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Raja Ramaswami (Dead) and ors. Vs. Govindammal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Property and Limitations
CourtChennai
Decided On
Reported inAIR1929Mad313; 118Ind.Cas.481; (1929)56MLJ332
AppellantRaja Ramaswami (Dead) and ors.
RespondentGovindammal and ors.
Cases ReferredHanmant Gurunath v. Ramappa Lagamappa. We
Excerpt:
- - it is now well-settled that this article applies not only to setting aside the transfer of property made by a guardian appointed by a court or by will but also to suits for setting aside a transfer of property made by a natural guardian. defendant 1) shall use and enjoy the same with power to gift, mortgage or sell the same and no other person shall be entitled to possession of or have concern in respect of the aforesaid house and ground. 17. this clause clearly shows that the property devised to defendant 1 should be regarded as his exclusive property and not as ancestral property coming to him from his grandfather. 19. as regards the first point, it has been well-settled by several decisions of their lordships of the privy council that it is not the form of the relief claimed.....thiruvenkatachariar, j.1. this is an appeal preferred by defendant 3 in o.s. no. 641 of 1924 on the file of the city civil court. by the decree passed in that suit the appellant is directed to deliver up to the plaintiff, who is the 1st respondent in this appeal, possession of the suit property and also pay him the mesne profits as ascertained therein and also his costs of the suit. defendant 5 in the suit is impleaded as respondent 2 in this appeal.2. the material facts of the case as to which there is now no dispute are as follows:the suit property which is a house and ground in old washermanpet belonged to one venkatarama chetti. he died on 6th september 1904, leaving him surviving a son named rangan chetti, a grandson by that son named krishnappa chetti and also a widowed daughter and.....
Judgment:

Thiruvenkatachariar, J.

1. This is an appeal preferred by defendant 3 in O.S. No. 641 of 1924 on the file of the City Civil Court. By the decree passed in that suit the appellant is directed to deliver up to the plaintiff, who is the 1st respondent in this appeal, possession of the suit property and also pay him the mesne profits as ascertained therein and also his costs of the suit. Defendant 5 in the suit is impleaded as respondent 2 in this appeal.

2. The material facts of the case as to which there is now no dispute are as follows:

The suit property which is a house and ground in Old Washermanpet belonged to one Venkatarama Chetti. He died on 6th September 1904, leaving him surviving a son named Rangan Chetti, a grandson by that son named Krishnappa Chetti and also a widowed daughter and two grandchildren by her. On 22nd July 1904, he executed a will in respect of his properties which among others comprised the suit property. As regards the suit property, the provisions of the will gave to the son Rangan Chetti a life estate therein without power of alienation and the remainder absolutely to the grandson Krishnappa Chetti with full powers of alienation. An allowance of Rs. 6 per. month was also directed to be paid to the daughter and her children out of the income of the suit property until she got possession of her husband's estate: see Ex. A.

3. On 6th February 1905, the suit property was conveyed by a deed of sale to defendant 2 Gurunatha Mudaliar and his father Raju Mudaliar by the following persons, namely: (1) Rangan Chetti for himself and as father and guardian of his minor son Krishnappa Chetti, (2) Rangan Chetti's wife Angammal (3), Venkatarama Chetti's daughter, whose name is herein given as Peddiammal acting for herself and as guardian of her two minor children. The sale deed recites the receipt by the vendors of the consideration of Rs. 800 for which the property was sold and the delivery of possession of the property to the purchasers. Since then the suit property has all along been in the possession of defendant 2's family. Defendant 3 is the son of defendant 2 and by some family arrangement, which it is unnecessary to refer to, the suit property was in his possession and enjoyment at the date of the suit, a portion thereof having been let by him to defendant 4.

4. Rangan Chetti died on 25th October 1913. On 7th March 1923 his son Krishnappa Chetti defendant 1 in the suit, executed a sale deed for the suit property in favour of the plaintiff, Govindammal for Rs. 1,500. The plaintiff has thereafter filed this suit on 1st December 1924, for recovery of possession of the property with mesne profits from defendants 2 to 4. Her case is that the sale of 6th February 1905 to defendant 2 and his father was invalid as against defendant 1; it was not made for any purpose binding on defendant 1 who was then a minor and his father Rangan Chetti had no power under the will to dispose of the property in any manner. The plaintiff is therefore entitled to possession of the property with mesne profits from the date of the sale to her. In the alteanative, the plaintiff prays that if the Court should hold that the plaintiff is not entitled to a decree for possession of the property, she should be given a decree against defendant 1 for Rs. 1,500 being the consideration paid by her to him for the sale, with interest thereon from the date of the sale.

5. Defendant 1 put in a written statement-admitting the sale of the suit house and ground by him to the plaintiff for Rs. 1,500 and stating that the sale of the suit property by his father to defendant 2 and his father was a collusive and fraudulent transaction and that it cannot affect his title to the property. The plaintiff in virtue of the sale deed, he (defendant 1) has executed in her favour is entitled to a decree for possession of the property with mesne profits; but even if the Court should hold that she is not entitled to those reliefs she cannot claim the repayment to her by him (defendant 1) of the consideration paid by her for the sale.

6. Defendant 3, who was the contesting defendant in the lower Court, contended that the suit property did not belong to Venkatarama Chetti through whom defendant 1 claimed but that it belonged to his wife Krishnammal whose heirs sold the same to defendant 2 and his father. He also denied the genuineness of the 'will of Venkatarama Chetti. He pleaded further that the sale was valid as it was made for discharging certain family debts of the vendors. Lastly he contended that the suit was barred by limitation as from the date of the sale deed of 6th February 1905 he and his predecessors in title have been in continuous possession of the property as the owners thereof.

7. The genuineness of the will is not open to question as defendant 1 obtained letters of administration for Venkatarama Chetti's estate with the will annexed. The plea that the property did not belong to Venkatarama Chetti but to his wife was also given up at the trial and the only questions upon which the parties went to trial and which are necessary to be referred to in this appeal are : (1) whether the sale of 6th February 1905 to defendant 2 and his father was made for any purpose binding on defendant 1 and (2) whether the suit is barred by limitation.

8. The learned City Civil Judge decided both those questions in plaintiff's favour. His findings are : (1) that the sale of the property by defendant 1's father to defendant 2 and his father was not made for any purpose binding on defendant 1; and (2) that the suit is not barred by limitation as it has been filed within twelve years from the date of defendant 1's father's death (25th October 1923) when defendant 1's cause of action arose, the suit being governed by Articles 123 and 136, Limitation Act. He finds also that the suit is instituted within three years from the date of defendant 1 attaining his majority. Upon those findings he gave a decree to the plaintiff against defendant 3 for possession of the suit property with mesne profits. Against that decree this appeal has been preferred.

9. The main contentions urged before us on behalf of the appellant are : (1) that the evidence in the case makes out the plea, that the sale was made for a necessary purpose, if not wholly, at any rate to the extent of Rs. 300 which went towards the discharge of a mortgage to which the property was subject at the date of the sale; and (2) that the suit is barred by limitation under Article 44, Lim. Act, which is the article which applies to the case.

10. On the first question, namely, as regards the validity of the sale-deed of 6th February 1905 in favour of defendant 2 and his father we have been referred to the evidence as to the payment of the consideration therefor and as to whether any portion thereof went towards the discharge of any mortgage then subsisting on the property which had been effected by Venkatarama Chetti. We see no reason for holding that the trial Judge has not correctly appreciated that evidence. We are unable to accept the contention of the respondent's advocate that no consideration is proved to have been paid for the sale-deed and that in substance it amounts to a gift. It seems to us hardly likely that not only Rangan Chetty against whose character aspersions are made by the plaintiff and defendant 1 (whether with or without justification) but his wife who was interested in protecting her son's right in the property and was also a legatee under the will and his sister who had an interest in the property on account of the allowance provided for her and her children out of its income, would all have joined to execute an absolute conveyance to defendant 2 and' his father and without the receipt of any consideration therefor, and would have delivered possession of the same ever since as the owners thereof. We accept the finding that the sale was made for consideration but that it is not shown that it was made for any purpose binding on the minor to any extent.

11. On this finding the next question we have to consider is whether the suit is barred by limitation. The learned City Civil Judge considers the question in para. 13 of his judgment. He holds that the suit is governed by Articles 123 and 136,. Lim. Act, and that their combined effect is to give a period of 12 years for the' present suit from the date when defendant 1 became entitled to possession of the property which was 27th October 1913, the date of his father's death. He holds that the suit being instituted within that period is not barred by limitation. He finds also that when this suit-was instituted defendant 1 was under 21 years of age and that it is therefore within time in any case. (The word plaintiff in this contest is an obvious slip for defendant 1). This observation of the learned Judge may be taken to refer to the provisions of Sections 6 and 8 and Article 44,. Lim. Act. But the learned advocate on both sides who also appeared in the lower Court say that the applicability of Article 44 to the case was not argued at all in the lower Court and that the observation has therefore reference only to Sections 6 and 8 of the Act.

12. It is contended before us on behalf of the appellant that the article of limitation which has to be applied to this case is Article 44 and that neither of the articles relied on by the learned Judge nor Article 140 (suit by a remainderman for possession of immovable property), nor Article 144 under which the starting point is the date when the possession of the defendant becomes adverse to the plaintiff, apply to the case. Under-Art. 44 the suit has to be instituted within, three years from the date the ward attains majority. If that article applies to the case, the question as to when the ward (i.e., defendant 1) attained majority becomes material. On that question the appellant contests the finding of the City Civil Judge and argues that he should have found that the suit was instituted more than three years after defendant 1 attained majority and that it is therefore barred by limitation.'

13. The respondent's advocate on the other hand contends that Article 44 does not apply to the case; he supports the view taken by the lower Court as to the articles which apply to the case. He relies also on Articles 126, 140 and 144. As regards the applicability of Article 44 he further contends that it applies only to a suit by the ward himself and not to a suit by a transferee from the ward; the transferee's case is governed by Article 136 under which he has 12 years from the date when his vendor became entitled to possession.

14. There can be no doubt that if Article 44 does not apply to this case, the suit will be within time under any of the other articles which have been referred to as applicable to it, as the starting point of limitation under all those articles from which he has a period of 12 years for the suit is undoubtedly the date when defendant 1 became entitled to possession viz., 25th October 1913. The question we have therefore to consider is whether Article 44 applies to the case and that involves a consideration of the question of fact as to when defendant 1 attained majority. The onus is on the plaintiff to prove when his vendor attained majority. (After dealing with evidence the judgment proceeded.) We are of opinion that when the suit was filed more than three years had elapsed after defendant 1 attained majority and if Article 44 applies to the ease, we must hold that the suit is barred by limitation.

15. The next question we have to consider is whether this is a suit by a ward who has attained majority to set aside a transfer of property by his guardian. It is now well-settled that this article applies not only to setting aside the transfer of property made by a guardian appointed by a Court or by will but also to suits for setting aside a transfer of property made by a natural guardian. Turning to Ex. 1 which is the sale-deed for the suit property, under which the contesting defendants claim, it will be seen that under it the property is conveyed to the purchasers by all the persons who under the will were interested in that property. The vendors under Ex. 1 are: (1) defendant 1's father who had a life-interest in it; (2) defendant 1 a minor represented by his father and guardian who was entitled absolutely to the remainder subject to the life-estate of his father; (3) Ettiammal, the daughter of the testator, and her minor children represented by her as their guardian to whom a monthly allowance was payable out of the income of the property until Ettiammal got possession of her deceased husband's estate. The minor's mother Angammal was also a party to the document though she was not given any rights in this property, but was a legatee under the will. It is evident that all those interested in the property and also Angammal who was interested in the minor joined in the conveyance in order to convey the entire interest in the property to the purchasers and that it was their combined rights under the will (Ex. A) which they conveyed to the purchaser. So far as defendant 1 is concerned, he had then a vested interest in it which was transferable and it was transferred on his behalf by his father and natural guardian.

16. The respondent's advocate contended that defendant 1's father in making the transfer of his minor son's interest in the property must be regarded as acting in his capacity as father and managing member of the family and in that view Article 126 will apply to the case That contention will have force if the property dealt with by him was joint ancestral property of himself and his minor sons, but the will did not create any joint interest in the property in favour of defendant 1 and his father but only a distinct and separate interest therein in favour of each of them. The interest of the son though vested was to take effect only from the death of the father. The will further provides that the grandson:

S alone (i.e. defendant 1) shall use and enjoy the same with power to gift, mortgage or sell the same and no other person shall be entitled to possession of or have concern in respect of the aforesaid house and ground.

17. This clause clearly shows that the property devised to defendant 1 should be regarded as his exclusive property and not as ancestral property coming to him from his grandfather. Article 126 which applies to suits by a Hindu governed by the Mitakshara to set aside alienations of ancestral property cannot therefore apply to the case: see, Arumugam Pillai v. Panayadian Ambalam A.I.R. 1921 Mad. 42 (sic) .

18. It is next contended that Article 44 does not apply to this suit because (1) it is a suit for possession of the property and not merely to set aside the transfer and (2) the suit is brought not by the ward but by his transferee.

19. As regards the first point, it has been well-settled by several decisions of their Lordships of the Privy Council that it is not the form of the relief claimed which determines the real character of the suit for the purpose of ascertaining under which article of the Limitation Act the suit falls. Though the relief claimed in the suit is possession of immovable property, yet if the property sued for is held by the contesting defendant under a sale or other transfer which is not void, but only voidable, and he cannot obtain possession without the transfer being set aside, the suit must be regarded as one brought to set aside the transfer though no relief in those terms is prayed for, but the prayer is only for possession of the property. It has been so held with reference to Article 12, Lim Act, where the defendant is in possession under a sale held in execution of a decree of a Court and also as to Article 91 where the instrument under which the defendant claims is one which is prima facie binding on the plaintiff. The same view was also taken with regard to the article in the old Limitation Act relating to suits brought to set aside an adoption. Their Lordships held in Jagadamaba Chowdhrani v. Dakhina Mohun Roy [1886] 13 Cal. 308 that even when the plaintiff did not in terms sue to set aside an adoption but only to recover possession of property on his prima facie title as reversionary heir he was bound to bring his suit within the time allowed by Article 129, Act 9 of 1871, provided the defendant was in possession by virtue of an apparent adoption; and the plaintiff was not at liberty to bring his suit within the time allowed to reversionery heirs by Article 142 of that Act. As regards Article 12, Lim. Act, which relates to suits to set aside a sale in execution of a decree of a civil Court the leading case is Mallkarjun v Narhari [1901] 25 Bom. 337. Their Lordships in that case held that though the suit was brought for redemption of a mortgage of immovable property for which the period of limitation is 60 years, yet as the defendant the mortgagee had purchased the equity of redemption in a judicial sale which was operative against the plaintiff, though liable to be set aside for due cause, the suit is governed by Article 12 and must be brought within the period of one year prescribed by that article. At p. 350 after referring to the case in Jagadamba Chaudrani v. Dakhina Mohun Roy Chaudhri, as supporting that view their Lordships observe with regard to that case:

There was difficulty in the case because the expression 'set aside an adoption' is inaccurate. An adoption cannot be set aside though its validity may be impeached and in fact the language was altered in 1877 before the appeal was heard.

20. Turning to the case before them their Lordships observe with regard to Article 12:

It is obvious that the expression 'set aside a sale' is not attended by any such difficulty because a sale valid until set aside can be legally and literally set aside and' anybody who desires relief inconsistent with it may and should pray to set it aside.

21. In Fakirappa Limanna v. Lumanna Mahadu [1920] 44 Bom. 742 which was also a suit for redemption of a mortgage. Article 44 was applied following Mallkarjun v. Narhari, and the suit dismissed as no suit had been brought to set aside the transfer made to the mortgagee of the equity of redemption by the minor's mother, within the period allowed by that article.

22. The same view was taken with regard to Article 91, Lim. Act, 1877 when the plaintiff sought to recover immovable-property which he had himself transferred under a sale-deed to the defendant on the ground that it had been obtained from, him by fraud and undue influence. Their Lordships held that it was not a suit for possession of immovable property in the sense to which the limitation of twelve years is applicable. The immovable property could not be recovered until the deed of sale is set aside and the suit therefore falls within Article 91, Schedule 2, Lim. Act (Act 15 of 1877): see Janki Kunwar v. Ajit Singh [1887] 15 Cal. 58; also Mohesh Narain Munshi v. Taruck Nath Naitra [1893] 20 Cal. 487

23. The same view has been taken with regard to Article 44, with which we are here concerned, by this Court in the following cases. Madugula Latchiah, v. Pally Mukkalinga [1907] 30 Mad. 393 Kandasami v. Irusappa [1917] 41 Mad. 102 Arumugham Pilial v. Panayadian Ambalam and by the Bombay High Court in Fakirappa Limanna v. Lumanna Bin Mahadu, which has already been referred to. These cases are authority for the position that a sale deed executed by the guardian of a minor though unauthorized, vests the title to the property in the alienee and the minor has therefore to sue to set it aside. In the language of their Lordships of the Privy Council in Mallkarjun v. Narhari, such a transfer is operative against the minor and those claiming under him, though liable to be set aside for due cause. These cases also establish that though Article 44 describes the suit to be brought by the ward as a suit merely to set aside the transfer of his property by his guardian, if the transferee has obtained and is in possession and the ward has therefore to add a prayer for the relief of possession Article 44 alone still applies to the suit though brought within the time allowed by Art; 44, the title of the ward becomes extinguished under Section 28 of the Act.

24. The appellant's advocate relies also on the observations of their Lordships of the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram [1900] 23 Mad. 271. In that case the minor Chockalinga's mother sold his right of management of a pagoda for a consideration. The sale was made on 17th September 1868 and from that time the purchaser was in enjoyment of the office and its endowments. The minor attained majority in 1880 and brought the suit in August 1892 for recovery of the office and possession of the immovable properties forming the endowment of the temple. Their Lordships held that the sale by the mother of the office was void and did not give any title to the purchaser which remained in the minor and the possession which was taken by the purchaser was adverse to him. Their Lordships in upholding the plea of limitation raised by the, defendant observed as follows:

Chockalinga attained majority in 1880 and had by Article 41 of the Act three years for suing to set aside the sale by his guardian. He did not do so and by Section 28, Lim. Act, his right became extinguished. Their Lordships are of opinion that there is no distinction between the office and the property of the endowment. The one is attached to the other, but if there is, Article 144 of the same schedule applicable to the property that bars the suit after 12 years' adverse possession.

25. This case was relied on as supporting the contention that Article 44 applies even to an alienation by the guardian which is void and under which no title passes to the purchaser. The observations of their Lordships may seem open to that construction. But when the facts of the case are looked at, it will be seen that the purchaser of the office under the void sale held possession thereof and of its endowments adversely to the minor for more than the statutory period prescribed by Article 144 and their Lordships held that the suit was also barred under that article. Whether Article 44 applies or not, the minor had three years under Section 7 of the Act after he became a major for bringing the suit and as he did not bring the suit within that period his title became extinguished under Section 28. In the other cases referred to above, their Lordships clearly lay down that a suit to set aside the sale has to be brought because the purchaser acquires, a title under the sale, though it is defeasible at the instance of the plaintiff. In other words, Article 44 applies to transfers which are voidable and not void. The view taken in these cases must be followed as the point directly arose in them and was the basis of their Lordships' decision whereas in Gnanasambanda Pandara Sannadhi v. Velu Pandaram the suit was in any view held to be barred-whether under Article 44 or Article 144. In the present case there is no question of the sale being void. We have already disposed of the contention raised on behalf of the respondent that the transfer under Ex. 1 was really a gift and was therefore void as one which we cannot accept as correct. We are therefore of opinion that if this suit had been brought by defendant 1 himself it would be barred under Article 44, Lim. Act.

26. The next question we have to consider is whether the contention that Article 44 does not apply to a suit by a purchaser from the ward and that to a suit by the purchaser the 12 years rule of limitation should be applied is sustainable.

27. This contention is based on the wording of the first column of this article which is

by a ward who has attained majority to set aside a transfer or property by his guardian.

28. The expression by a ward, if construed literally, no doubt lends itself to such an interpretation and if that is the correct view to take, a suit by those claiming under the ward, for recovery of property transferred by the ward's guardian will be governed by some other article. The contention advanced before us is that a suit by those claiming under the ward either as his legal representative or as his assignee will be governed by the article which will apply to the ward himself for the recovery of the property if Article 44 is to be excluded; in other words a suit by those claiming under the ward will so far as the present case is concerned be governed by Article 140 or 144. Under either of those articles the starting point of limitation is the date when the ward became entitled to possession, viz., 25th October 1913 from which date the possession of the purchaser under Ex. 1 became adverse to him. This contention if upheld will save the suit from the bar of limitation. So far as the authorities are concerned the only oases bearing on the question to which we were referred are Laxmava v. Rachappa [1918] 42 Bom. 626. Fakirappa Limanna v. Lumanna Bin Mahadu (4) and Hanmant Gurunath v. Ramappa Lagamappa : AIR1925Bom292 .

29. In Laxmava v. Rachappa [1918] 42 Bom. 626 which was a suit brought by the transferee of the ward after the latter attained majority for possession of property which had been alienated by the ward's natural guardian, it was held that Article 44 applied to the case and that the suit was barred by limitation under that article. In the next case Fakirappa Limanna v. Lamanna Bin Mahadu, a Hindu minor's mother acting as his natural guardian had sold in 1891, to the mortgagee of the minor's property, the equity of redemption, without necessity. The son attained majority in 1895 and died in 1901 leaving a widow who died in 1908. In 1916, the next reversioner sued to redeem the mortgage. It was held that the suit was barred under Article 44 as the son ought to have sued to set aside the alienation within three years after his attaining majority. These two cases are clear authorities for the proposition that so far as Article 44 is concerned, those claiming under the ward stand in the same position as the ward himself and if he is barred under Article 44 they are in no better position. Upon the facts of the case in Laxmava v. Rachappa the suit was brought on 12th August 1913 for possession of properties alienated by the ward's natural guardian on 31st May 1909 and if the respondent's contention is sound and the article of limitation to be applied is Article 144 the suit by the purchaser would be within time. It is, however to be observed that in this case the conclusion is not reached by any discussion of the question but rather assumed as obvious.

30. These two cases further show that Article 44 may often operate to curtail the 12 years period of limitation for the recovery of the property (or the 60 years period for the redemption of a mortgage) which the ward would have if Article 44 is out of the way. That would be the result in all those oases where the guardian makes the alienation shortly before the ward attains majority and if the ward does not sue within the three years period allowed by Article 44 from the date of his attaining majority, his right to the property becomes extinguished under Section 28: see Gnanasambanda Pandara Sannadhi v. Velu Pandaram, Malkarjun v. Narhari and Madugula Latchiah v. Pally Makkalinga. When that happens he is no longer in a position to convey any right to his purchaser but so long as his right to the property is not extinguished he can transfer it, and if he does so, the transferee will prima facie have to sue within the same period as his transferrer; but if the 12 years rule is to be applied to the assignee of the ward the result will be that the assignee's suit will be barred where it is instituted after 12 years from the date of the purchaser taking possession of the property, but it will be within time if it is instituted within 12 years from that date. In other words, in some cases he is not barred though his vendor is barred. An interpretation which results in such anomalies cannot be readily accepted as sound. In Hanmant Gurunath v. Ranappa Lagamappa the learned Judges doubted whether Article 44 applies to a suit by a transferee from the ward. On that point they observe as follows:

It would be difficult to apply this Article 44, to the case of a transferee from the ward. We are not by any means clear that Article 44 would apply to a suit filed by a transferee from the ward. It is, however, not necessary on the facts of this case to decide the question. It is enough to point out the difficulty of applying Article 44 to a simple suit by a transferee from the ward. The article refers to a suit by a ward who has attained majority. Assuming without deciding that Article 44 would not apply to a suit by a transferee, it does not follow that where the ward joins with the transferee in suing to set aside the sale the ward cannot do so if the suit is brought within three years from the date of his attaining majority.

31. In that case the ward who had transferred the property was also a co-plaintiff and in the view that he was entitled to sue in order to effectuate his transfer to the other plaintiff by securing to him possession of the property, the learned Judges held that the suit must be treated as one rightly brought by the ward and was therefore within time and that in such a suit a decree may be given to the transferee. In this case if Article 44 did not apply the suit would be barred under the 1'2 years rule though brought within three years from the date of the minor attaining majority, as the provisions of Sections 6 and 8 by which an extended period of limitation is given to a minor or other person under disability have been held to be in the nature of privileges or exemptions to which the person under disability alone is entitled, but not a transferee from him or even his legal representative unless the person under disability dies while the disability still lasts But Sections 6 and 8, Limitation Act, do not apply to suits under Article 44 as under that article the time from which the period of limitation is to be reckoned begins only after the minority has ceased; and this is also pointed out by the learned Judges in Hanmant Gurunath v. Ramappa Lagamappa. If the policy of the legislature as appears from Sections 6 and 8 be to give to a minor some concessions which are only personal to himself and which an assignee from him is not entitled to it can hardly be inferred that as regards Article 44, the transferee may be in a better position than his transferror. If that is not the correct view a ward who for any reason is unable to institute a suit within the three years, may get rid of the operation of Article 44, which will extinguish his title, by simply transferring his rights to some other person. To take another case, if the ward dies soon after he attains majority but more than 12 years after the date from which time begins to run, his legal representatives will be barred if Article 44 does not apply to them as they will not have the benefit of Sub-section (3) of Section 6 as the minor died after his disability had ceased. A construction which leads to such anomalous results can hardly be accepted as satisfactory. In our opinion Laxmava v. Rachappa takes the right view. It proceeds on the principle that a person who claims under another whether as his legal representative or as assignee should in such character be governed by the same rule as would apply to the person from whom he derives his claim, the only limitation being that he is not entitled to any privileges or exemptions which the latter had. This principle is recognized in the Limitation Act itself in the definition of 'appellant' 'plaintiff' and 'defendant' and though the word 'plaintiff' does not occur in this article as it does in some others, the plaintiff in a suit under Article 44 must on principle be held to be in the same position as the ward under whom he claims. We may also in this connexion refer to Section 146, Civil P. C as recognizing the same principle. It says:

Save as otherwise provided by this Code or any other law for the time being in force where any proceeding may be taken and application made by or against any person then the proceeding may be taken or the application may be made by or against any parson claiming under him.

32. We may also point out that there are other articles in the schedule besides Article 44 as to which also a literal reading thereof may lead to the same doubt, viz., whether they apply to persons claiming under the person specified in the article. We may first refer to Article 136 which relates to a suit by a purchaser of immovable property for possession thereof. Can it with any reason be contended that the article does not apply to those claiming under the purchaser? Turning to Col. 3 of that article, a literal interpretation thereof will make the period of limitation under that article run from the date when the immediate vendor to the plaintiff became entitled to possession. That would clearly be an erroneous interpretation. In Abbas Dhali v. Masabdi Karikar [1914] 24 I.C. 216 it has been held that where there have been transfers by successive vendors all out of possession the term 'vendor' includes the first in the series of vendors entitled to sue for possession; or take Article 140, ' suit by a remainderman or devisee for possession of immovable property;' obviously it should apply also to those claiming under him whether as his legal representatives 'or as assignees. In these articles the word ' plaintiff ' does not occur in Col. 1; or the word 'defendant' in the Col. 3. We have considered this question at some length on account of the doubt expressed by the learned Judges of the. Bombay High Court in Hanmant Gurunath v. Ramappa Lagamappa. So far as the suit by the legal representatives of the ward is concerned it may be that if the ward dies during his minority Article 44 will not apply to a suit by his legal representative for recovering the property alienated by the guardian, whereas if the ward dies after the attainment of majority Article 44 will apply. But that result follows from the express provisions contained in the Act itself, though it may be that there is no fresh cause of action for the ward on his attaining majority. The principle of Article 44 seems to be that when the ward attains majority he should if he desires to avoid the alienation made by his guardian bring his suit within the time limited under that article irrespective of the period which he had otherwise.

33. As regards the ward's assignees, however, the only articles which could be applied is Article 44 as it is only after the ward becomes a major, he acquires the capacity to make the transfer and any transfer made by him during his minority is under the law void. There need be, therefore, less hesitation in applying Article 44 to the assignee from the ward. Moreover the ward himself is also a party to the present suit and though he is impleaded as a defendant he is substantially a co-plaintiff as it is his right which the plaintiff seeks to enforce and it is a mere matter of form that he is not also a co-plaintiff as in Hanmant Gurunath v. Ramappa Lagamappa. We are, therefore, of opinion that Article 44 applies to this case and the suit not having been instituted within three years from the date of defendant 1's attaining majority we have to hold that it. is barred under Article 44 and on that ground, the suit must be dismissed as against defendants 2 to 5.

34. The respondent's advocate contended that in such an event he is entitled to the alternative relief claimed by him, (i.e.), to a decree against defendant 1 for the refund of Rs. 1,500, with interest. Defendant 1 was originally not made a party to this appeal, but subsequently upon the application of the respondent he was brought on the record. When the appeal came on for hearing subsequently he did not appear. We find that in his written statement he admits the sale to the plaintiff and the receipt by him from the plaintiff of the consideration therefor, viz., Rs. 1,500, but at the same time he denies the plaintiff's right to claim a refund of that amount from him in any event. An issue was framed in the suit with regard to this alternative relief, but in the view taken by the lower Court this question did not arise. But in the view we take, the trial of that issue becomes necessary and for that purpose the case will go back to the lower Court. In the result we reverse the decree of the lower Court and dismiss the suit as against; defendants 2 to 5.

35. As regards costs we find that the contesting defendants 3 to 5 denied the genuineness of the will of Venkatarama Chetty and also set up that the suit property belonged to Krishnammal and not to Venkataraman Chetty, a defence which they abandoned in that Court itself and they did not also contend that Article 44 applies to the case. For these reasons we allow to the contesting defendants their costs of this appeal only and direct them to bear their own costs in the lower Court. The case will be remitted to the lower Court for the trial of the alternative case put forward against defendant 1.


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