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Gazzala Veerayya Minor by Mother and Next Friend, Narakka Vs. Gazzala Ganamma and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.839
AppellantGazzala Veerayya Minor by Mother and Next Friend, Narakka
RespondentGazzala Ganamma and anr.
Cases ReferredMullagudi Ratnam v. Mullagudi Ramayya
Excerpt:
limitation act (ix of 1908), section 6, schedule i, article 125 - hindu law--reversionary suit--limitation--son does not claim through father--minor reversioner--alienation by daughter--declaratory suit--invalidity of alienation. - .....net sue to set aside the alienation in dispute and that more than 12 years had elapsed from the date of alienation before this suit was brought.2. the alienation in question was made in 1896. the plaintiff was then a minor of tender years. his father was alive. the father died without questioning the alienation. the suit was instituted in 1909, more than 12 years after the date of the alienation. it is contended for the respondent that, under article 125 of the limitation act, this suit must be held to be barred. that article applies to a suit during the life of a hindu female by a hindu, who, if the female died at the date of instituting the suit, would be entitled to the possession of land to have such alienation of the land made by the female declared to be void except for her.....
Judgment:

1. The plaintiff in. this suit sued as a Hindu reversioner to declare an alienation made by the 1st defendant invalid as against his reversionary interest. The 1st defendant is the daughter of the plaintiff's senior paternal uncle. The plaintiff's case was that the property alienated was given to her for maintenance. This was denied on the part of the defendants. The District Munsif found that it was not proved to have been given for maintenance but he, however, took the estate held by the 1st defendant to be a limited one. He also held the at the suit was not barred by limitation and gave the plaintiff the declaration asked for. On appeal, the District Judge begins his judgment by saying that the only point argued is one of limitation. In considering that paint, the Judge goes on to say that the Munsif having found that the grant was not for maintenance, it must be presumed that it was an absolute gift to 1st defendant with full powers of alienation. If the 1st defendant had an absolute estate, with right of alienation, then the plaintiff would have no cause of action at all and there would be no question whether his suit for a declaration was barred. He then refers to the case of Bairangi Singh v. Manokarnika Baksh Singh 30 A.P 1 : 3 M.L.T. 1 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 5 A.L.J. 1 . The bearing of that case, we suppose, was taken to be that the plaintiff would not be entitled to impeach an alienation which his father, who was living for sometime after it was made, did not attack. This, again, has nothing to do with the question of limitation. Substantially, therefore, the District Judge has decided the case on the ground that the plaintiff has no cause of action. We cannot regard this judgment as satisfactory and having regard to the statement that the question of limitation alone was argued, we cannot accept the finding of the Judge that the 1st defendant had an absolute estate. We must confine ourselves to the consideration of the question of limitation arising from the facts that the plaintiff's father did net sue to set aside the alienation in dispute and that more than 12 years had elapsed from the date of alienation before this suit was brought.

2. The alienation in question was made in 1896. The plaintiff was then a minor of tender years. His father was alive. The father died without questioning the alienation. The suit was instituted in 1909, more than 12 years after the date of the alienation. It is contended for the respondent that, under Article 125 of the Limitation Act, this suit must be held to be barred. That Article applies to a suit during the life of a Hindu female by a Hindu, who, if the female died at the date of instituting the suit, would be entitled to the possession of land to have such alienation of the land made by the female declared to be void except for her life; the period is 12 years and the starting point is the date of the alienation. Now, the plaintiff in this suit is a person who would be entitled at the date of the instituting of the suit to the possession of the land if the 1st defendant then died. The plaintiff was a minor at the date of the suit. We may note that a question was raised with respect to the plaintiff's real age by the defendant but the issue framed to try it was not pressed and we must, therefore, proceed on the footing that the plaintiff was a minor. Applying Section 6 of the Limitation Act, the plaintiff's suit is not barred by limitation as he is entitled to institute it within three years after he attained majority; prima facie, then, his suit is not barred. But it is argued by the learned Vakil for the respondent that as at the time of the alienation, the plaintiff's father was alive and as the father could have instituted a suit for declaration, the present suit must be taken to be barred because the cause of action for a declaratory suit is the same for both the father and son, and the son should be taken to claim through the father. The argument was considered and held to be untenable in Govinda Fillai v. Thayammal 28 M.K 57 by Benson and Davies, JJ. The decision in that case is in accordance with the view taken by the Allahabad High Court in Bhagwanta v. Sukhi 22 A.P 33 and by the Calcutta High Court in Abinash Chandra Mazumdar v. Hurinath Shaha 9 C.W.N. 25 : 32 C.P 62. A different view was, no doubt, taken by the Bombay High Court in Chhaganaram Astikram v. Bai Motigavri 14 B.K 512. The judgment, in that case, proceeds on the ground that remoter reversioners must be taken to claim through the immediate reversioners. As pointed out in Sahyahani Ingle Rao Sahib v. Bhavani Bozi Sahib 27 M.K 588 this view is not in accordance with the dicta of the Privy Council in several cases. These dicta were again considered in Chiruvolu Funnamma v. Chriuvolu Perraju 29 M.P 390 : 1 M.L.T. 183 : 16 M.L.J. 307 a Full Bench decision. The case itself was one for declaration with regard to an adoption. A distinction was made between suit for a declaration of the invalidity of an alienation made by a widow and of the falsity of an alleged adoption or the invalidity of an alleged adoption made by a widow. In Kammeneni Chinna Veerayya v. Lakshmi Narasimma 22 M.L.J. 375 : 11 M.L.T. 184 : (1912) 1 M.W. 442 : 15 Ind. Cas. 213 the view laid down in Sakyahari Ingle Rao Saheb v. Bavani Roy Sahi 27 M.P 588 was followed. Mr. Seshaohariar has called our attention to two decisions of this Court, which he says support his contention. The first of these is Krishnier v. Lakshmiammal 18 M.L.J. 275 : 3 M.L.T. 319. There several daughters sons of a Hindu proprietor instituted a suit for a declaration that certain alienations made by their grandmother were invalid. Some of the plaintiffs had attained their majority more than six years before the suit was instituted. But one of them was a minor within three years before the institution of the suit. It was contended that the suit was not barred by limitation so far as the latter was concerned. The argument did not prevail. The ratio decidendi may be stated in the words of the learned Judges who decided the case: 'The plaintiffs are admittedly members of a joint Hindu family and they would be entitled to succeed jointly to the estate of their maternal grandfather, Annanta Krishna Iyer, if their mother Lakshmi were now dead: Venkayamma Garu v. Venkataramanayyamma Bahadur Garu 25 M. 678 : 29 I.A. 156. They would inherit his estates as ancestral property under the ordinary law of inheritance with right of survivorship. The first plaintiff was alive at the date of the alienations and the right to sue accrued to the family on the date of the alienation. Chirucolu Punnamma v. Chiruvolu Perraju 29 M.P 390 : 1 M.L.T. 183 : 16 M.L.J. 307 . The 1st plaintiff attained majority many years ago and could have brought the present suit on behalf of the joint family.' It is clear that the decision proceeded on the ground that the plaintiffs were all entitled to their maternal grandfather's property as their joint estate and that the suit could have been instituted by the eldest of them on behalf of all, and the decision in Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu 25 M.L 678 : 29 I.A. 156 is relied on as justifying this view. But, as already stated, this is not the view held by the Privy Council with respect to the right of reversioners to impeach an alienation made by a widow. The special considerations held to be applicable where the reversioners are the daughter's sons inheriting the estate of their maternal grandfather cannot be held to y apply to other reversioners. The other case, on which Mr. Seshaohariar relied, is Mullagudi Ratnam v. Mullagudi Ramayya 25 M.P 731. There the alienation was made by the maternal grandmother of the plaintiff in 1874. A previous suit had been instituted for declaring the invalidity of the alienation by the two of the daughters of the grandfather but had been withdrawn. The plaintiffs asked that the original alienation of 1874, as well as what was regarded as tantamount to an alienation by the plaintiffs in the previous suit in consequence of their withdrawing it, be set aside. It was held that the withdrawal gave a fresh cause of action to the plaintiffs and the suit was held to be not barred. The learned Judge, however, observes: 'The Judge is right in holding that, in so far as the alienation of 1874 is concerned, this suit is barred by limitation.' No reasons are given in support of the opinion, and, notwithstanding the high authority of the learned Judges who decided it, we are, with all deference, constrained to differ from their view. We must hold that the suit is not barred by limitation assuming that the 1st defendant had only a limited estate in the property alienated. We reverse the decrees of the District Judge and remand the appeal for disposal on the other questions raised in the case including the questions of the extent of 1st defendant's estate.

3. Costs in the second appeal will abide the result.


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