V.V. Raghavan, J.
1. Defendants 3 and 4 are the appellants. The suit is for recovery of possession of the plaintiffs' 8/10th shares in the suit properties. The plaintiffs' case is as follows:
2. Plaintiffs 1 to 3 are the sons and daughter of defendants 1 and 2. The first plaintiff was born on 27th December, 1946, the second plaintiff on 2nd January, 1954 and the third plaintiff on 12th March, 1961. Originally the suit properties belonged to the joint family of the first plaintiff and the first defendant. The case of the plaintiffs is that the annual income from the family properties including the suit properties was between Rs. 15,000 and Rs. 20,000 that there was no need for the father viz., the first defendant to alienate any of the family properties, that the first defendant took to immoral ways and squandered away the properties and that in order to protect the interest of the first plaintiff, who was then a minor and other children to be born, the first plaintiff's maternal uncle on behalf of the minor first plaintiff demanded partition of the family properties in 1956, that the first defendant acceded to the demand, that he partitioned the family properties under a document purporting to be a gift deed in favour of the first plaintiff on 5th December, 1956 (Exhibit A-l) that the first plaintiff has been in possession and enjoyment of that half share in the properties ever since, that after the said partition the first defendant executed a settlement deed a few days thereafter viz., 22nd December, 1956 (Exhibit A-2) in respect of the other half share of the family properties that as per the said settlement deed the properties are to devolve on the first plaintiff and the children of defendants 1 and 2 to be born thereafter retaining in favour of defendants 1 and 2 a life interest in the said properties with no rights of alienation, that the said properties were managed by the second defendant and the first defendant compelled the second defendant to alienate some of the properties not for any legal necessity, that the alienation in favour of the third defendant on 1st July, 1964 (Exhibit B-5 ) executed by defendants 1 and 2 is not valid and binding on the plaintiffs and that it is void. The present suit is filed for recovery of possession, the first plaintiff claiming 5/10th share plus 1/10th and plaintiff's 2 and 3 each claiming 1/10th share in the suit properties. The further contention of the plaintiff's is that the alleged debts mentioned in the mortgage deeds are for immoral purposes, that the second defendant is not the legal guardian as per the Hindu Minority and Guardianship Act, that the above sale by the second defendant without obtaining Court's sanction is void and that the plaintiffs are entitled to ignore the said sale deed and claim a share in the suit property.
3. Defendants 1 and 2 remained ex parte. The third defendant filed a written statement contending that the yearly income from the suit properties belonging to the family is exaggerated that the allegation that the first defendant was leading an immoral life was false, that the first defendant had executed on othi over the suit property on 4th January, 1950 for Rs. 2,500 to one Ramaswami Konar, that the said othi was assigned in his favour on 20th March, 1953, that the first defendant in addition had executed a melothi over the suit property for Rs. 1,500 and for discharging the above two prior encumbrances the suit property was sold to him on 1st July, 1964 and that the said debts were discharged and the balance of Rs. 1,000 was given to defendants 1 and 2 to meet certain binding legal obligations. The further contention put forward by the third defendant was that the sale in his favour being for discharge of pre-partition debts is binding on the plaintiff's that he has improved the lands after his purchase and that on the date of the suit he had no interest in the suit properties, he having gifted the same in favour of his grandson, the fourth defendant and the plaintiffs are not entitled to a share in the suit property. The fourth defendant was impleaded as a party later on and the fourth defendant adopted the written statement of the third defendant and further filed an additional written statement contending that the gift deed dated 15th December, 1950 and the settlement deed dated 21st December, 1956 are void and invalid in law and that no interest could be created thereunder in favour of the plaintiffs and the second defendant and in any event the claim is barred by limitation.
4. The trial Court held that the gift deed (Exhibit A-1) effected a division in status between the first plaintiff and the first defendant. The trial Judge also held that under Exhibit A-2 the properties were given to the issues of defendants 1 and 2. The further finding of the learned Judge is that the sale in favour of the 5 third defendant is void, that the othi (Exhibit B-1) and the melothi (Exhibit B-4) are however valid and binding on the plaintiffs, that no improvements were effected by the third defendant after his purchase. In the result, a preliminary decree for partition was passed as prayed for and the plaintiffs held entitled to recover possession of their 8/10th share after redemption of the othi.
5. Defendants 3 and 4 filed A.S.No. 23 of 1970 in the Court of the Subordinate Judge, Tuticorin, and the learned Judge confirmed the decision of the trial Court and dismissed the appeal. The present Second Appeal has been filed against the said judgment.
6. The learned Counsel for the appellants (defendants 3 and 4) contends (1) that Exhibit A-1, which is a 'nonkodai pathiram' is void as it purports to create a gift of the joint family properties in favour of the first plaintiff and that the registered settlement deed Exhibit A-2 of respondent of the 1st defendant's half share is equally invalid for the same reason. (2) The further contention is that the registered sale deed, Exhibit B-5 in favour of the third defendant is valid and binding On the plaintiffs as the bulk of the consideration for the said deed went for the discharge of the pre-partition liabilities of the first defendant incurred under Exhibits B-1 and B-4.
7. Exhibit A-1 dated 15th December, 1956, purports to be a nonkodai pathiram (a gift deed). The recital therein is:
The schedule to the document gives the various survey numbers of the properties and in some of the items specified portions are directed to be taken by the donee. Referring to item 12 in the schedule relating to S. No. 816/A it is stated as follows:
Again referring to item 13 it is stated that the said item is given in its entirety to the donee. Though the document is termed 'a gift deed' there is, in fact, no gift of the joint family properties by the first defendant to the first plaintiff. In fact, the recital; extracted above shows that the father and son are the only persons who are entitled to the family ancestral properties and that what is done under the document is only to. specify the portion that the father proposes to allot to his son. There is in fact no gift to the son in excess of what he would be entitled to as a joint family member. The recital in the document clearly shows that the son has half share in the joint family properties and that the father intended to specify the said half share. There is a further recital in the document that the son is entitled to take his-share from the date of the document. Within about three months ' thereafter the settlement deed, Exhibit A-2, dated 21st December, 1956, came into existence. The recitals therein are consistent with the recitals in Exhibit A-1 and in respect of the other half share which fell to his share in Exhibit A-1 the settlement deed is effected. Under the settlement deed a life estate is carved out in favour of himself and his wife and the remainder settled on the first plaintiff and the sons to be born to him and his wife thereafter. The learned Counsel for the appellants, however, contends that the caption of the deed determines the nature of the document and as the father gifts the ancestral joint family property the gift deed, Exhibit A-1 is void and for the same reason Exhibit A-2 is also void. The learned Counsel referred to the judgment in Rithinasabapathi Pillai and Anr. v. Saraswathi Ammal : AIR1954Mad307 , for the proposition that the power of a Hindu father or other managing member to make a gift is limited and that it must be within reasonable limits if it relates to ancestral property. This pro-position is not and could not be disputed, But what is contended by the > learned Counsel for the respondents is that in terms of the document it is not a gift deed and that the terms are clear that the father intended to effect a partition between himself and his son. In fact, the recital in Exhibit A-2 is more specific and the father affirms that he had effected a partition between himself and his son under Exhibit A-I and that he is dealing with the property under the settlement deed in respect of the other half share that fell to him in that partition. I am, therefore, unable to accept the contention of the learned Counsel for the appellants
8. It was further contended by the learned Counsel for the appellants that the said document came into existence, at the instance of the maternal uncle of the first plaintiff to save the ancestral properties from being alienated for illegal or immoral purposes. In the absences of proof the Courts below rightly negatived this plea.
9. The learned Counsel sought to uphold the sale, Exhibit B-5, in his favour on the ground that out of the consideration Rs. 5,000, Rs. 4,000 went for the discharge of the prior antecedent debts on the basis of the mortgages, Exhibits B-1 and B-4. The othi deed Exhibit B-1, was executed in .1950 in favour of one Ramaswamy Konar. In 1953 the third defendant obtained an assignment of the othi deed under Exhibit B-1 executed in 1950, in favour of one Ramaswami Konar. In 1953, the third defendant obtained an assignment of the othi deed under Exhibit B-3 and he advanced further monies under Exhibit B-4 dated 22nd August, 1956, to the first defendant. The debts in question are othies and there is no evidence of any pressure from the creditor. On the date of the execution; of the sale deed, Exhibit B-5 dated 1st July, 1964, the first plaintiff was a minor and the second defendant, mother, purported to act as the guardian of the first plaintiff and the second and third plaintiffs without the permission of the Court taken under the Hindu Minority and Guardianship Act. The mother cannot act as guardian when the father is alive. Further it is seen that the mother acted as guardian for her minor sons and a daughter. That would emphasize the existence of the partition between the father and his eldest son viz., the first plaintiff as also the truth and validity of Exhibit A-2 under which alone respondents 2 to 5 have an interest in the property. It is clear that the third defendant-purchaser, was aware of the prior partition deed and settlement deed and the rights created in favour of the second plaintiff, a daughter and the second defendant, wife of the first defendant and it is not now open to him to contend that there is no partition or that Exhibits A-1 and A-2 are void. The second appellant is the grandson of the first appellant and he does not stand on any higher footing than the first appellant and the appellants are not entitled to plead that Exhibits A-1 and A-2 are void, as they were fully aware of the prior partition and the settlement deed and had acquiesced in the truth and validity of Exhibits A-1 and A-2. Apart from this I have already held that Exhibits A-1 and A-2 are valid documents. 10. In any view the prior debts amounting to Rs. 4,000 which were pre-partition 22 liabilities, are binding on the plaintiffs. I, therefore, agree with the decree passed by the trial Court as confirmed by the appellate Court that the plaintiffs will be entitled to recover possession of their 8/10th share in the suit properties subject to their redeeming the othies referred to above. In the result, the second appeal fails and is dismissed. There will be no order as to costs. No leave.
11. The present suit is one for partition in respect of a portion of joint family properties belonging to the plaintiffs and the first defendant and alienated in favour of the third defendant. The trial Court has decreed the plaintiffs' 8/10th share in the suit properties. The family possesses other properties as well. It is represented by the learned Counsel for the appellants that the equities could be worked out in a suit for general partition in respect of the properties of the family and that until such time, the decree in the suit, out of which the above second appeal has arisen should not be enforced. There is no need to make any order at this stage. The defendants are free to work out their rights according to law.