V. Ratnam, J.
1. Defendants 1 to 5 and 7, who had lost in the Courts below are the appellants in this second appeal, which arises out of a suit instituted by the first respondent herein for recovery of possession of the suit property and for recovery of a sum of Rs. 1,290 towards past mesne profits and also for future mesne profits. The suit properties according to the first respondent, were the self-acquired properties of one Nataraja Pillai, his paternal grandfather. Nataraja Pillai, executed a settlement deed on 2nd March, 1951, in respect of the suit properties giving a life estate in favour of his wife Ponnukkannu Achi and the vested remainder in favour of the first respondent. The first respondent, at the time of the settlement, was only a child, aged about 4 months. According to the terms of the settlement deed, Ponnukkannu is to have a life estate without any powers of alienation. While so, Ponnukkannu Achi purporting to act as guardian of the then minor first respondent and on her own behalf, sold the suit properties to one Shanmugham Pillai on 15th July, 1957. It was claimed by the first respondent that the said sale was invalid so far as his right in the property is concerned as Ponnukkannu Achi is not the legal guardian of the first respondent. In addition, it was also contended by the first respondent that the debts referred to in the sale deed were all false and that there was no necessity also for the sale of the properties and that the sale was also not for the benefit of the then minor first respondent and it is therefore, null and void. The first respondent, therefore, claimed that he is entitled to ignore the sale deed and recover possession of the properties. Ponnukkannu Achi appears to have died later and thereafter, the first respondent claimed that he is entitled to possession of the suit properties from the legal representatives of the deceased vendee from Ponnukkannu Achi viz., Shanmugham Pillai whose legal representatives are the appellants. The fifth appellant is an alienee of a portion of the suit properties. According to the first respondent, the lands will yield about 18 to 20 kalams per mah and the lands are double crop lands and he restricted his claim to mesne profits for three years prior to the suit at 7 kalams per mah i e., 35 kalams per year at the rate of Rs 13 per kalam. After deducting the kist of about Rs. 25 the first respondent claimed past mesne profits for the years 1968-69, 1,969-70 and 1970-71 at a sum of Rs. 1290 besides future mesne profits.
2. The suit was resisted mainly by the first appellant whose written statement was adopted by the other appellants and their case is as follows:It was contended by them that the allegation that the suit properties were the ancestral properties of Nataraja Pillai is not true. The settlement deed dated 2nd March, 1951, executed by Nataraja provided for a life enjoyment for Ponnukkannu and since Ponnukkannu died after the Hindu Succession Act XXX of 1956, the estate given to Ponnukkannu became enlarged into a full estate and therefore, the first respondent was not entitled to any rights under the settlement and had no right whatever to impugne the sale deed in favour of Shanmugham Pillai. The further case of the appellants was that the sale deed dated 15th July, 1957 in favour of Shanmugham Pillai is only by the legal guardian of the first respondent and he brought about the transaction of sale and also attested the sale deed. It was claimed by the appellants that besides attesting the sale deed, he had also executed a registered security bond in favour of Shanmugham Pillai guaranteeing the title of the vendors in favour of Shanmugham Pillai and that security bond is over the joint family properties belonging to the first respondent and his father and since the security is binding on the first respondent also, he cannot question the sale deed in favour of Shanmugham Pillai. The appellant would have it that though the sale was effected in the name of Ponnukkannu, it was really by the legal guardian and therefore, the first respondent cannot ignore the same and that he has got to sue so set aside that document. In addition, a plea was also raised that the sale will be binding upon the first respondent as it was for the purpose of necessity and benefit of the first respondent and therefore, such a sale could not be impeached by the first respondent. A plea of limitation was also raised.
3. The learned District Munsif, Thiruvarur, who tried the suit held that the suit for seeking to set aside the sale deed in favour of Shanmugham Pillai is maintainable, that the sale deed has to be held to be not binding on the first respondent and that the suit was not barred by time. It was further held that Ponnukkannu Achi had only a life estate under the settlement deed executed by Nataraja Pillai and that the first respondent is entitled to a sum of Rs. 900 by way of past profits. The suit was, therefore, decreed by the trial Court for recovery of possession along with the past mesne profits of Rs. 900. With reference to the future mesne profits claimed, an enquiry under Order 20, Rule 12, Civil Procedure Code, was directed. The liability of the second respondent for past and future profits to the first respondent was negatived. Aggrieved by that judgment and decrees, the appellants preferred an appeal in A.S. No. 73 of 1976, District Court, East Thanjavur, at Nagapattinam. The learned District Judge held that the suit, without seeking to set aside the sale deed in favour of Shanmugham Pillai, is maintainable and that the said sale is not binding upon the first respondent. It was held, agreeing with the trial Court, that the suit was in time. The past, mesne profits fixed by the trial Court at Rs. 900 was held to be reasonable and that it did not call for any interference. The direction regarding the enquiry into the future mesne profits was maintained and the appeal was dismissed.
4. In this second appeal, the learned Counsel for the appellants raised three contentions:
(1) On an interpretation of the terms of the settlement deed Exhibit A-3 dated 2nd March, 1951, Ponnukkannu Achi was given a life estate which became ripened into an absolute estate on the coming into force of the Hindu Succession Act, Central Act XXX of 1956 and therefore, she was competent to dispose of the property and therefore, the first respondent could not impugn or otherwise challenge the sale deed in favour of Shanmugham Pillai executed by Ponnukkannu under Exhibit B-l dated 17th July, 1957.
(2) The sale deed was executed by Ponnukkannu Achi who was a de facto guardian and the sale was for purposes binding upon the minor and for necessity and for his benefit and therefore, the first respondent could not challenge the sale; and
(3) It was contended that the suit instituted on 15th November, 1971, was barred by limitation.
5. The first contention relates to the applicability of the provisions of Section 14 of the Hindu Succession Act. In order to ascertain the precise nature of the interest that was conferred on Ponnukkannu Achi, it is necessary to look into the recitals in the document which are set out hereunder:
6. In the trial Court, though the appellants had taken the stand that under the aforesaid recitals in Exhibit A-3 Ponnukkannu Achi secured only a life estate, it was contended by them that this was enlarged into an absolute estate. In spite of this plea having been taken, the appellants had abandoned this in the trial Court because their counsel had conceded that Section 14(1) of the Hindu Succession Act will not apply to the facts of the case and it is perhaps on account of this concession that was made on behalf of the appellants that no discussion whatever with reference to the applicability of Section 14 is found in the course of the judgment of the lower appellate Court.
7. Yet, the learned Counsel for the appellants contends that having regard to the terms of the settlement deed, Section 14(1) of the Hindu Succession Act will apply to the instant case and therefore, the interest that was Conferred upon Ponnukkannu Achi would enlarge into an absolute estate and therefore, she is competent to dispose of the properties as she did under Exhibit B.1 dated 17th July, 1957. Whatever might have been the cobwebs of confusion that prevailed with reference to the interpretation of Section 14 of the Hindu Succession Act, the Supreme Court has clearly laid down the following propositions as emerging from a detailed discussion of the statutory provisions and the decided cases in V. Tulasamma v. Sesha Reddi : 3SCR261 , as follows:
(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right, may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a preexisting right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation there to have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long-needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts etc., which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the subsection has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of Sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like 'property acquired by a female Hindu at a partition,' 'or in lieu of maintenance' 'or arrears of maintenance' etc., in the Explanation to Section 14(1) clearly makes Sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of Sub-section (2).
(6) The words 'possessed by' used by the legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.
(7) That the words 'restricted estates' used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.
8. Applying the tests to the recitals in the document, the question with reference to the applicability of Section 14 of the Hindu Succession Act has to be decided. The settlement is stated to have been executed on account of the love and affection of the settlor towards the settlees. It is further recited that the first settlee Ponnukkannu Achi had suffered much even during the time when she was living with the settlor and since it was the intention of the settlor that the said Ponnukkannu Achi should live for the rest of her lifetime without any difficulties, the properties dealt with thereunder have been directed to be enjoyed by her for her lifetime without any powers of alienation whatever and thereafter the first respondent should take the properties absolutely. There is a further recital in the settlement deed that the possession of the properties had been given on that date. On a fair construction of the language of the document, it seems to me that the instrument created for the first time an interest in favour of Ponnukkannu Achi, the enjoyment of which was restricted to her lifetime. There are no words in this document which seek to confirm, endorse, declare or recognise any pre-existing rights and therefore, as per the tests laid down by the Supreme Court cited above, Section 14(1) of the Hindu Succession Act cannot be invoked in the present case. There is no intention manifested which would disclose that the properties were either allotted or transferred to a female in lieu of maintenance or a share at partition and therefore, the instrument, in the instant case, cannot be taken out of the scope of Section 14(2) of the Hindu Succession Act. It is therefore obvious that the settlee Ponnukkannu Achi did not obtain any estate to which Section 14(1) could be held to apply in the light of the principles laid down by the decision of the Supreme Court referred to above. A consideration of the recitals, as stated already, does not indicate that the settlement was in lieu of maintenance or any recognition of pre-existing rights but is a conferment of a fresh title or right for the first time on Ponnukkannu Achi containing certain restrictions. In this view, Section 14(2) of the Hindu Succession Act alone can be held to be applicable to this case and the restrictions imposed upon the estate in favour of Ponnukkannu Achi under the recitals in Exhibit A-3 cannot be ignored by applying Section 14(1). Therefore, on the death of Ponnukkannu, the first respondent admittedly became entitled to the properties and the alienation by Ponnukkannu Achi, therefore could not defeat the interest of the first respondent under the recitals in Exhibit A-3.
9. It now remains to be examined whether the sale deed Exhibit B-l dated 17th July, 1957, can in any manner be said to be or held to be binding on the first respondent. The learned Counsel for the appellants strenuously contended that the sale is binding upon the first respondent as it had been executed for his benefit viz., to discharge prior debts and purchase of other properties in a nearer place. The consideration for the sale deed is Rs. 2,300 and it consists of two parts viz., (1) Rs. 1,240/- representing the amount due on promissory note to one Viswalinga Pillai by Ponnukkannu Achi which was agreed to be paid and discharged by the vendee and (2) a sum of Rs. 1,060 which was agreed to be received before the Sub-Registrar for the purpose of maintaining the then minor, the first respondent herein, and also for the purpose of purchasing other properties. In support of the discharge the promissory note, Exhibit B-3 dated 15th April, 1953, executed by Ponnukkannu Achi in favour of Viswalingam Pillai had been produced. But there is no evidence connecting the borrowing under Exhibit B-3 with any benefit or binding necessity in so far as the first respondent is concerned. Likewise, there is also no evidence to show that other properties in the nearer place have been purchased utilising the consideration, that is stated to have passed under Exhibit B-3. Factually, therefore, it can be taken that the appellants have not satisfactorily established that the sale under Exhibit B-l was effected for the benefit or binding necessity of the then minor, the first respondent herein. It is further contended by the learned Counsel for the appellants that even though the natural father of the first respondent was alive, yet, the de facto guardian can alienate the properties for purposes of binding necessity and benefit and therefore, the sale should be upheld. Apart from the circumstance that factually the sale deed had not been established to have been executed for any purpose binding upon the erstwhile minor, it is also clear that Section 11 of the Hindu Minority and Guardianship Act prevents any dealing by a de facto guardian after 25th August, 1956. Section 11 runs thus:
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 de facto guardian of the minor.
The learned Counsel for the appellants relied upon a judgment of this Court reported in Mayilswami Chettiar v. Kaliammal (1968) 81 L.W. 406. That decision proceeds to examine the question whether even in the presence of a legal guardian in existence, the alienation of minor's property by a de facto guardian would be valid if it is for necessity. Obviously, the existence of Section 11 of the Hindu Minority and Guardianship Act had not been brought to the notice of the Court. The alienation by a de facto guardian for legal necessity was held to be valid under the old Hindu Law. The position has been totally altered by the introduction of Section 11 of the Hindu Minority and Guardianship Act referred to above. After 25th August, 1956, any alienation by a de facto guardian is void ab initio and such a guardian is incompetent to make the alienation which would bind the minor. The position of an alienee from such a de facto guardian has been held to be that of a trespasser in D. Gurumurthy v. Raghu Podhan : AIR1967Ori68 . The decision relied upon by the learned Counsel for the appellants viz-, Mayilswami Chettiar v. Kaliammal : AIR1967Ori68 deals with the position as if obtained prior to the introduction of Section 11 of the Hindu Minority and Guardianship Act and cannot therefore be pressed into service by the learned Counsel for the appellants, even with reference to the transactions which have come into existence after 25th August, 1956.
10. The next contention of the learned Counsel for the appellant is that the possession of the alienee from the date of alienation i.e., Exhibit B-l is adverse because the transaction would be a void one and therefore, the institution of the suit only on 15th November, 1971, would be clearly barred by limitation as having been instituted 12 years after 17th July, 1957, and the appellants had in the meanwhile acquired prescriptive title to the suit properties. This contention is without any substance. Even according to the plaint, the first respondent was born on 26th November, 1950, and he attained majority on 26th November, 1968. With reference to the date of birth of the first respondent, the Courts below have accepted Exhibit A-1, the birth register extract and Exhibit A-2 the horoscope of the first respondent. From these documents, it is clear that the first respondent was born on 26th November, 1950 and as such, he would have attained majority only on 26th November, 1968. At the time of the impugned alienation, it is evident that the first respondent was a minor and therefore, he was under disability to institute the suit till the attainment of majority on 26th November. 1968. The suit having been instituted within three years of his attaining majority, the suit would be well in time. The matter may also be looked at from another point of view. Construing the suit instituted by the first respondent as a suit falling; under Article 65 of the Limitation Act. the date of death of Ponnukkannu Achi furnishes the starting point. With reference to that, it is stated in the written statement of the 7th defendant that Ponnukkannu Achi died late in the year 1959. In the Cross-examination of P.W. 1 it has been answered that she died sometime in 1960. The suit had been filed in any case within 12 years from the date of death of Ponnukkannu Achi and therefore, the suit cannot be said to be barred by limitation. The suit in my view, having been actually instituted on 15th November, 1971, would be in time. In the result, all the contentions raised by the learned Counsel for the appellants fail and the second appeal is therefore dismissed with costs.