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Kuppuswami Mudali Vs. Thangavelu Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtChennai
Decided On
Reported inAIR1947Mad102; (1946)2MLJ214
AppellantKuppuswami Mudali
RespondentThangavelu Mudaliar and anr.
Cases ReferredRamayya v. Veerabadrachari
Excerpt:
- - the alienee would be entitled to enjoy the property at least till the death of kuppammal. in the plaint the first plaintiff is described as aged 20 and the second plaintiff as aged 15. if the first plaintiff was only 20 on the date of the suit, then clearly section 6 of the limitation act applies and the suit would be within time. that being so section 7 clearly applies......mudali who died in the year 1902 leaving a widow nagammal and two daughters alamelu ammal and kuppammal. nagammal died in 1924 and thereupon alamelu ammal and kuppammal inherited the property as the daughters of the last male holder. it is common case that some sort of division was effected between alamelu ammal and kuppammal and there is a question whether this division was only for convenient enjoyment or whether it was an absolute partition by which the right of the survivor to recover the property on the death of the predeceased sister was also given up. this question has not been gone into for two reasons: firstly that kuppammal is not a party to the alienation and secondly that the matter can be disposed of without going into this question, because assuming that the alienation.....
Judgment:

Somayya, J.

1. Plaintiffs-respondents filed the suit out of which this second appeal arises for a declaration that the alienation made by Alamelu Ammal is not binding upon them. The properties belonged to one Ayyaswami Mudali who died in the year 1902 leaving a widow Nagammal and two daughters Alamelu Ammal and Kuppammal. Nagammal died in 1924 and thereupon Alamelu Ammal and Kuppammal inherited the property as the daughters of the last male holder. It is common case that some sort of division was effected between Alamelu Ammal and Kuppammal and there is a question whether this division was only for convenient enjoyment or whether it was an absolute partition by which the right of the survivor to recover the property on the death of the predeceased sister was also given up. This question has not been gone into for two reasons: firstly that Kuppammal is not a party to the alienation and secondly that the matter can be disposed of without going into this question, because assuming that the alienation was supported by consideration, Alamelu Ammal one of the daughters cannot by herself alienate the property so as to be binding on the male reversioners after the death of Alamelu Ammal and Kuppammal. It is enough to refer to the decision of this Court in Yelumalai v. Natesachari (1944) 1 M.L.J. 201 : I.L.R. 1945 Mad. 35. which follows a decision of the Judicial Committee in Sri G. Radhamani v. Maharani Sri Pusapati Alakarajeswari : I.L.R. 16 Mad. 1. In this case Alamelu Ammal alone sold the property and therefore even if it was for a necessity which is disputed by the other side, the alienation will not bind the ultimate reversioners. On this short ground the plaintiffs-respondents are entitled to a declaration that the alienation by Alamelu Ammal under Ex. P-1 is not binding on them after the death of both Alamelu Ammal and Kuppammal. The question whether the sale would be binding on Kuppammal in case she happens to survive Alamelu Ammal need not be decided in this suit. If the division was an absolute one in the sense I have already indicated, then Kuppammal would have no right to recover the property from the appellant after the death of Alamelu. The alienee would be entitled to enjoy the property at least till the death of Kuppammal. But if the division was only for convenient enjoyment, then Kuppammal if she happens to survive Alamelu Ammal, can recover the property from the appellant if she filed a suit within 12 years from Alamelu Ammal's death. But whatever may be the right of the alienee as against Kuppammal, he has no right as against the male reversioners, i.e., the daughter's sons or any other persons who happen to be the actual reversioners after the death of the two daughters.

2. The next question argued by Mr. Viswana the Aiyar the learned advocate for the appellant is that the suit is barred by limitation. He rightly urges that the proper article of the Limitation Act applicable in this case is not Article 125 but Article 120. Article 125 does not apply because the plaintiffs would not be entitled to the property if Alamelu Ammal was dead on the date of the suit. Article 125 runs thus:

Suit during the life of a Hindu female by a Hindu... who, if the female died at the date of instituting the suit would be entitled to the possession of land, to have an alienation of such land made by the female declared to be void except for her life or until her re-marriage.

In this case if Alamelu died at the time of, the alienation and if the plaintiffs were entitled to possession of the land on that date, then Article 125 would apply to a suit for a declaration that the alienation by her is void except during her lifetime or until re-marriage. But in this case if Alamelu was dead on the date of the suit, the plaintiffs would not be entitled to possession, because there is Kuppammal. If the division between two sisters was an absolute division, then the appellant himself would be entitled to possession of the property during the lifetime of Kuppammal and the plaintiffs-respondents would not be entitled to possession on the date of the suit. If on the other hand, the partition was one for convenient enjoyment, even then the plaintiffs would not be entitled to possession, because Kuppammal as survivor would be entitled to be in possession of the property. Therefore, this contention of Mr. Viswanatha Aiyar is right. But the difficulty is that even accepting the argument of Mr. Viswanatha Aiyar, the proper article of the Limitation Act would be 120; that is

A suit for which no period of limitation is provided elsewhere in this schedule

and the plaintiff would have six years from the date when the right to sue accrued. Here the two plaintiffs are the sons of Kuppammal. In the plaint the first plaintiff is described as aged 20 and the second plaintiff as aged 15. If the first plaintiff was only 20 on the date of the suit, then clearly Section 6 of the Limitation Act applies and the suit would be within time. But the defendant has averred in the written statement that the first plaintiff was more than 22 years on the date of the suit and the question whether the first plaintiff was below 21 on the date of the suit has not been tried. But that apart, even if we assume that the first plaintiff was over 21, the question would still remain whether the suit would not be saved by Section 7 of the Limitation Act. In the present case, the two plaintiffs have a joint cause of action; in fact as Mr. Viswanatha Aiyar says if there is only one cause of action which accrues to all the reversioners and the suit whether filed by the first plaintiff or the second plaintiff is a representative suit the benefit of which will enure to all the reversioners alike. Therefore it is a joint right which accrued on the date of the alienation to both the first and second plaintiffs. The second plaintiff had been born by the date of the alienation and therefore he also got a right to question the alienation made by Alamelu Ammal. That being so Section 7 clearly applies. In that case unless the first plaintiff was capable of giving a valid discharge on behalf of his younger brother, time will not begin to run against either of the plaintiffs. If the true view is that it is not a joint cause of action but separate causes of action, each reversioner gets a separate right to question the widow's alienation. Then the consequence will be that the second plaintiff's right which on this hypothesis is a separate cause of action will not be barred even though the first plaintiff is barred and a declaration obtained by the second plaintiff will be on behalf of all the reversioners and will benefit the first plaintiff equally along with the other reversioners who are not joined in the suit.

3. It is then argued by Mr. Viswanatha Aiyar on the authority of the Full Bench decision in Varamma v. Gopaladasayya : (1918)35MLJ57 , that the second plaintiff had no independent cause of action and that if the first plaintiff's right is barred, the second plaintiff is also barred. In that decision the learned Judges had to deal with a case where the person who filed the suit was not born on the date of the alienation and the right of the existing reversioner to file a suit had become barred by lapse of time. The plaintiff who was born long after the alienation said that he had independent cause of action on his birth and that he being a minor, his rights are saved until he himself attains majority and more than three years elapsed after that. It is this contention that was negatived by the Full Bench decision in the above case. That is not an authority for the position that even if the two reversioners were born on the date of the alienation and one of them continues to be a minor on the date of the suit, he is nevertheless barred, because another reversioner who was also alive on the date of the alienation waited until his right became barred. As pointed out by me in Ramayya v. Veerabadrachari (1944) 2 M.L.J. 117, a right which two sons of a daughter acquire in the maternal grandfather's property is a joint right, because they take the property with mutual rights of survivorship; but it is not a coparcenary right in which case alone it could be said that the elder brother has the right of giving a valid discharge on behalf of his younger brother. In that case two daughters' sons inherited their maternal grandfather's property and the suit was filed more than three years after the elder attained majority. That I held would not bar the suit either as against the younger brother or against the elder brother. That is the effect of Section 7. If that would be so as regards a suit filed by the plaintiffs for possession after the death of Alamelu Ammal and Kuppammal, the answer must be the same where the suit is filed before the reversion opens and that for a declaration that the alienation made by their mothers is not valid and binding on them. In either case it is a joint right. One of them alone is not entitled to give a discharge without the concurrence of the other as it is not a coparcenary right and hence under Section 7 the entire suit is within time.

4. The second appeal fails and it is dismissed with costs. (No leave.).


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