M.M. Ismail, J.
1. The plaintiff in O.S. No. 94 of 1963 on the file of the Court of the Subordinate Judge of Cuddalore is the appellant herein. One Govindaraja Goundar had three sons by name Bhoovarahaswami, Dhanapal and Janardhana. Dhanapal died in 1944 leaving behind his widow the third defendant, and two sons, fourth defendant and the plaintiff. Janardhana also died leaving behind his widow the 5th defendant, as well as the only son, the sixth defendant in the suit. Bhoovarahaswami sold the suit properties under Exhibit B-1 dated 27th January, 1945 to one Natesa Iyer for Rs. 19,000. That deed was executed by Bhoovarahaswami for himself, as father and guardian of his son, the second defendant, and as guardian of his nephews, the fourth defendant, the plaintiff and the sixth defendant, who were all minors on the date of Exhibit B-1. After this the third defendant as the next friend of the plaintiff and the fourth defendant instituted O.S. No. 81 of 1950 on the file of the District Court, South Arcot, for partition of the family properties. The plaint in that suit showed the suit properties in the present suit as 'F' schedule. A certified copy of that plaint has been marked as Exhibit B-2 in these proceedings. After a preliminary decree, final decree was passed as evidenced by Exhibit B-3 dated 2nd February, 1953. This final decree did not deal with the suit properties at all, while the other properties were divided and allotted to the respective branches. The family properties were allotted to different branches and as far as Dhanapals branch is concerned, the allotment was made jointly in favour of the plaintiff as well as the fourth defendant in the present suit. It was thereafter that the present suit was instituted for partition and separate possession of the appellant's one-sixth share in the suit properties after setting aside the sale deed dated 27th January, 1945. as not binding on his one-sixth share in the properties comprised therein and for recovery of mesne profits. His case was that there was no justifiable necessity, pressure or danger on the estate which warranted or justified the alienation; that there were no debts which demanded immediate settlement or discharge; that the executant of the document namely the senior paternal uncle of the appellant had acted to the detriment and prejudice of the junior members of the family, particularly the sons of the deceased brothers; and that therefore the sale was not justified. His further case was that any consideration that might have been received by Bhoovarahaswami was for his own independent and personal use and the alienation cannot bind the junior members of the family inclusive of the appellant. According to the appellant, the claimant under the document, namely Natesa Iyer had knowledge of the existence of the junior members, particularly the appellant, and had knowledge that the transfer was not for any legal necessity. With regard to limitation, the appellant has stated in the plaint itself that he was born on 31st August, 1941, as evidenced by the extract from the Registrar of Births and Deaths maintained by the Villupuram Municipality and the suit was instituted within three years of the date of his attaining majority and that therefore the suit is in time under Article 44 of the Indian Limitation Act, though the alienation was in 1945.
2. The alienee under Exhibit B-1 having died, his widow and children were impleaded as parties to the suit. Their case was that the alienation was binding on all the members of the coparcenary and in particular on the appellant and that in any event the suit was barred by limitation. They also put forward a case that the appellant ought to have insisted upon partition of the suit properties in O.S. No. 81 of 1950 itself, after impleading the alienee as a party and the appellant not having done so, the right of the alienee under Exhibit B-1 to have the suit properties allotted to the share of Bhoovarahaswami in a general partition of all the properties had been taken away and that consequently the appellant was not entitled to institute the present suit for partition. They also contended that the suit was also barred under Order 2, Rule 2 of the Code of Civil Procedure.
3. On these pleadings, the trial Court framed the following issues:
1. Whether the sale deed dated 27th January, 1945 was for purposes binding on the minor plaintiff ?
2. Whether the plaintiff's claim is in time ?
3. Whether the suit is barred under Order 2, Rule 2 of the Code of Civil Procedure ?
4. Whether the suit is not maintainable and whether the plaintiff is not entitled to any relief, for all or any of the reasons set forth in para. 7 of 7th defendant's written statement
5. Whether the 7th defendant's husband has effected any improvements and if so what amount is due to him therefor ?
6. Whether the defendants 2, 5 and 6 are not necessary parties to the suit ?
7. To what relief, if any, are parties entitled ?
The following additional issues were framed on 7th January, 1965:
8. Whether the will set up by the 13th defendant is true, valid and executed in a sound disposing state of mind ?
9. Whether the suit is in time.?
4. It may be mentioned in this context that the 13th defendant claimed to be an executor appointed under a will said to have been executed by the deceased Natesa Iyer on 23rd September, 1941. It is this claim which necessitated the framing of the additional issue, namely, issue No. 8. However, before the trial Court, both the defendants 7 and 15 filed a joint memo, on 4th March, 1966 stating that the truth and validity of the will propounded by the 13th defendant could be decided in the suit filed by the 7th defendant against the 13th defendant and others and need not be gone into in this suit and that both of them would jointly contest the present suit. Consequently, the issue regarding the alleged will said to have been executed by Natesa Iyer was not gone into in the present suit. With regard to the other issues, the learned Principal Subordinate Judge held that the sale deed, Exhibit B-1 was fully supported by consideration. However, his conclusion was that the properties had been undervalued and that the sale itself was not binding on the joint family. But on the technical grounds raised by the defendants in the suit, the learned Principal Subordinate Judge agreed with the contentions of the defendants, namely, that the suit was barred by limitation as well as under Order 2, Rule 2, Code of Civil Procedure. It is in this view that the trial Court dismissed the suit. Hence, the present appeal by the plaintiff in the suit.
5. The only points that were argued before us by the learned Counsel for the appellant were the question of limitation as well as the finding of the trial Court that the suit was barred under Order, 2, Rule 2, Code of Civil Procedure, and the failure of the appellant to include the suit properties in O.S. No. 81 of 1950 after impleading the alienees as a party and have them partitioned in that suit itself. In view of the conclusion we have come to on the question of limitation, it is unnecessary for us to consider the maintainability of the suit on the o her grounds contended for by the defendants and accepted by the trial Court.
6. As far as the question of limitation is concerned, Mr. D. Ramaswami Iyengar, learned Counsel for the appellant, contended that the suit was not barred by limitation, in view of the fact that the alienation under Exhibit B-1, was void and therefore could be ignored and that consequently the appellant was entitled to institute a suit straightaway for partition of the properties. As against this case of the appellant, the case of Mr. M. R. Narayanaswami, learned Counsel for the contesting respondent, is that an alienation by a manager of a joint family which is not justified by necessity is only voidable and continues to be valid till it is repudiated and set aside and therefore the appellant is bound to sue for setting aside Exhibit B-1, and if so, since the appellant's elder brother, namely, the fourth defendant, who had already attained majority, had not taken any steps to have the alienation set aside and the properties recovered, the present suit is barred by limitation having regard to Section 7 of the Limitation Act. Mr. Ramaswami Iyengar, countered this contention of Mr. M. R. Narayanaswami, by putting forward an argument that such a sale deed is totally void and not voidable and therefore it need not be set aside and can be simply ignored by a person like the appellant; that consequently Section 7 of the Limitation Act is not attracted and that therefore the suit is not barred by limitation.
7. We may mention that the plaintiff-appellant himself has relied on Article 44 of Schedule I to the Limitation Act, 1908, in his plaint and contended that since he instituted the suit on 29th August, 1962, that is, within the period of three years of his attaining majority, the suit is within the period of limitation. The plaint also valued the suit as if it is one for cancellation of the document, Exhibit B-1, to the extent of the appellant's one-sixth share in the properties in question and also prayed for setting aside and cancelling the said document, Exhibit B-1, if it was necessary. However, Mr. Ramaswami Iyengar, contended that notwithstanding this stand taken by the appellant in his plaint, the appellant is entitled to argue that it is not necessary for him to sue for setting aside the sale and therefore he could ignore the sale and institute a suit straightaway for partition. It is not necessary for the purpose of this appeal to decide this controversy, in view of the conclusion we have come to on the application of Section 7 of the Limitation Act. Equally it is not necessary for the disposal of this case to go into the controversy whether the alienation, Exhibit B-1, executed by Bhoovarahaswami was only void or voidable.
8. In Kandasami Asari v. Somaskanda Ela Nidhi Ltd., through its Secretaries, Chidambaram Chettiar and Anr. I.L.R. (1912) Mad. 177 : 20 M.L.J. 371 : 5 I.C. 922, a Bench of this Court (Benson and Krishnaswami Ayyar, JJ.) has held that an alienation by a manager without justifiable necessity is void as regards the shares of the other members of the. family and where such necessity exists, it is valid in its entirety.
9. In Subba Goundan and Anr. v. Krishnamachari and Ors. I.L.R. (1922) Mad. 449 : 42 M.L.J. 372 : A.I.R. 1922 Mad. 112, another Bench of this Court (Kumaraswami Sastri and Devadoss, JJ.) held:
In the case of sales by a father or managing member of the joint family for alleged necessity, we think the sale will be good till avoided, as it is open to the other coparceners to affirm the transaction. The position of such a purchaser cannot be worse than that of a purchaser from a widow without legal necessity, in whose case it has been held that the sale is good till repudiated by the reversioners. We respectfully dissent from the view taken by Krishnaswami Ayyar, J., in Kandasami Asari v. Somaskanda Ela Nidhi, Ltd. I.L.R. (1912) Mad. 177 : 20 M.L.J. 371 : 5 I.C. 922, that a sale without necessity is incapable of ratification by the other co-parceners.
In Amirthalinga Thevan v. Arumuga Ambalagaran and Ors. : AIR1928Mad986 , another Bench of this Court (Ramesam and Thiruvenkatachariar, JJ.) adopted as correct the following observations of this Court in Kandasami Asari v. Somaskanda Ela Nidhi Ltd., through its Secretaries, Chidambaram Chettiar and Anr. (1912) I.L.R. 35 Mad. 177 : 20 M.L.J. 371 : 5 I.C. 922,
It has invariably been accepted as a sound canon of the Hindu Law that where the alienation is not for justifiable necessity it is void as regards the shares of the other members of the family and where such necessity exists it is valid in its entirety. It has never been suggested that the alienation by the manager is only voidable where it is not for justifiable necessity.
Having expressed their agreement with the above statement of law, the Bench proceeded to explain away the decision of the other Bench of this Court in Subba Goundan and Anr. v. Krishnamachari and Ors. I.L.R. (1922) 45 Mad. 449 : 42 M.L.J. 372 : A.I.R. 1922 Mad. 112. After extracting the above passage, the Bench stated:
If I understand aright it is not this proposition in Kandasami Asari v. Somaskanda Ela Nidhi Ltd. I.L.R. (1912) Mad. 177 : 20 M.L.J. 371 : 5 I.C. 922 that the learned Judges in Subba Goundan v. Krishnamachari I.L.R. (1922) 45 Mad. 449 : 42 M.L.J. 372 : A.I.R. 1922 Mad. 112., dissent from but a different proposition viz., that a sale, without necessity is incapable of ratification by the other co-parceners. On that question it may be observed that though such an alienation is void at the outset, it is still open to the other coparceners to validate it by their ratification if they are competent to do so.
We may, with respect, point out that the learned Judges have really dissented from the decision of the Bench in Subba Goundan and Anr. v. Krishnamachari and Ors. I.L.R. (1922) Mad. 449 : 42 M.L.J. 372 : A.I.R. 1922 Mad. 112, though they purported to explain away that decision. It is impossible to understand as to how a transaction which is void at the outset could be ratified at all or could be treated as good and valid by others. Therefore, in substance, when the Bench in this case agreed with the statement of the law contained in Kandasami Asari v. Somaskanda Ela Nidh Ltd., through its Secretaries, Chidambaram Chittiar and Anr. I.L.R. (1912) Mad. 177 : 20 M.L.J. 371 : 5 I.C. 922, they really dissented from the view taken by the other Bench in Subba Goundan and Anr. v. Krishnamachari and Ors. I.L.R. (1922) Mad. 449 : 42 M.L.J. 372 : A.I.R. 1922 Mad. 112.
10. As if this is not enough, another Bench of this Court (Majdhavan Nair and Stone, JJ.) which had to consider the matter in Maddali Visweswara Rao v. Maddala Surya Rao and Ors. : AIR1936Mad440 , expressed its agreement with the statement of the law laid down by the Bench of this Court in Subba Goundan and Anr. v. Krishnamachari and Ors. I.L.R. (1922) Mad. 449 : 42 M.L.J. 372 : A.I.R. 1922 Mad. 112. After referring to the case in Amirthalinga Thevan v. Arumugha Ambalagaran : AIR1928Mad986 the learned Judges pointed out that they could not understand how a void transaction may be either practically treated as good or treated as practically good and found it difficult to see how a wholly void transaction may be ratified. They observed that of the differing views, they preferred the view expressed in Subba Goundan and Anr. v. Krishnamachari and Ors. I.L.R. (1922) Mad. 449 : 42 M.L.J. 372 : A.I.R. 1922 Mad. 112. It is unfortunate that none of the Benches which happened to consider the question after the decision of this Court in Kandasami Asari v. Somaskanda Ela Ndhi Ltd. through its Secretaries, Chidambaram Chettiar and Anr. I.L.R. (1912) Mad. 177 : 20 M.L.J. 371 : 5 I.C. 922, thought it fit to refer the matter to a Full Bench, when they themselves did not agree with the proposition of law laid down in that decision. If it was necessary for us to decide this question in the present appeal, we would have referred the matter to a Full Bench, in view of the conflict that exists between the Bench decisions referred to above, two of them taking one view and two others taking a totally contrary view. For the reasons which we would indicate hereafter, it is not necessary for the disposal of this appeal to decide this controversy, namely, whether the alienation effected by a manager of a joint family which is not warranted or justified by necessity or benefit is wholly void so that it cannot be ratified and it can be ignored by the other coparceners of the family or is voidable so that it is binding till it is actually repudiated and got set aside by the other coparceners of the family. However, Mr. M. R. Narayanaswami, contends that the decision of the Supreme Court in Raghubaachmini Prasad Narain Singh v. Ambica Prasad Singh (dead) by his legal representatives and Ors. : 1971CriLJ654 , concludes the matter in favour of the view taken by this Court in Subba Goundan and Anr. v. Krishnamachari and Ors. I.L.R. (1922) Mad. 449 : 42 M.L.J. 372 : A.I.R. 1922 Mad. 112, and in Maddali Visweswara Rao v. Maddala Surya Rao and Ors. : AIR1936Mad440 . On the other hand, Mr. D. Ramaswami Iyengar, contends that the very same judgment holds that a coparcener who claims that an alienation is not binding on him could straightaway sue for partition without seeking to set aside the alienation. The passage in the judgment of the Supreme Court on which reliance has been placed by both sides in this manner--Mr. M. R. Narayanaswami, relying on the first sentence and Mr. D. Ramaswami Iyengar,, relying on the penultimate sentence referring to an action for partition is as follows:
In any event an alienation by the manager of the joint Hindu family ' even without legal necessity is voidable and not void. On the findings of the trial Court and confirmed by the High Court, respondents 1 and 2 were in possession of the land, since the year 1936. The appellant forcibly deprived respondents 1 and 2 of possession of the land. In the circumstances respondents i and 2 were entitled to be restored to possession of the land, unless the appellant in an action for partition of the joint family established his claim to the land in dispute. No such attempt was made by the appellant.
Here again, we may point out that though the Supreme Court holds that the alienation is only voidable and not void still it had no occasion to consider the question whether the said alienation should be set aside or not or it can be simply ignored. However, for the reasons we have indicated above, namely, that it is not necessary for us to decide the said question in this case, we are not saying anything further on this also.
11. The Grucial question for consideration is, whether the. suit in this case is really barred by limitation or not. For the sake of argument, we are prepared to assume the contention of Mr. D. Ramaswami Iyengar, that the transaction under Exhibit B-1 is a void transaction and not voidable and therefore the appellant is-entitled to ignore the same. However, Mr. D. Ramaswami Iyengar, having put forward the contention that it is not Article 44 of Schedule I to the Limitation Act, 1908, that is really applicable to the case conceded that Article 126 also is not applicable to the case and it is only Article 144 that will be applicable to the present case. It may be pointed out that Article 44 deals with a suit by a ward who-has attained majority, to set aside a transfer of property made by his guardian. Article 126 deals with a suit by a Hindu governed by the law of Mitakshara to set aside his father's alienation of ancestral property. Articles 44 and 126 have dealt with specific cases of alienation by a guardian of a ward and alienation by a father governed by the law of Mitakshara. But there is no specific article dealing with an alienation made by a manager of a joint family. It is in view of this alone, Mr. Ramaswami Iyengar,, contends that it is Article 144 which deals with a suit for possession of immovable property or any interest therein not otherwise specifically provided for, which will apply to this case, and that in that event the period of limitation is 12 years from the time when the possession of the defendant becomes adverse to the plaintiff. We are prepared to assume the correctness of this contention as well for the disposal of this appeal. If the argument of Mr. Ramaswami Iyengar, is accepted, it will automatically follow that since according to him, the alienation under Exhibit B-1, is a void one, from the moment the vendee took possession of the properties, the possession was adverse to the joint family. In this case, admittedly under Exhibit B-1, the vendee took possession of the properties on the date of the sale deed. If so, the adverse possession commenced from 1945, itself.
12. The next question for consideration is, what exactly is the time available for the appellant to institute a suit to obtain the relief he has prayed for. As we have pointed out already, the suit has been instituted originally in the form of an original petition on 29th August, 1962. The appellant having been born on 31st August, 1941, certainly the suit was instituted within the period of three years from the date of his attaining majority. Mr. M.R. Narayanaswami, contends that even though the suit may be within time, so far as the appellant is concerned, because of the failure of the fourth defendant, elder brother of the appellant, who was the manager of the family consisting of himself and the appellant, to take proceedings within the period of limitation available to him, the suit is barred by Section 7 of the Limitation Act, even with reference to the present appellant. In support of this contention Mr. Narayanaswami, relied on a Full Bench decision of this Court in Doraiswami Serumadan and Anr. v. Nondisami Saluvan and four Ors. I.L.R. (1915) Mad. 118 : 95 M.L.J. 405, and a decision of a Bench of this Court in Subramanyam v. Venkataraman and Ors. : AIR1972Mad3 , which followed the Full Bench decision referred to above and the decision of Srinivasan, J., in Matarajan and Anr. v. Karumana Gounder and Ors. : (1963)1MLJ81 In the Full Bench decision referred to above, two brothers who were members of an undivided Hindu family instituted a suit to recover certain properties which were alienated by their mother and natural guardian in favour of a third party. This Court has held that according to Sections 7 and 8 and Article 44 of the Limitation Act, a suit brought by two brothers of an undivided Hindu family to set aside an alienation by their guardian, more than three years after the elder attained majority is barred by limitation not only as regards the elder brother's share but also in respect of the younger brother's though the latter attained his majority within three years prior to the institution of the suit. The Bench decision referred to above simply followed the Full Bench decision and the Bench also dealt with a case where the alienation was effected by the mother as guardian of her minor son. It is the judgment of Srinivasan, J., which dealt with a case where a father alienated the property and the son instituted a suit for setting aside the alienation and for partition of the property. Srinivasan, J., after an elaborate consideration of the matter, came to the conclusion that on the elder brother of the plaintiff, who was the manager of the family, failing to take action within the period of limitation provided for, the property itself was lost to the family and the suit was barred as against the younger brother whose suit independently was within the period of limitation. With reference to the facts of this case, as we have pointed out already O.S. No. 81 of 1950 was instituted by the third defendant on behalf of the fourth defendant and the plaintiff for partition and separate possession of the share of their branch in the suit properties. But there was no partition inter se between the plaintiff and the fourth defendant in O.S. No. 81 of 1950, and Exhibit B-3. clearly shows that the properties were allotted to the branch as a whole, represented by the fourth defendant and the plaintiff. Apart from this, in the evidence, the plaintiff-appellant admitted that he and the fourth defendant were members of a joint family and his elder brother was enjoying the properties allotted at the partition in O.S. No. 81 of 1950 and himself, his brother and his mother were living in Villupurm jointly. Consequently it can be certainly held that it was the fourth defendant, who was the manager of the joint family, the moment he attained majority. It is admitted that the fourth defendant had not instituted the suit within the period of limitation either for setting aside the alienation and recovering possession of the property or ignoring the alienation and seeking to recover possession of the property.
13. The only argument of Mr. Ramaswami Iyengar, is that in all the three decisions referred to above, Section 7 of the Limitation Act was applied, where a. suit for setting aside an alienation was necessary and therefore where a suit for setting aside an alienation is not necessary, as in the present case, on the basis that Exhibit B-1, alienation was totally void, Section 7 has no application. In view of the decision of the Supreme Court in Sarda Prasad and Ors. v. Lola Jumna Prasad and Ors. : 3SCR875 we are of the opinion that this argument is not open to the appellant herein. In that case, the suit for partition was filed by two brothers Jumna Prasad and Devi Prasad and two minor sons of Jumna Piasad against Gajju Lal, his son Jawala Prasad, the four minor sons of Jawala Prasad, namely, Sharda Prasad, Dharm Pal, Ram Pal and Krishna Pal, and one Smt. Sundari. A decree for partition was passed on 2nd September, 1938. An application for execution was made by the four brothers, Sharda Prasad, Dharam Pal, and Ram Pal and Krishna Pal on 23rd November, 1949. The prayer in that application was that the applicants may be delivered possession over the Ftawa Bazaar house along with Gajju Lal, Jawala Prasad and Smt. Sundari on dispossession of Jumna Prasad and Devi Prasad, since that property was allotted to their share by the partition decree, dated 2nd September, 1938 By -way of contending that the application was in time, it was stated in the application that all the applicants had till then been minors and one of them was still a minor and so no question in respect of time arose. The respondents to the application put forward a number of objections the - principal of which was that Jawala Prasad, one of the persons entitled jointly with the applicants to make an application for the execution of the decree could have given a discharge of the liability under the decree without the concurrence of his minor sons and so time ran under Section 7 of the Limitation Act against them also from the date of the decree and consequently Jawala Prasad admittedly not having filed an execution application for recovery of possession within time, the application was barred by limitation against the applicants also. That plea was accepted by the High Court and the Supreme Court confirmed that conclusion. Dealing with the question as to whether Section 7 applies or not, the Supreme Court pointed out:
The mere fact that the two illustrations to Section 7 are in respect of debts is no ground for thinking that the provisions of Section 7- are limited to suits or decrees on monetary claims only. Nor can we see any reason to think that the word 'discharge' can refer only to debts. Discharge means, to free from liability. The liability may be in respect of monetary claims, like debts; it may be in respect of possession of property; it may be in respect of taking some order as regards property; it may be in respect of many other matters. Except in the case of declaratory decrees or decrees of a similar nature, the decree in favour of one person against another requires the person against whom the decree is made liable to do something or to refrain from doing something.
This liability is in a sense a debt which the party is in law bound to discharge.
It is on this construction of Section 7, the Supreme Court held that since the execution petition by Jawala Prasad became barred, by limitation, no petition could have been preferred by his sons, namely, the applicants in that case. Consequently, even assuming that Article 144 of Schedule I to the Limitation Act, 1908, applies to the present case, we are of the opinion that as manager of the joint family consisting of himself and the appellant, the fourth defendant should have instituted the suit within a period of three years of his attaining majority, as provided for in Section 8 of the Limitation Act, since adverse possession commenced from the date of Exhibit B-1, and he having failed to do so, the suit is barred by limitation, even with reference to the present appellant. We may repeat that under the decree in O.S. No. 81 of 1950, there was no severance or partition inter se between the fourth defendant and the plaintiff appellant and they continued to constitute a Hindu undivided family and the failure of the fourth defendant as the manager of the joint family to take action within the period of three years of his attaining majority will have the effect of extinguishing the title of the joint family itself. Once that title is extinguished, there is absolutely no question of the present appellant instituting a suit for partition of the very same properties and recovery of his share as if those properties still continued to belong to the joint family.
14. Under these circumstances, we agree with the conclusion of the trial Court that the suit is barred by limitation and consequently dismiss the appeal. There will be no order as to costs.