1. This revision arises out of an order passed by the District Munsif, Tirukoilur in O.S. No. 999 of 1971, holding that the suit is maintainable without setting aside the sale deed dated 21-4-1964, executed by Dhandapani Pillai to Murugesa Pillai. Such a decision was given by the District Munsif, while taking and trying the issue as to whether the suit without setting aside the sale deed dated 21-4-1964 is not maintainable, as a preliminary issue.
2. The plaintiffs, who are respondents 1 to 4 herein, filed the suit to recover possession of the properties comprised in the sale deed dated 21-4-1964, Ex. B.1. According to the plaintiffs, one Uthandia Pillai executed Ex. A.1 settlement deed dated 21-3-1959 in favour of the first plaintiff and other plaintiffs who were not born at the time of Ex. A.1. The very same Uthandia Pillai who is no other than the grandfather of the plaintiffs, executed Ex. A.2 on 20-11-1959 making the first plaintiff as the sole legatee thereunder. Subsequent to the death of Uthandia Pillai, the plaintiffs' father Dhandapani Pillai executed the sale deed Ex. B.1 dated 21-4-1964 in respect of the suit properties in favour of the first defendant (fifth respondent herein) making the minor sons of his as eo nomine parties and describing the properties sold as the joint family properties. The first defendant in turn sold the properties comprised under Ex. B.1 to the second defendant, who is the petitioner herein. on 17-11-1965 for a consideration of Rs. 17,250. In order to get possession of the suit properties, the plaintiffs filed the suit O.S. No. 999 of 1971. In that suit, the above issue has been tried as preliminary issue and the Court held that the suit is maintainable without setting aside the sale under Ex. B.1. Aggrieved by the said decision, the second defendant, now in possession of the properties by right of purchase from the fifth respondent herein, filed this revision petition. His contention is that the suit is not maintainable without a prayer to set aside the sale under Ex. B.1 and that court-fee must be paid therefor.
3. Thiru Sarvabhauman, learned counsel for the petitioner, relies upon the plaint wherein it has been alleged that the properties were settled upon the first plaintiff and his younger brothers, who are the other plaintiffs, and also that subsequently the will was executed by Uthandia Pillai on 22-11-1959 disposing of all interest in all the properties belonging to him exclusively and also his interest in the joint family properties, in favour of the plaintiffs. From these allegations, Thiru Saravabhauman argues that since the properties belonged to minors, the sale effected by Dandhapani Pillai, father of the plaintiffs, representing the minors cannot be considered as sale in his capacity as the joint family manager, but can be considered only in his capacity as guardian for the minors and as such the plaintiffs ought to have prayed for setting aside the sale effected by their father under Ex. B.1. He further argues that as per Section 8 of the Hindu Minority and Guardianship Act, such a sale is 'voidable', and that unless there is a prayer for setting aside the sale, the sale effected under Ex. B.1 must be considered as a valid one; if that is so, possession derived under the sale by the first defendant is valid and effective so far as the petitioner (second defendant) is concerned. He also makes mention of several decisions and it is enough to quote the one reported in Neelakantan v. Kumarasami Nadar, : AIR1964Mad353 , wherein a Bench of this Court while considering the question as to whether Article 44 or Article 144, Limitation Act, applies to an alienation by the manager of the joint family observed-
'The question whether Art. 44 will apply or not, to a case where a minor seeks to recover possession, of his property from an alienee, will depend not on the form of the document but on its substance. It the minor's separate property is sold and other persons also jointed in the execution of the document the transaction will not cease to be one by the minor's guardian and Art. 44 would apply. Per contra if in a conveyance of the joint family property by the manager the minor is made eo nomine a party, the transaction can nevertheless be regarded only as one entered into by the manager himself and Art. 144 will apply.'
It is clear from the reasoning given in the said decision that if the properties sold under Ex. B.1 are considered as the properties absolutely belonging to the plaintiffs by virtue of the settlement and the Will of Uthandia Pillai, it is necessary that there should be a prayer to set aside the sale under Ex. B.1. If, on the other hand, it is construed that the properties belonged to the joint family and that as manager thereof, Dhandapani Pillai, further of the plaintiffs, effected the sale under Ex. B.1 as manager thereof, there is no need to pray to set aside the sale deed under Ex. B.1. No doubt, there is mention in the plaint that there was a settlement deed and there was also a Will in favour of the plaintiffs. But in the plaint itself there is also mention to the following effect:
'As the sale in favour of the first defendant dated 21-4-1969 was executed by Dhandapani Pillai, father of plaintiffs, in his capacity as manager which is alleged to be respect of joint family properties, the plaintiffs can ignore the same.'
In their written statement, the defendants have denied the truth and validity of the settlement and the Will of Uthandia Pillai and have stated that the properties comprised in the settlement deed and the Will belonged to the joint family consisting of Uthandia Pillai and his two sons and that the properties were treated as joint family properties. Taking all these aspects into account, the trial Court, after observing that the sale cannot be regarded as one in respect of the properties of the minors and that Dhandapani Pillai executed Ex. B-1 in his capacity as the manager of the joint family, held that the suit without setting aside the sale deed D/- 21-4-1964, is maintainable. I do not find that there is any error of jurisdiction involved in the finding arrived at by the lower court on the preliminary issue raised.
4. It would have been better if all the issues were taken up and tried, instead of this particular issue being tried as preliminary issue. There might be a dispute calling for a decision as to whether the properties are the absolute properties of plaintiffs or are the joint family properties of plaintiffs and Dhandapani. The matter might become complicated if it were held that the properties are the absolute properties of the plaintiffs, upholding the settlement and the Wills and in that case, it might be necessary for the plaintiffs to pray to set aside the sale under Ex. B.1. In that even, there might be difficulty in view of the Limitation Act, whereunder the plaintiffs could seek to set aside the sale within three years after they have become majors. Whatever it may be, it is left to the plaintiffs (respondents 1 to 4 herein) to decide as to whether they can as well amend the plaint now itself and pay necessary court-fees so as to pray for setting aside the sale under Ex. B.1. But it is purely their discretion, and I am not inclined to give my view one way or the other in the matter, since the question has to be decided after considering all the evidence placed before the lower Court. As at present, suffice it to say that there is no question of error of jurisdiction involved in the order sought to be revised for me to interfere with the finding arrived at by the Court on the materials placed before it.
5. The Civil Revision Petition is dismissed. There will be no order as to costs.
6. Petition dismissed.