his way the deed of transfer executed by his guardian. (doraisami v. thangavelu : air1929mad668 ) this rule applies also to the heir of the ward who dies after attaining his majority. it equally applies.....
Judgment:

Venkatasubba Rao, J.

1. Mr. Lakshmanna has argued this case at great length, but I am afraid I cannot uphold his contention. The facts may be briefly stated. The property belonged to Ramiah, who was the last full owner. During his minority, his mother, acting as his guardian, sold the property in 1873 to a person through whom the defendants claim. Ramiah died whilst still an infant in 1879 or 1880. After his death, his mother, as his heir, took possession of his other property and died in 1921. This suit was brought in 1922 by a reversionary heir for recovery of the suit item. Both the Lower Courts have held that the suit is barred by limitation. Mr. Lakshmanna contends that this decision is wrong,

2. Article 44 of the Limitation Act runs thus:

Description of Suit Period of Time from which period

Limitation. begins to run.

By a ward who has

attained majority, to Three years. When the ward attains

set aside a transfer majority.

of property by his

guardian.

3. Mr. Lakshmanna's argument is, that as the ward died before he came of age, this article does not apply. He puts his case thus. The minor's right to recover the property would, but for this article, not be barred till the expiry of twelve years from his attaining his majority. The case would fall under Article 144. The transaction being voidable and not void, the possession of the alienee does not become adverse till the ward by coming of age becomes competent either to ratify or repudiate. (See Shankerbhai v. Ratingji : AIR1917Bom235 and Chuncher v. Martin (1889) 42 Ch. D. 312. ) The effect of Article 44 is, that the ward on attaining majority must elect within three years either to be bound or not to be bound by the transaction. The period of limitation is thus curtailed in his case. But as Article 44 applies in terms only to a ward who comes of age, his heir is not similarly restricted and can sue for possession without getting rid of the transaction. I think I have correctly set forth the somewhat ingenious contention of Mr. Lakshmanna, It amounts to this: that if the heir of the minor dying before attaining his majority happens to be a male, he has, under Article 144, twelve years from the minor's death within which he may bring the suit. The heir, unlike the ward, is not; bound to remove the instrument from his path and is, not trammelled by the three years rule. Again, according to Mr. Lakshmanna's contention, when the heir of a ward dying an infant happens to be a female, the reversioner who succeeds her, has, from her death, twelve years within which he can sue for possession. Can this contention be accepted? The minor on attaining full age cannot dislodge the alienee from the property without first clearing out of his way the deed of transfer executed by his guardian. (Doraisami v. Thangavelu : AIR1929Mad668 ) This rule applies also to the heir of the ward who dies after attaining his majority. It equally applies to an assignee who takes a transfer from such a ward. (Raja Ramaswami v. Govindammal (1928) 56 M..I.J. 332.) Is there then any reason why an exception should be made in the case of the representative of a ward who dies while still an infant? According to Mr. Lakshmanna's contention, the heir of a minor dying an infant is in a better position than the minor himself. The present case shows to what startling result this position may lead. Though the suit would have long ago been barred had the minor attained full age and died, the law must treat the claim as being alive, for the benefit of his successor, after the lapse of 50 years. There is nothing, in my opinion, in the Limitation Act which compels me to uphold such a contention.

4. The question is, when does the cause of action arise to set aside the transfer? Does it arise on the date of the alienation or when the ward comes of age? Article 44 no doubt fixes the starting point as the attaining by the infant of his, majority. In my opinion, that article does no more than express the result of applying to the particular kind of case it contemplates the general principles embodied in Sections 6 and 8 of the Limitation Act. The statute begins to run from the date of the alienation, but Section 6 makes minority a cause for suspending the operation of the statute. Now, let us suppose that Article 44 ran thus:

Description of Suit. Period of Time from which period

Limitation. begins to run.

By a ward who has attained Three years. From the date of the

majority, to set aside a trans- transfer.

fer of property by his guardian.

5. Let us apply to it the rules, contained in Sections 6 and 8. Section 6 says, 'where a person is at the time from which the period of limitation is to be reckoned a minor, he may institute the suit within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule'. Section 8 enacts that 'nothing in Section 6 shall be deemed to extend for more than three years from the cessation of the disability, the period within which any suit must be instituted.' The provision as given above in its altered shape, read in the light of these two sections,, yields the rule in the exact form embodied in Article 44 as it stands. The reason for drafting this article in this manner is obvious. The other articles of the Limitation Act may apply to minors or to adults, but by its very nature the transaction referred to in Article 44 concerns minors, only. It was, therefore, unnecessary to frame a rule in general terms, leaving it to be governed by the principles contained in Sections 6 and 8. Article 44 seems to be the result of an attempt to state the law compendiously in a self-contained provision. This is the view 1 am disposed to take and it receives support from the observations of Mr. justice Sadasiva Aiyar in Doraisami v. Nondisami I.L.R. (1912) M. 118 : 25 M.L.J. 405 a case decided by a Bench of three Judges. The learned Judge, after remarking, that even before the ward attains his majority, a suit can be brought on his behalf by a next friend to set aside the transaction and that the ward is bound by the result of such a suit, if honestly brought and conducted, goes on to observe,

This seems to indicate that the cause of action to set aside the alienation arises at once.

The learned Judge thus continues:

It seems difficult to hold that there are two separate causes of action given to the ward to set aside an alienation of the ward's property by the guardian--

(a) One cause of action which arises at once to be enforced by a suit brought by anybody acting as his next friend during the whole course of his minority, and

(b) another distinct cause of action which arises as soon as he attain^ majority (and only on the date of his so attaining majority and not before) to be enforced by a suit brought by himself as a major.

If there is only one cause of action which arises on the date of alienation, it seems to follow (as Abdur Rahim, J., has remarked) that Article 44 is only an illustration of the principle embodied in Section 7(corresponding to Section 6 of the present Act).

6. If this be the correct view to take of Article 44 (I entertain no doubt on the point) Section 6, Clause (3) comes into play. It runs thus:

Where the disability continues up to the death of such person, his legal representative may institute the suit within the same period after the death as would otherwise have been allowed from the time so prescribed.

7. The limitation is, therefore, to be reckoned from the death of the ward. In that case, the fact that on his death the estate is taken by a female heir, makes no difference. As observed in Seetaratnaraju v. Subbaraju I.L.R. (1921) M. 361 : 42 M.L.J. 262 under the provisions of the Limitation Act, minority does not by itself prevent limitation from running against the minor although, by reason of the disability, ,an extended period is given. When the statute once begins to run, no subsequent event, not specially provided for, impedes its operation (section 9). The suit, therefore, became barred on the lapse of three years after the death of the ward, notwithstanding the fact that he was succeeded by a female heir.

8. In this view, the question regarding the scope of Article 141 does not arise. If time had commenced to run during the lifetime of the ward himself, Article 141 is clearly inapplicable. I do not, therefore, propose to consider any cases bearing on that provision.

9. Mr. Lakshmanna has not been able to cite any authority for his contention. It is opposed to Sundrammal v. Rangasami I.L.R. (1894) M. 193 : 4 M.L.J. 275 the facts of which are on all fours with those of the present case. The alienation in that case was made in 1861 by the adoptive mother acting as the guardian of her infant son. On his death before attaining majority the mother entered into possession and enjoyed the properties till she died in 1890. The suit was filed by the reversionary heir in 1891. It was held that the claim was barred. The following passage contains the reason:

He finds as a fact that the alienation was made by Muttammal and her minor son and that what was conveyed was an absolute estate,, As the last male owner was alive the alienation was not that of a widow's estate by a widow but that of an absolute estate by the guardian of the last male owner. It was open to any next friend of his to have stepped forward during his minority and sit aside the alienation on the ground that it was an act done without adequate necessity or in excess of the limited authority of a guardian. As the alienation took place in 1861 whilst the present suit was brought in 1891, a suit to set it aside would be barred, if the minor were still alive and his reversioners cannot take a higher position. The plaintiff's claim must, therefore, be held to be time-barred.

10. Mr. Lakshmanna says that the judgment is very brief and that the decision is wrong. The decision is,, in my opinion, correct though the learned Judges, did not discuss the point at any length.

11. The second appeal fails and is dismissed with costs.


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