1. This appeal was directed to be posted before a Bench by one of us to consider the correctness of the decision of a single judge of this court in -- 'Ramaliah v. Brahmiah', AIR 1930 Mad 821 (A).
2. The question raised is one of limitation, The plaintiff who was unsuccessful in the two courts is the appellant in this second appeal. She filed the suit for a declaration that the alienations made by Kokilambal, the 9th defendant, were not valid and did not bind her. She also sued for possession of the suit properties with future mesne profits and costs.
The properties in suit originally belonged to one Doraiswami Reddi. He died in 1929, and the properties devolved on Raghava Reddi, his son by his first wife, and after Raghava Reddi's death they devolved on Sitharama Reddi, a minor son of Doraiswami Reddi by his third wife, Kokilambal (the 9th defendant). The minor was born in 1926. During his minority the 9th defendant, Kokilambal, as his guardian effected two alienations, which are the subject-matter of the suit, one in favour of Appaji Reddi under Ex. B. 3 dated 17-2-1933 and the other In favour of the third defendant of the B-3 schedule properties, but no sale deed was produced as the third defendant, the alienee, remained 'ex parte'.
Appaji Reddi in his turn alienated the properties; but we are not concerned with this. Sitharama Reddi died in October 1936 still a minor. The plaintiff is the sister of Sitharama Reddi, and she sued in the first instance as a presumptive reversioner of the estate: but during the pendency of the suit Kokilambal died on 29-12-1944, and so a prayer for possession was also included. The trial Judge recorded findings on all the issues in the case but dismissed the suit on the ground that it was barred by limitation. On appeal the learned District Judge dealt only with the question of limitation, and on that point he agreed with the decision of the trial court and continued the decree of the trial court dismissing the suit.
3. In this second appeal therefore the only question that arises for consideration is one of limitation. The suit was admittedly filed within 12 years from the date of the alienation; but it was held by the courts below that as Sitharama Reddi died while a minor, under Section 6(3), Limitation Act the suit should have been instituted within three years from the date of the death of the minor. As the suit was filed on 18-2-1943, more than three years from the date of death of Sitharama Reddi if was held that the suit was barred by limitation.
In support of the view taken by the courts below the decision of a single Judge of this court in -- 'AIR 1930 Mad 831 (A)', was relied on, in which limitation was counted from the date of the death of the minor under Section 6(3), Limitation Act-The question is whether the view taken by the courts below is correct. On behalf of the appellant it was claimed that the suit was within time, as it was filed within 12 years from the date of the alienation and even within 3 years from the date when the minor would have attained majority, had he been alive. This is of course on the basis that Article 44, Limitation Act applies to the case.
4. Article 44, Limitation Act was introduced for the first time by Act 15 of 1877. Under Act 9 of 1871 there was no special period prescribed for a suit by a ward to set aside an alienation by a guardian. It has been held that the Art-44 applies only to an alienation by a legal guardian and not by a 'de facto' guardian.
It has also been held that though the Article in terms is confined to a suit by a ward who had attained majority to set aside a transfer of property by his guardian, it applies also to a suit to recover possession of the property alienated by the guardian, as in such an event it is incumbent upon the ward to set aside the transfer, that is, to remove the legal impediment in the way of his recovering possession, and if he fails to do that within the period allowed by law, namely, three years after he attained majority, his title to the property itself would be extinguished under Section 28, Limitation Act. (See -- 'Madugula Latchiah v. Pally Mukkalinga', 30 Mad 393 (B), --'Kandasami v. Irusappa', AIR 1918 Mad 724 (C) and also -- 'Ramaswami v. Govindammal' : AIR1929Mad313 , where the decisions are found collected). It is also settled law that the Article applies only to voidable and not to void transactions.
5. The policy underlying the introduction of Article 44, Limitation Act by the Legislature, it seems to us, is to cut down the period of limitation in the case of voidable transactions effected on behalf of a minor by a guardian with a view to make the minor elect either for or against the transaction within a shorter period. If he fails to exercise his option of avoiding the transfer within the period of three years after he attained majority he not only loses the right to avoid the transaction but also loses the property itself.
In other words, his title becomes extinguished under Section 28, Limitation Act after the lapse of a period of three years from the date of his attaining majority. Even if the alienation was effected by the guardian just before the minor attained majority, and assuming that the minor had a period of 12 years to sue for possession from the date of the alienation, if the three years' period expired within that period of 12 years the quondam minor's right would be extinguished; that is, the period of 12 years would be cut down to three years. It may be in some cases the minor may get an extended period of more than 12 years; but all this is on the assumption that there is an article in the First Schedule to the Limitation Act, which provides a period of 12 years to such a suit other than Article 44. The residuary Article 144 which is very often referred to cannot be relied on when there is the specific Article applicable to the case, namely, Article 44. Vide -- 'Ankamma v. Kameswaramma', AIR 1935 Mad 1 (E) affirmed in -- 'Ankamma v. Kameswaramma : AIR1936Mad346 .
It has been consistently held in this court following the decisions of the Bombay High Court in -- 'Laxmaya v. Rachappa', : AIR1918Bom180 (G) and -- 'Fakirappa Limanna v. Lumanna', AIR 1920 Bom 1 (H) that the same period of limitation would apply to a transferee from the minor of the property alienated after the minor had attained majority. That is, the transferee would not be in a better position than the minor and he could not get an extended period of limitation and must sue within the same period as would be applicable if the minor had instituted the suit, namely, three years from the date of the minor attaining majority. Vide : AIR1929Mad313 in which all the cases bearing on the question have been exhaustively reviewed.
6. If therefore a minor lived till he attained majority and either instituted the suit himself to recover possession of the property or assigned his right to an alienee, in either case the suit has to be instituted even if it be for recovery of possession within three years from the date on which the minor attained majority, for the transferee cannot be in a better position than the minor himself. In other words, it means that the option of avoiding the transfer should be exercised within the period limited by law whether it is the minor who directly instituted the suit or his transferee. The transferee in such a case acquires the property subject to the right of the minor's option being exercised within three years from the date of the minor attaining majority.
The difficulty in the present case is created by the fact that the minor died before he attained majority. It was conceded in -- 'AIR 1930 Mad 821 (A)' that the proper Article applicable to such a case is Article 44; but it was held that the time should be computed not from the date on which the minor if he had lived would have attained majority but from the date of his death invoking the provision under Section 6 (3) of the Limitation Act. When the property devolves upon a legal representative, he takes it subject to the rights and disabilities to which the minor was subject to under the law. Unlike the provision in section 6, Limitation Act, in view of the decisions permitting the transferee to exercise the option it must be held that the duty laid down under Article 44, Limitation Act on the minor of exercising the option after he attains majority is not analogous to the personal privilege conferred upon the minor under Section 6, Limitation Act. The legal representative takes the propertysubject to the right of avoidance of the alienation made by the minor's guardian. There is no other Article in the Limitation Act which provides for a period of limitation for setting aside a transfer by the guardian of the minor other than Article 44, and it has been held in -- 'AIR 1935 Mad 1 (E)' which was affirmed by the Bench that there could be no question of adverse possession in such a case and therefore Article 144 would not apply.
Article 144, it has been held in that case, would also not apply for the additional reason that there is a specific Article. Under the Limitation Act 'plaintiff' is defined as 'including any person from or through whom a plaintiff derives his right to sue'. No doubt under the first column of Article 44 the word 'plaintiff' is not used, but the ward undoubtedly is the plaintiff contemplated by the Article. The ward's assignee when he instituted the suit is held to come within the first column of the Article in -- 'AIR 1929 Mad 313 (D)'.
There is no reason for not adopting a similar construction in the case of a legal representative of the ward who would be the plaintiff in a suit instituted after the minor's death as the definition of 'plaintiff' includes a person from or through whom the plaintiff derives his right to sue. In the absence of any other provision in the Limitation Act there is no reason for not allowing the legal representative of the minor who dies before he attains majority to exercise the option within the same period as the minor would have done if he had survived till he attained majority.
Section 6 (3) was invoked in -- 'AIR 1930 Mad 821 (A)' on the ground that Article 44 was only an illustration of the principle underlying Ss. 6 and 7, Limitation Act. It may be partially true, but it is difficult to apply Section 6 to cases falling under Article 44. Whatever might, be the date of the alienation made by the guardian, the time has to be reckoned not from the date of the alienation but from the date when the minor attained majority. Section 6 assumes that on the date from which the period of limitation is to be reckoned the person who claimed the benefit of the section was a minor. There is no question of a major being a minor, in a case where Article 44 applies, at the time from which the period of limitation is to be reckoned according to the third column of the Article.
As pointed out by Sundara Aiyar J. in -- 'Doraiswami Serumadan v. Nondisami Saluvan', AIR 1915 Mad 1201 (I), by Varadachariar J. in -- 'AIR 1935 Mad 1 (E)' and by Viswanatha Sastri J. in -- 'Palaniappa Goundan v. Nallappa. Goundan', : AIR1951Mad817 (J) the view expressed in --'AIR 1930 Mad 821 (A)' seems to us unsustainable, though it was supported by the observations of Abdur Rahim J. and Sadasiva Aiyar J. in -- 'AIR 1915 Mad 1201 (I)'. The clear language of Section 6 excludes the applicability of the provisions in that section to a case falling under Article 44.
7. If therefore Section 6 does not apply, the application of Section 6 (3) where Article 44 applies, seems to us, is not justified, and the view taken in -- 'AIR 1930 Mad 821 (A)' that when a minor dies before attaining majority the period should be counted from the date of his death applying Article 44 seems to us is not warranted. In our opinion, the right which is being exercised by the legal representatives is the right of the minor to avoid the transfer, and stepping into the shoes of the minor he must exercise it with-in the same period which would have been allowed to a minor had he been alive till he attained majority. This view, in our opinion, is in consonance with the policy underlying Article 44, Limitation Act, namely, of compelling the minor to exercise the option of avoiding the transfer within a shorter period. The same disability must therefore apply to persons claiming through the minor either as transferees or as legal representatives, and they must also exercise the option during that period, namely, within three years from the date when the minor would have attained majority had he been alive.
8. For these reasons we are of opinion that as the suit was filed within the three years, it was in time. No case has been cited in support of the contention of the plaintiff that a period of 12 years' limitation should be applied counting from the date of the alienation as Article 44 does not apply to such a case. We think therefore that the view taken by the Courts below on the question of limitation is wrong.
9. In the result, the second appeal is allowed, the decision of the learned District Judge is set aside, and the appeal is remanded for disposal on the other issues as he has not recorded findings thereon. The appellant is entitled to his costs in this court. The costs in the lower court will be provided for in the revised decree to be passed by it. Court-fee to be refunded.