1. In this case the plaintiffs sued as Members of a Malabar tarwad on behalf of the tarwad for a declaration that a deed of gift, Exhibit I, executed by the third defendant, then kamavan of their tarwad and now dead, and by other members of the tarwad including the plaintiffs Nos. 1 to 5, in favour of defendants Nos. 1 and 2 is not valid and binding on the tarwad, and for the recovery of the property gifted and incidental reliefs. Plaintiffs Nos. 1 to 5 were then minors and in the deed of gift were represented by the third defendant as their guardian. The lower Courts both held that, at the time of the gift, the property belonged to the third defendant absolutely, and to none of the other donors and certainly not to the tarwad, and that, therefore, the plaintiffs are not entitled to question its validity on the ground that it was tarwad property. The plaintiffs appeal.
2. The first ground urged is that it was not open to the donees, defendants Nos. 1 and 2, to assert that none of the donors except the third defendant had any right to the property at the time of the gift, they having taken the property under the gift from all the ostensible donors, that they are thus estopped from asserting that some of those donors had no right to gift. I think that contention is sound. The case in Bijraj Nopani v. Pura Sundary Dasee A.I.R. 1914 P.C. 92 relied on by both the lower! Courts, has really no application. The question is not what rights the donors had inter se, but what rights the donees acknowledged they had by virtue of which the gift became operative to pass such rights to themselves. But this by no means disposes of the case. The lower Courts have clearly concurred in finding that the property at the time of the gift was not tarwad property. This is a finding of fact binding in second appeal. There is no recital in Exhibit AI which will estop the donees from relying on that finding. Exhibit I only recites that the property belongs in jenm to the donors and is in the possession of the third defendant. I am unable to hold that the mere recital that the property is jenm property of the donors leads to any presumption or inference in law, that the property was in the hands of the donors as tarwad property. I must accept the concurrent finding that the property was not tarwad property.
3. Now the plaint makes it quite clear that the plaintiffs are suing to recover this property as tarwad property for the tarwad; and their prayer is that the property should be decreed to them on behalf of their tarwad. It appears to me that this being so, the plaintiff's suit to recover this property on the footing that it was and is tarwad property cannot be maintained in view of the finding that it is not and was not tarwad property. It may be that plaintiffs Nos. 1 to 5, signatories to the document, had or have a cause of action to recover their shares of the property on the footing that their guardian, the third defendant, had no authority to give away their property, but that is not the frame of the present suit.
4. Since the deed of gift was in 1910, questions of limitation would obviously arise. These have incidentally been considered by the First Court but the lower Appellate Court has not thought it necessary to go into them; and it appears to me unnecessary to go into them here. If the plaintiffs were suing, as they are, as members of tarwad on behalf of the tar wad to set aside a gift by the tarwad of tarwad property it is clear that on the grounds set out in the First Court's judgment, they would he barred by limitation, Moidin Kutti v. Beevi Kutti Ummah (1895) 18 Mad. 38 since the document prima facie would bind the tarwad and could not, therefore, be treated as void ab initio, and since the adult members of the tarwad have not chosen to sue within time to set it aside. But if the plaintiffs were suing as individual persons, whose guardian, when they were minors, gifted away their property which gift is in law prima facie void, it would not be necessary for them to have the document formally set aside by decree. They could avoid it and sue on the footing of their title or possession or both. But that, unfortunately for them, is not their present suit. It is not a suit by minors to set aside a gift by their guardian, but a suit by the tarwad to set aside a gift of tarwad property. Different considerations would arise in such a suit and different issues would fall to be tried. I am not prepared to permit the plaintiffs to open such a case in this suit at this stage.
5. I, therefore, agree with the lower Court that the plaintiff's suit is not maintainable. The second appeal is dismissed with costs of first and second respondents.