M.M. Ismail, J.
1. The defendants 1 and 2 in O.S. No. 4 of 1967 on the file of the Court of the Subordinate Judge, Tirupattur, North Arcot District, are the appellants hcreir.
2. A simple point has been made elaborately complicated, involving considerable waste of judicial time by the failure of the Court as well as of the parties to pay attention to the actu al legal provision applicable to the case.
3. The suit was instituted by respondents 1 to 5 herein for partition and separate possession of their 5/7th share in the suit properties. The plaint also refers to the fact that the suit properties have been alienated under Exhibit A-2, dated 22nd August, 1957 in favour of the first defendant by the third defendant acting for herself and as guardian of the respondents 1 to 5 as well as respondents 7 and 8 herein. The suit has also been valued under Section 37(4) of the Tamil Nadu Court-fees and Suits Valuation Act, 1955, for cancellation of the said sale-deed itself, though the prayer in the suit is simply for partition and recovery of possession of the 5/7th share along with mesne profits from the appellants herein. The sixth respondent the second wife of one Ghinna Gopal Naidu, and respondnets 1 to 5,7 and 8 are the children of the sixth respondent through the said Ghinna Gopal Naidu. The said Chintia Gopal Naidu had two sons by his first wife, Krishnaswami Naidu and Raja gopal Naidu. Exhibit A-1 dated 20th September, 1956 is styled as a release deed by the sixth respondent herein acting on her behalf and as the guardian of the minor children viz., respondents 1 to 5,7 and 8, releasing their interest in the B schedule properties in the place of the A schedule properties which they had taken. The Said A schedule properties are the lands which were subsequently alienated by the sixth respondent on her behalf and as guardian of the respondents 1 to 5,7 arid 8 under Exhibit A-2, dated 23rd August, 1957 for a consideration of Rs. 5,000 in favour of the first appellant herein. The suit was instituted by respondents I to 5 putting forward the contention that the said alienation was not binding on them, and, therefore, they were entitled to claim 5/7th share in the suit properties from the appellants herein. TKe second appellant carne to be impleaded as a party because he claimed to be in possession of the properties as a result of a partition arrangement entered into between the first appellant and the second appellant they being brothers in 1958.The 5/7th share was claimed on the basis that respondents 1 to 5, 7 and 8 alone we entitled to the entire properties, and the sixth respondent herself had no interest in the properties.
4. The second appellant herein filed a written statement, which was adopted by the first appellant. In the written statement, the second appellant contended that Exhibit A-2 sale-deed was valid and binding on the plaintiffs in the suit and the the said alienation was effected for the benefit of the minor children, viz., for their maintenance as well as for the purpose of purchasing a house for them and for doing a business for their benefit. The second appellant also contended that subsequently, he had spent a considerable amount of money by way of improvements to the properties in question, and in any event, the appellants would be entitled to the payment of the value of improvements as well as the refund of the amount of consideration they paid under Exhibit A-2. Subsequently, an additional written statement was filed by the second defendant on 15th November, 1971 in which it was contended that the suit was barred by limitation.
5. On the basis of these pleadings, the following issues were settled for trial:
(1) Whether the sale deed dated 22nd August, 1937 is true, valid and binding on the plaintiffs?
(2) Whether the second defendant is entitled to improvements and.if so, to what amount?
(3) Whether the plaintiffs are entitled to mesne profits and if so, from what date and at what rate?
The following additional issue was framed on 7th December, 1971:
(4) Whether the suit is. barred by limitation?
6. The learned Subordinate Judge, by judgment and decree dated 20th December, 1971, decreed the suit. In view of the case bet up by the appellant herain that the alien ation under Exhibit A-2 was for the benefit of the minors and was justir fied by necessity, the learned Subordinate Judge elaborately went into the respective case of the parties and came to the conelusion that the said alienation was no for necessity and was not for the benefit of the minors. He also held that the appellants had not proved that they had spent any amount for improvements and, therefore, they were not entitled to the value of the improvements as claimed. With regard to the mesne profits, he fixed the future mesne profits at Rs. 357 per annum from the date of suit till date of delivery of possession of their share. On the question of limitation, he held that the suit was not barred by limitation. It is against this judgment and decree that the present appeal has been filed by the defendants 1 and 2 in the suit.
The following points arise for determination in this appeal:
(1) Whether the sale deed Exhibit A-2 dated 22nd August, 1957 executed by the third defendant in the suit (sixth respondent herein) acting for herself and as guardian of her minor children, respondents 1 to 5, 7 and 8, is binding on the plaintiffs (respondents 1 to 5 herein)?
(2) Whether the suit is barred by limitation?
(3) Whether the appellants are entitled to the value of any improvements they claimed to have made?
7. As far as the first point is concerned, the position is very simple. As I pointed out already, the respondents obtained the suit properties under Exhibit A-1, the release deed executed by them in favour of Ghinna Gopal Naidu and his two sons through his first wife, Krishnaswami Naidu and Rajagopal Naidu. It is these properties that have been sold under Exhibit A-2. Exhibit A-2 itself makes it clear that the sixth respondent purported to act as guardian of her minor ch ildren, in particular, respondents 1 to 5, while alienating the properties in question. The question for consideration is, whether she was competent to alienate the properties so as to make the alien ation binding on the respondents 1 to 5 herein. It must be noticed that the alienation under Exhibit A-2, dated 22nd August, 1957 was effected after the Hindu Minority and Guardianship Act, 1956, came into force on 25th August, 1956. Consequently, it is the provisions of this Act that apply to the case in question. Under Section 6 of that Act, the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are, in the case of a boy or an unmarried girl the father, and after him, the mother. Therefore this provision makes it clear that it is the father, who is the natural guardian of the minors in the present case, and the mother will become the natural guardian only after the father, and not so long as the father is alive. Section 8(1) of the Act states:
The natural guardian of a Hindu minor has power, subject to the provisions of this Section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate.
Sub-section (2) of Section 8 provides that the natural guardian shall not, without the previous permission of the Gourt, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. Sub-section (3) of Section 8 states:
Any disposal of immovable property by a natural guardian, in contravention of Sub-section; (1) or Sub-section (2), is voidable at the instance of the minor or any person claiming under him.
Sub-section (4) provides:
No Court shall grant permission to the natural guardian to do any of the acts mentioned in Sub-section (2) except in case of necessity or for an evident advantage to the minor.
Sub-section (I) of Section 9 provides:
A Hindu father entitled to act as the n atural guardian of his minor legitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the monor's property (other than the undivided interest referred to in Section 12) or in respect of both.
Section 11 provides:
After the commencement of this Act, no person shall be entitled to dispose of, or deal with the property of a Hindu minor merely on the ground of his or her being the dejacto guardian of the minor.
These provisions, therefore, provide that it is the father who is the natural guardian of his minor children and the mother will become the natural guardian only after the death of the father. The Act also provides that it is only the natural guardian who has got the power to deal with the immovable properties of the minors, and tb at too, with the permission of the Court. The further effect of this Act is that it has taken away the power of any de facto guardian to deal with the property of a Hindu minor, which power was available to a de Jacto guardian under the prior Hindu Law in certain stated circumstances. As far as the present case is concerned, it was admitted that on the date of Exhibit A-2, the father Ghinna Gopal Naidu was alive. Consequently he alone was the natyral guardian of respondents 1 to 5, and the mother sixth respondent could not be the n atural guardian. If at all, the mother could be termed only as a dejacto guardian if it is established that the minor children were living only with the mother. Even if it is so established and the mother could be said to be the dejacto guardian, under Section 11 of the Act, she had no competency to deal with |the immovable properties of the minors, and, therefore, the alienation effected by the mother, acting as the guardian of her minor children, under Exhibit A-2 is totally void; Hence, the question whether that alienation was for the benefit of the minors or justified by necessity does not arise at all Consequently, my conclusion on the first point is that the alienation under Exhibit A-2 effected by the sixth respondent acting as the guardian of her minor children, is wholly void, and, therefore, is not binding on the minor children, this is also the view taken by this Court in Rajalakskmi v. Rmachandran : AIR1967Mad113
8. The learned Counsel for the appellants sought to advance an argument that the properties which the respondents acquired under Exhibuit A-1 were the joint-family properties of Chinna Gopal Naidu and his children, and, therefore, with reference to the joint family properties, the father, even under Section 6 of the Hindu Minority and Guardianship Act, 1956, cannot be said to be the natural guardian. In my opinion, this argument does not befp the case of the appellants to any extent whatever. In the first place, there is absolutely nothing to show in Exhibit A-1 that the suit properties were treated as the joint family properties and they were retained as the joint family properties. I have already referred to the fact that Exhibit A-1 has been styled only as a re-leass deed and has been executed by 6th respondent on her behalf and on behalf ofher minor children and under thatdocu-ment they became the owners of the suit properties. Even if it is assumed that Exhibit A-1 is really a deed of partition and under that partition the ancestral properties of Chinna Gopal Naidu were partitioned, it passes one's comprehension, as to how the 6th respondert, the wife of Chinna Gopal Naidu and the 5th and 8th respondents, their daughters would be, entitled to have shares in joint family properties, as they were actually given in thei present case. This too sjjiows that the suit properties cannot be treated as joint family properties, and that too of the 6th respondent and her sons and daughters. Secondly assuming th at the suit properties were the joint family properties of the children of the sixth respondent herein through Chinna Gopal Naidu, still the sixth respondent has no power to alienate' the said properties. Section 11 of the Act which I have already extracted abrogates the power of the dejactqguardian to deal with any property of a minor, whether it is an undivided interest in a joint family property or not. Unlike Sections 6 and 9, which while referring1 to the 'minor's property' expressly state ''excluding his or her undivided interest in, joint family property 'and' other than the undivided interest referred to in Section 12 'respectively, Section 11 does not exclude any such undivided interest of a minor in the joint family property from its scope and therefore the incompetency of a defacto guardian to deal with a minor's property extends to all the properties of a minor without any exception, Therefore, this argument is not of any avail to the appellants herein.
9. The second point relates to the question of limitation. A point seems to have been urged before the trial Court that the fourth defendant in the suit, viz., seventh respondent herein, had attained majority and, he had not filed the suit within three years from the d ate of his attaining majority, and consequently, under Sections 7 and 8 of the Limitation Act, 1963, the entire suit is barred by limitation. Even assuming that the seventh respondent herein had attained majority and had not filed the suit within the period of three years subsequent to the date of his attaining majority, still that fact would not in any way help the appellants herein. I have alteady referred to the fact that the alienation under Exhibit A-2 is totally void, and if it is so void, it is open to the respondents 1 to 5 herein, to ignore the alienation and to sue for partition and separate possession of their shares straightaway without seeking cancellation of that alienation: Under such circumstances, where the alienation is totally void' and the respondents 1 to 5 herein are seeking recovery of possession of the properties from the hands of the alienee and partition there ofi the period of limitation applicable is twelve years, and not three year?. In this case, Exhibit A-2 is dated 22nd August, 1957 and the suit has been'instituted in 1967, i.e., even before the expiry of the period of limitation prescribed therefor, and consequently, the question of reliance on Section 7 or Section 8 of the Limitation Act, 1963, does 'not arise' It appears that the argument was advanced on the basis of a misapprehension that the period of limitation available to the parties in the present case was only three years, and not twelve years. Therefore, my conclusion on the second point is that the suit is not barred by limitation.
10. As far as the third point is concerned, I am clearly of the opinion that the appellants are not entitled to any relief by way of improvements. I may straightway mention in this context that even before the suit was instituted, under Exhibit A-3, dated 22nd April, 1961, the seventh respondent herein on his behalf as well as on behalf of his minor brothers issued a notice to the appellants and to his mother, the sixth respondent, challenging the alienation and claiming share in the properties. Exhibit A-4, dated 26th May, 1961 is a reply notice sent by the counsel for the appellants herein to the aid Exhibit A-3. In this reply notice, there was no whisper about any improvements effected by either the first appellant or the second appellant. The written statement was filed by the second appellant only and it was adopted by the first appellant. In this written statement, the second appellant claims to have spent only a sum of Rs. 7,800. According to him, he spent a huge cost of nearly Rs 2,000 and more for deepening and broader, ing the well in Inam Section No. 32 and had also borrowed a sum of Rs. 1,750 on 15th October, 1961 by executing a promissory note in favou r of one Papanoor Papanna Goundan for that purpose and the amount due on the Said promissory note was still outstanding. He further stated in the written statement that in respect of Inam Section No; 33, the old well was deepened and broadened and an electric motor and pumpset were installed at a considerable cost. According to the second appellant, he and his wife have not only borrowed Rs. 3,000 on 3rd January, 1959 by executing a promise sory note in favour of one K.G. Balaraman of Jalarpet for the above purpose, but had also taken a loan of Rs. 1,300 from the; Government for purchasing a pumpsetj The further case of the second appellant was that he had also dug a new well in S. No. 33, in or about the year 1964, and had also spent a sum of about Rs. 1,500' for the said purpose. Thus, the total amount representing the value of the, improvements effected by the second, appellant as claimed, was Rs. 7,800, made; up of Rs. 2,000 for the well in Inam Section No. 32, Rs. 3,000 for the well in S. No. 33, Rs. 1,300 for a pumpset, and Rs. 1,500 for a new well.
11. In the course of the trial, this sum of Rs. 7,800 multiplied itself to Rs. 15,500. This sum of Rs. 15,500 was said to be made up of Rs. 5,000 for reclamation of the lands, Rs. 2,000 for repairing the well in S. No. 33, another Rs. 2,000 for the said well in S. No. 33, Rs. 2,000 for digging a new well, Rs. 1,500 for installing a pumpset and Rs. 3,000 for deepening and broads ening the well in S. No. 32. Even though the total of these amounts would come to Rs. 15,500, still the second appellant claimed that he had spent a sum of Rs. 17,500. He himself admitted in the course of his evidence that he had not maintained any accounts whatever for the above expenses. According to the first appellant as D.W. 1, the total value of the improvements was Rs. 10,000. Apart from the fact in the reply notice Exhibit A-3 there was no whisper about any improvements having been effected in the lands and in the written statement only a sum of Rs. 7,800 was claimed atid in the course of the trial a sum of Rs. 10,000 was claimed by P.W. 1, Rs. 15,500 (Rs. 17,500) has been claimed by D.W. 5 which itself will clearly show that the case of the appellants herein cannot be true. There are other factors which also will negative the case of the appellants. In the first place, in the written statement, there is no claim whatever that the appellants had spent any amount for reclaiming the lands and it. is only for the first time in the course of the trial, the second appellant (D.W. 5) put forward the case that he spent Rs. 5,000 for reclaiming the lands in question. He admitted that even for that, he had no accounts to show that the said sum of Rs. 5,000 was spent for reclamation. Therefore, the claim of the appellants in this behalf is not true.
12. As far as the claim for having spent money for repairing the well in Inam Section No. 33 is concerned, it is the admitted case of the appellants themselves that notwithstandin g the alleged amounts spent by them in repairing, the well was in disuse and the well could not be used without spending a further sum of Rs. 3,000. Therefore even on the date when the second appellant gave evidence, the wall in S. No. 33 was not in use and therefore there is no question of the respondents being called upon to pay the value of the improvements in respect of the well in question.
13. As far as the well in S. No. 32 is concerned, I have alrady referred to the fact, that in the written statement he claimed to have spent only a sum of Rs. 2,000. But. in the course of the evidence, that sum of Rs. 2,000 got itself multiplied to Rs. 3,000. In support of the case that he spent a sum of Rs. 2,000 for deepening the well in S. No. 32, the second appellant claimed to have executed a promissory note for Rs. 2,000 under Exhibit B-4, d ated 15th October, 1961 in favour of D.W. 4. D.W. 4, was examined for the purpose of proving the same. There are one or two circumstances which will make it clear that no reliance can be placed on Exhibit B-4 or the evidence of D.W. 4 and the case of the appellants based thereon. It is admitted that D.W. 4 is a distant relative of the appellants. Secondly, this amount is said to have been borrowed under a promissory note d ated 15th October, 1961. I have asfteady referred to the fact that the fourth defendant in the suit viz seventh respondent, had given notice under Exhibit A-3, dated 22nd April, 1961 and this improvement for the well in S. No. 32 is supposed to have been made within six months from the d ate of that notice. Even if Such expense was incurred the view of the fact that it was done after the notice, it cannot be said to be a borta fide improvement effected by the appellants herein. The third circumstance to be taken into account is that though this promissory note is dated 15th October, 1961 (which has been marked as Exhibit B-4), it was said to be outstanding even on the date when D.W. 4 gave evidence viz., 22nd November, 1971. On the face of it, such a case cannot be accepted. Therefore, the appellants herein would not be entitled to any amount by way of the alleged improvements said to have been effected in respect of the well in Survey No. 32.
14. The next question is with regard to the new well said to have been constructed by the second appellant herein. In his written statement, he stated that the said new well was constructed in 1964. But in the course of the evidence, it was admitted that the said well was constructed after the suit in 1968, and therefore, with reference to any amount alleged to have been spent for the digging up of the new well, the appellants herein would not be entitled to claim any amount from the respondents herein.
15. That leaves out the last question with regard to the value of the pumpset. As the learned trial Judge himself rightly poined out, the respondents 1 to 5 in their plaint had not claimed anu share in the pumpset and it is certainly open to the appellants herein to remove the pumpset which they are alleged to have fixed up. Under these circumstances, the appellants fail on all the three points.
16. I may point out only one other matter in this behalf. Though respondents 1 to 5 claimed 5/7th share in the suit, the learned Subordinate Judge has held that the drespondents 1 to 5 are entitled to 5/8th share in the suit. The learned Suborndinate Judge has held that the respondents 1 to 5 are entitled to 5/8th share only. The learned trial Judge held that under Exhibit A-1 it is not only the children of the propreties, but the, sixth respondent also was entitled to and interest in the properties, and, therefore, all the eight presons are kentitled to one kshare each and the respondents 1 to 5 are entitled to 5/8th share. Even while granting a decree for 5/8th share in favour of the respondents 1 to 5, he has made it conditioal upon the respondents 1 to 5 herein paying 5/8th of the consideration under exhibit A-2. It is doubtful whether the appellants would be entitled to that amount at all. But, since the respondents 1 to 5 herein have not preferred any memorandum of cross-objections or cross-appeal, it is not necessary to consider this question futher.
17. Under these circumatances, the appeal fails and it is dismissed with costs of the respondents 1 to 5.