1. This second appeal is preferred against the decree and judgment of the learned District Judge of South Arcot in A.S. No. 219 of 1954, reversing the decree and judgment of the learned District Munsif of Cuddalore in O S No 407 of 1951.
2. The dispute in this case relates to one acre of land purchased by the plaintiff under the sale-deed Exhibit A-1 , dated 8th August, 1938.Pinun.
3. The facts are: The suit property orginally belonged to the third defendant Ramaswami Padayachi. On 27th August, 1929, under Exhibit B-1 Ramas Padayachi executed a settlement-deed in favour of his wife Rajammal T.W settlement deed recites that on account of love and affection the husband was set tling this property on the wife for life and that the sons born to her by the settlor would thereafter take the property absolutely. Though it was disputed in the Tower Courts, it has now been established beyond doubt that Ramaswami Padavachi? two sons viz., the second defendant Sarangapani Padayachi and another son bv name Villumani Padayachi who has subsequently died, were born after the exe cution of the settlement-deed. That Ramaswami Padayachi when he executed' the settlement-deed had no issue has been concurrently found by both the Coum below and it is it disputed before me. It is clearly recited in the settlement-deed that possession had been delivered contemporaneously with the execution of the document to Rajammal.
4. There is no dispute that the subsequently born Villumani Padayachi and the second defendant and the third defendant have been living amicably along with Rajammal who died in 1944 as members of a joint family.
5. In these circumstances on 8th August, 1938 under Exhibit A-1 the third defendant on behalf of himself and as guardian of his then minor sons the second defendant and Villumani Padayachi sold the suit property to the plaintiff for Rs. 160. Out of this consideration Rs. 50 went towards the discharge of a mortgage on the suit property in favour of one Alamelu by the third defendant. The balance of Rs. no was paid before the Sub-Registrar and there is an endorsement of the Sub-Registrar, on the document to that effect. It has been found that the property has not been sold for an inadequate price. In fact this property even when land values had shot up to great heights is purported to have been sold by the second defendant to the first defendant for Rs. 800 under the sale-deed Exhibit B-2, dated nth September, 1951. In fact no endeavour was made before me to show that this property was sold for an inadequate price in 1938. It may be taken therefore as established that it was sold for an adequate price. In addition to the suit property there seem to have been other properties of Ramaswami Padayachi on the date of sale under Exhibit A-1 in 1938 and the father, mother and sons were all living together and the father was maintaining them. There is no evidence, however, that the income from the other properties of Ramaswami Padayachi would have sufficed for the maintenance of the family of Ramaswami Padayachi.
6. Subsequent to the sale in favour of the plaintiff the patta has been transferred in plaintiff's name. Plaintiff has been paying the kist to the Government. It is undisputed that he has been enjoying this property under the sale of 1938.
7. Nothing further happened till 1951. Then the second defendant purports to have sold the suit property to the first defendant for Rs. 800 as already mentioned and thereafter this suit has been filed by the plaintiff for a permanent injunction.
8. The learned District Munsif came to the conclusion that the second defendant was born only after and not before the date of the settlement-deed, that the sale of the suit property by the third defendant to the plaintiff is true, valid and supported by consideration, that the third defendant had no subsisting title in the suit property on the date of sale, that the third defendant as the guardian of his minor sons on the date of sale was not competent to execute the sale-deed to the plaintiff, that the plaintiff is estopped from attacking the sale-deed in favour of the first defendant, that the plaintiff got into possession after the sale to him in 1938 and that even if he did take possession it would not be adverse to that of the second defendant and his vendees because 12 years had not passed since the date of death of Rajammal. Then he finally found that the plaintiff was out of possession at the time when he filed the suit and therefore he could not maintain the suit for a mere injunction. Therefore, he dismissed the suit.
9. In appeal the learned District Judge differed from the learned District Munsif and held that the plaintiff was entitled to the relief asked for and therefore decreed the suit. Hence this second appeal by the defeated first defendant.
10. In this second appeal I am of the same opinion as the learned District Judge that the plaintiff is entitled to the relief asked for by him. Here are my reasons.
11. In regard to the sale-deed Exhibit A-1 in favour of the plaintiff, there can be no doubt that on the date of sale Ramaswami Padayachi had no ownership in the suit property. The sale-deed recites as if it were an out and out sale by Ramaswami Padayachi of joint family property on behalf of himself and his sons. But having parted with this property in 1929 and having delivered possession to his wife Rajammal, he could not do so; on that date Rajammal was the limited owner of the property. In regard to the minor sons, they had a vested remainder therein. Therefore, the sale-deed will not prevail as a sale of joint family property. In regard to the wife, I have already stated that she died in 1944. The son Villumani has also died. His interest in the property will not devolve by survivorship on his brother the second defendant. See Pankajammal v. Parthasarathi : AIR1946Mad99 and Arunachala Mudaliar v. Muruganathan : 1SCR243 . It is now well-settled that the property gifted by a father to a son would be his separate property as between that son and his brothers. The share of Villumani Padayachi after his death would not devolve on the second defendant by survivorship but would go to his father by inheritance and therefore when Villumani's right had devolved upon his father it would be a case of ' feeding the estoppel by the interest ' and to the extent of Villumani's share the alienation by the third defendant in favour of the plaintiff would be good and will prevail against the subsequent sale by the second defendant in favour of the first defendant. In this case, however, inasmuch as the entire claim of the first defendant would fail by reason of limitation, this point is of no importance.
12. In regard to the share of the second defendant which is one-half in the property, the alienation by the father the third defendant, in 1938, in favour of the plaintiff can be supported in two ways. First of all, the father, the third defendant, could execute the sale deed as the legal guardian of his minor son. It is well settled Hindu Law that the father and in his absence the mother but no others are the natural guardians of a minor. Chinnappa v. Onkarappa I.L.R. (1940) Mad. 358 Emperor v. Prankrishna I.L.R.(1882) Cal. 969, Kaulesra v. Jorai Kasaundhan I.L.R.(1905) All. 233, Rangubai v. Gopal Dhondu (1903) 5 Bom. L.R. 542 In re Gulbai I.L.R.(1908) 32 Bom. 50 and Behari Mondal v. Bankh Behari : AIR1943Cal203 . See the Guardians and Wards Act, Section 19(b). The mother comes in only in the absence of the father and except those two no other persons can be said to be the natural guardian of a Hindu minor. The suit property had been sold for an adequate price and for discharge of an antecedent debt, viz., a Bhogyam on this very property and for Rs. no taken before the Sub-Registrar. That consideration passed has not been denied. In fact defendants 2 and 3 did not get into the witness-box and they remained ex parte. P.Ws. 1 and 2 spoke to the passing of consideration and there has been no cross-examination of P.W. 2-at all. I have already mentioned that the sons and the mother were being maintained by the father Ramaswami Padayachi and it is nobody's case that the father had such other means that he need not have alienated this property at all for the upkeep of the beneficiaries. Prima facie there is nothing in that transaction to show that it is either collusive or fraudulent or tainted with immorality or illegality or as not being for the benefit of the minors or for necessity.
13. This case, however, need not be rested on that narrow ground because it is now well settled law that where the alienation is as under Exhibit A-1 of the minor's-property by the minor's legal guardian and where the minor is eo nomine party to the document and where the alienation is for an alleged purpose or necessity binding on the minor the alienation is only a voidable one and not a void one and such an alienation must be formally set aside and cannot be ignored by the minor and he cannot purport to alienate the property after attaining majority ignoring the alienation made by his legal guardian during his minority. It would be useful for us to refer to the following cases on the subject : Palaniappa Goundar v. Nallappa Goundan : AIR1952Mad175 , Satgur Prasad v. Har JVaraian Das (1932) 62 M.L.J. 451, Raja Ramaswami v. Govindammal (1928) 56 M.L.J. 332, Kqya Ankamma v. Kameswaramma (1934) 68 M.L.J. 87, and Sankaranarqyana Pillal v. Kandasami Pillai : AIR1956Mad670 .
14. There is no dispute that in this case when the second defendant alienated the property in 1951, it was long past three years after he attained majority and therefore he could not validly question the alienation by his father under Exhibit A-1 and the voidable transaction not having been repudiated, he had no subsisting title in the suit property to convery to the first defendant under the sale-deed Exhibit B-2.
15. That plaintiff was in possession on the date of suit has been fully established. It is clear from the evidence that from the date of purchase in 1938 the plaintiff has been in possession of the property. The plaintiff filed the suit in 1951 when' his possession was threatened by first defendant under cover of Exhibit B-2, dated nth September, 1951. The plaintiff and the witnesses readily admitted that it was true that after plaintiff filed the su it, the first defendant came to the land and tried to plough it. But after the injunction order passed on the I.A. the first defendant left away from the land and plaintiff re-entered on the land and has continued in possession. The learned District Munsif therefore went wrong in thinking as pointed out by the District Judge that the plaintiff was not in possession of the land on the date of suit and therefore the suit for injunction is not maintainable.
16. The conclusions of the learned District Judge are unassailable and his decree and judgment are confirmed and this second appeal is dismissed and in the circumstances of this case without costs.