Andhra HC (Pre-Telangana)
Kalavacherla Bala Tripura Sundaramma ... vs Rachuri Subbarayudu And Ors. on 15 September, 2006
Equivalent citations: 2007(5)ALD339
JUDGMENT C.Y. Somayajulu, J.
1. Defendants 14 to 18 and 20 to 26 in a suit for partition filed by respondents 1 to 7 as indigent persons are the appellants. For the sake of convenience, parties to the appeal would hereinafter be referred to as they are arrayed in the trial Court.
2. The case of the plaintiffs, in brief, is that plaintiffs 1 to 5 are the great grandsons of Rachuri Swamy who had a son by name Subbarayudu whose son is Gangaraju i.e. the 1st defendant and was married to the 2nd defendant. They begot plaintiffs 1 to 5 and three daughters from out of their wedlock. Properties specified in the plaint 'A' schedule which belonged to Rachuri Swamy devolved on his son Subbarayudu and thereafter on the first defendant. As first defendant was addicted to vices and was contracting debts for that purpose, he nominally executed a gift deed in respect of the plaint 'A' schedule properties in the name of his wife, the 2nd defendant and so the said gift deed is void. 2nd defendant, in pursuance of the said gift deed, executed sale deeds in favour of some of the defendants or their predecessors-in-interest. Since all those transactions of sale are void, they can ignore those transactions and seek partition of their share in 5/6th of the plaint 'A' schedule property. Since fourth plaintiff died during the pendency of the suit, plaintiffs 6 and 7 came on record as his legal representatives.
3. Defendants 3, 4, 7 to 11 and 13 to 16 filed a common written statement, which was adopted by defendants 9, 17 and 18. 5th defendant filed a separate written statement. Other defendants chose to remain ex parte.
4. In his written statement, 5th defendant while admitting the relationship between the plaintiffs and defendants 1 and 2 denied the allegation that plaint 'A' schedule properties are all the joint ancestral properties of the defendants 1 and 2 and contended that they are all the self acquired properties of the first defendant. As 1st defendant was not pursuing the caste profession and was whiling away the time, persons interested in the family got the settlement deed dated 29-1-1952 executed by the 1st defendant under which he reserved a life interest in himself and his wife, the second defendant, and gave the vested reminder to his sons and continued to be in management of the said property. Item 9 of the plaint 'A' schedule was purchased by him from the 2nd defendant for valuable consideration. He later exchanged it with the property shown in the schedule appended to his written statement. Since the suit is barred by time, plaintiffs are not entitled to any relief.
5. The averments, in brief, in the written statement filed on behalf of defendants 3, 4, 7 to 11 and 13 to 16 are, the averment that the properties covered by the plaint 'A' schedule are all ancestral properties of the father of the plaintiffs and that the first defendant was addicted to vices is not true. Their contention that the gift deed executed by the first defendant nominal and fictitious and that it does not bind them is not correct. Plaintiffs are estopped from questioning the alienations made by 2nd defendant. As the suit is barred by time, they are not entitled to any relief.
6. Basing on the above pleadings, the trial Court settled as many as 8 issues for trial. In support of their case, plaintiffs examined only the 1st plaintiff as P.W. 1 and marked Exs. A.1 to A. 12. In support of their case, defendants examined nine witnesses as D.Ws. 1 to 9 and marked Exs. B.1 to B.16 on their behalf. The trial Court, on issues 1, 2 and 6, which relate to the questions about the age of the 4th plaintiff by the date of plaint, the suit being in time and the adverse possession of defendants 3, 4, 7 to 11 and 13 to 18 in respect of the properties purchased by them, held that the 4th plaintiff was bom on 15-1-1959 and was aged 21 years 2 months by the date of plaint and that the suit filed by him is not barred by limitation and that none of defendants 3, 4, 7 to 11 and 13 to 18 have perfected their title to the properties purchased by them by adverse possession; On issue No. 3 relating to the question whether the plaint 'A' schedule properties are the ancestral properties of the first defendant, it held that all the plaint 'A' schedule properties are the ancestral properties of the 1st defendant and the plaintiffs 1 to 5; On issue No. 4 relating to the validity of Ex. A.2 gift deed executed by the 1st defendant in favour of the 2nd defendant, it held that it is collusive and is void; On issue No. 5 relating to question whether the alienations made by the 2nd defendant in favour of other defendants are valid, it held that all the alienations except the alienation made under the original of Ex. B.16 are valid and that the alienation made under Ex. B.16 is void; On issue No. 7 relating to the question whether plaintiffs are entitled to any shares in any of the plaint 'A' schedule properties and if so to what share and in which properties, it held that items 1, 4 and 5 of the plaint schedule only are available for partition and that the other items i.e. items 2, 3, 6, 7, 8 and 9(a) and 9(b) are not available for partition and that plaintiffs 1,2,3 and 5 are each entitled to one share and that plaintiffs 6 and 7, who were impleaded as the legal representatives of the 4th plaintiff, are entitled to 1/6th share and that the 1st defendant is entitled to the remaining 1/6th share and accordingly passed a decree for partition of items 1, 4 and 5 of plaint 'A' schedule into 6 equal shares by metes and bounds and dismissed the suit in respect of the other items with costs and directed mesne profits being enquired in a separate application and directed the plaintiffs to pay the Court fee. Aggrieved by the finding that the alienation made under Ex. B.16 relating to Item No. 4 of the plaint 'A' schedule is void, appellants preferred this appeal.
7. Since the plaintiffs did not prefer any cross appeal or cross objections questioning the finding of the trial Court dismissing their claim in respect of items 2, 3, 6, 7, 8 and 9(a) and 9(b), and since this appeal is confined to the finding of the trial Court in respect of Ex. B.16 which relates to item No. 4 of the plaint 'A' schedule, the point for consideration in this appeal is whether the sale in item No. 4 of the plaint 'A' schedule is void and if so whether the suit for recovery of that item is in time ?
8. The main contention of Sri S.V. Bhatt, the learned Counsel for the appearing defendants is that, in the teeth of the recitals in Ex. A.1 the trial Court was in error in holding that all the plaint 'A' schedule properties were the ancestral properties of defendants 1 and 2 and the plaintiffs, because the recitals therein show that some of the items covered thereby are the self-acquired properties of the first defendant, and when the plaintiffs failed to adduce evidence, except the interested oral evidence of the first plaintiff as P.W. 1, regarding the nature of the properties gifted under Ex. A.1 and was in error in holding that the suit is in time, ignoring Section 8 of the Limitation Act, 1963, as 1st plaintiff was also a party to Ex. B.16 and so even assuming that Ex. B.16 is void, plaintiffs are not entitled to any relief in respect of item No. 4 of the plaint 'A' schedule also. He relied in Chinnaiah v. Katayya , Darshan Singh v. Gurdev Singh , Bailochan Karan v. Basant Kumari Naik , Bathina Somayya v. Gandi Veeraraju 1966 (2) An. WR 450, Venkatesan v. Neelayathakshiammal , Subramanyam v. Venkataraman , Jandhyala Sreerama Sarma v. Nimmagadda Krishnavenamma AIR 1957 AP 434 and A.S. Muthiah v. Peter Nadar . It is his contention that the finding of the trial Court that in view of the provisions of the Hindu Minority and Guardianship Act, 1956 (the Act), Ex. B.16 executed by the 2nd defendant as the guardian of the minor 1st plaintiff in the presence of the 1st defendant is void, is unsustainable because Ex. B.16 was executed prior to the coming into force of the Act and the law prevailing prior to the coming into force of the Act was that alienations made by a de facto guardian for the necessities and benefit of the minor are valid and relied on Palani Goundan v. Vanjiakkal AIR 1956 Mad. 476, Kapila Annapurnamma v. Ramanjaneyaratham , Kasturi Lakshmibayamma v. S. V. Rao , Jijabai Vithalrao Gajre v. Pathankhan , B. Ramender Reddy v. B.V. Satyanarayana Reddy 1986 (1) ALT 240 and Amirthavalliammal v. Sironmani Animal ILR 1933 Mad. Series 757 and contended that since the finding of the trial Court is that all the alienations were made for the benefit of the estate and for the benefit of the minors the finding of the trial Court on the validity of Ex.B.16 is unsustainable.
9. The contention of Sri M. V. Suresh, learned Counsel for the plaintiffs is that since the Ex. A.1 shows that the joint family of the 1st defendant and his father was having sufficient nucleus a presumption that the properties acquired by them subsequently are joint family properties can be raised and the burden of proof to show that they are not the joint family properties but are the self acquired properties of the first defendant would be on the person so claiming and since the contesting defendants failed to adduce evidence to show that the properties covered by Ex. B.16 were the self acquired property of the first defendant, the finding of the trial Court that the properties covered by Ex. A.2 are all joint family properties needs no interference. It is his contention that there is no evidence on record to establish that the alienation made under Ex. B.16 was for the necessities of the minor or for the benefit of the estate and so the finding of the trial Court that Ex. B.16 is void cannot be said to be erroneous. It is his contention that since the suit is filed within 12 years from the date of the attaining majority by the plaintiffs the finding of the trial Court rightly held that the suit is within time.
Point:
10. Since the appeal is confined only to the alienation made under the original of Ex. B.16 by the 2nd defendant in respect of item No. 4 of the plaint 'A' schedule, in order to succeed plaintiffs have to first establish that the said item was the joint family property. Except baldly alleging that all the properties covered by the plaint 'A' schedule are the joint family property of the first defendant and his father and grandfather, plaintiffs did not give the details of the property possessed by their great grandfather or their grandfather and what property was inherited by their father i.e., the 1st defendant, from their grandfather. Ex. A.1 is relied on by the plaintiffs to show that some property was given to their grandfather during partition. Ex. A.1 is in a torn condition and the ink therein faded. So what is written therein is not known as it is not legible, hence it is very difficult to read the contents therein. There are also overwritings in a different ink therein. After taking a lot of strain to read it, I could understand it was executed by Chakalilanka Sahebugadu, Chakali Raja Rama Swamy and Chakali Mahalakshmi. The relationship between Chakalilanka Sahebugadu, Raja Rama Swamy and Mahalakshmi and the plaintiffs is not explained by the plaintiffs. Survey numbers of the properties mentioned in Ex.A.l are not readable. The total extents of items 1 to 3 mentioned therein are shown as Acs. 5-34 cents, Acs. 3-96 cents and Acs. 2-20 cents respectively. The extent of the other items mentioned therein is not legible. Since Ex. A.1 is a registered document plaintiffs could have obtained a registration extract thereof, to enable the Court finding out if the overwritings, interlineations etc., found therein were made prior to its registration or subsequent to its registration. If the overwritings etc., are made subsequent to its registration, it amounts to material alteration of the document and hence cannot be taken into consideration. The registration extract, if produced, also would have helped the Court knowing the contents of Ex. A.1. In these circumstances, Ex. A.1 is of little help to the plaintiffs.
11. The only witness examined on behalf of the plaintiffs is P.W. 1, the first plaintiff. His evidence is that Ex. A.1 is the partition deed between his great grandfather Swamy and his joint owners. Plaintiffs did not mention the father's name of their great grandfather Swamy. The name of Rachuri Swamy is not found in Ex. A.1. So, it is difficult to believe that Ex. A.1 relates to the properties of the plaintiffs or their ancestors. Be that as it may, the recitals in Ex. A.2 do not support the contention of the plaintiffs that it is in respect of the joint family properties of their joint family because there is a specific recital therein that the 1st defendant has ancestral and self-acquired properties. Therefore, plaintiffs have to establish what items of property covered by Ex. A.2 were in fact inherited by their father (the first defendant) from their grandfather and what items therein were acquired by the first defendant subsequently. If there is evidence to show that the income derived from the properties inherited by the first defendant would have been sufficient for acquiring the other properties subsequently, as rightly contended by the learned Counsel for plaintiffs, a presumption can be drawn that the subsequent acquisitions would be the joint family properties and the burden would be on the 1st defendant to establish that they were his self acquired properties. 1st defendant has a right to make a gift of his self acquired properties to anybody of his choice. Plaintiffs have no right to question the same. In respect of joint family properties only, right of the 1st defendant to gift them is limited. So, unless plaintiffs establish, by cogent evidence, that all the properties covered by Ex. A.2 are the joint family properties, merely on the oral assertion of P.W. 1, that too when the plaint does not disclose which items in the plaint 'A' schedule were inherited by the first defendant which items thereof were acquired by the 1st defendant subsequently, it is difficult to hold that all the properties mentioned in the plaint 'A' schedule are the joint family properties of plaintiffs and defendants 1 and 2. Significantly P.W. 1 also did not state what items of the plaint 'A' schedule were inherited by the first defendant and the income therefrom and what items of the plaint 'A' schedule were purchased by the 1st defendant and for what consideration and when. So, it is difficult to hold that all the plaint 'A' schedule properties were the joint family properties of plaintiffs and defendants 1 and 2. Therefore, I hold that there is no reliable evidence on record to show that item No. 4 of the plaint 'A' schedule was joint family property of the plaintiffs and defendants 1 and 2. Assuming that item No. 4 of the plaint 'A' schedule was the joint family property of the plaintiffs and 1st defendant, I would examine the validity of Ex. B.16.
12. Under Ex. A2 first defendant reserved a life estate in himself created a life interest in favour of his wife, the 2nd defendant, and gave the vested reminder to the sons to be born to him and the 2nd defendant. So, it is clear that the property did not go out of the hands of the joint family of plaintiffs and defendants 1 and 2. Neither the averments in the plaint nor the evidence of P.W. 1 disclose under whose custody the plaintiffs were during their minority. The evidence on record shows that the 2nd defendant alienated some of the properties mentioned in the plaint 'A' schedule for discharging the debts contracted by the 1st defendant and for maintenance of her minor children. So, it has to be assumed that 2nd defendant was acting as the de facto guardian of the plaintiffs. The recitals in Ex. B.16 dated 17-11-1954 executed by the 2nd defendant for herself as the guardian of the first plaintiff and attested by the first defendant show that item No. 4 of the plaint 'A' schedule was sold thereunder to Kalavacharla Bapiraju to enable the executants purchasing a site and constructing a house therein for their living at Rajahmundry. In the plaint, the address of defendants 1 and 2 is given as House No. 11-3-9, Sriram Nagar, 9th Ward, Rajahmundry. Since it is not the case of the plaintiffs that their joint family possessed any land or site or house at Rajahmundry, it can be inferred that the house in which defendants 1 and 2 are living was purchased from out of the sale proceeds of the property sold under Ex. B.16. P.W. 1 stated that he does not know if the 2nd defendant alienated item No. 4 of the plaint 'A' schedule for the purpose of buying a site and constructing a house therein at Rajahmundry. D.W. 9 i.e. 15th defendant stated that his father purchased item No. 4 of the plaint 'A' schedule under Ex. B.16.
13. The ipsi dixit of 1st plaintiff, as P.W. 1, that as he was not looked after by his parents he is living away from them cannot be believed or accepted. In the plaint, plaintiffs described himself as residents of Kadiam which is in the outskirts of Rajahmundry, but he did not adduce any evidence to show that he actually is residing at Kadiam. The evidence of P.W. 1 and the addresses of plaintiffs 2 to 5 mentioned in the plaint show that plaintiffs 2 to 5 are living with defendants 1 and 2. Since defendants 1 and 2 chose to remain ex parte it is easy to see that the suit is filed in collusion with them. Probably with a view to give a colour of reality for his case that he is living away from his parents first plaintiff must have shown his place of residence a Kadiam. Be that as it may, it is clear that the sale proceeds under Ex. B.16 were utilized by defendants 1 and 2 for acquiring a site at Rajahmundry and that they constructed a house therein and living there, if not with all the plaintiffs, admittedly with plaintiffs 2 to 5. So, it is clear that the alienation was for the family necessity.
14. While dealing with a case relating to an alienation made by a de facto guardian of a Hindu minor by way of sale, a Division Bench of the Madras High Court in Palani Goundan's case (supra), held that such alienation cannot be regarded as void and that it is voidable at the instance of the minor, and the tests for determining its validity would depend upon the legal necessity, or the benefit of the minor etc., and if the alienation is made by a de facto guardian ostensibly for necessity or for the benefit of the minor, such alienation is voidable at the instance of the minor and that he can repudiate it, or more formally challenge it by bringing a suit either through a next friend during his minority or after attaining majority within the period of limitation allowed by law and held that the right to avoid the transfer is a personal privilege and is not heritable.
15. A Division Bench of this Court in Kapila Annapurnamma 's case (supra), held that in Hindu Law, there is no distinction between a de facto and de jure guardian so far as their powers are concerned, and so a de facto guardian can also alienate the property of a minor for necessity or benefit of the infant, and can also enter into contracts on his behalf. A similar view was taken by another Division Bench in Kasturi Lakshmibayamma's case (supra), therein it was also observed that Courts have repeatedly held that alienations made by de facto guardians are only voidable in the same manner as alienations made by a de jure guardian.
16. In Jijabai Vithalrao's case (supra), the apex Court considered the effect of alienation made by the mother in the presence of the father of the minor after the coming into force of the Act and upheld the alienation made by the mother in the facts and circumstances of that case.
17. Since Ex. B.16 was executed for the purpose of purchasing a site to construct a house for the benefit of the members of the family and since plaintiffs 2 to 5 and defendants 1 and 2 admittedly are living in the house constructed in the site purchased with the sale proceeds of Ex.B.16 sale also, before the coming into force of the Act, in view of the ratio in above decisions the said alienation cannot be said to be void but is only a voidable transaction. Therefore, the finding of the trial Court that in view of the ratio in B. Ramender Reddy's case (supra). Ex. B.16 a void is not the correct view.
18. The evidence of P.W. 1 is that applications for extracts from the Birth Register of the plaintiffs were returned on the ground that their births were not registered. Significantly, plaintiffs did not file application for search of the Birth Register to find out if their birth was registered or not. They filed applications for extracts of their birth from the Birth Register giving particular dates as their dates of birth. Those applications were returned with endorsements that no entries relating to their births, on the mentioned dates, are found in the register. For the purpose of this case, I assume that the dates of birth mentioned by the plaintiffs are their correct dates of birth. Here it should be stated that the date of presentation of the plaint is wrongly noted as 3-9-1981 in the decree of the trial Court. It was actually presented on 7-4-1980 with a prayer to declare the plaintiffs as indigent persons. So, the date of presentation of the plaint would be 7-4-1980 but not on the date on which they were permitted to sue as indigent persons. According to the case of the plaintiffs, 1st plaintiff attained majority on 15-7-1968, 2nd plaintiff attained majority on 1-1-1970, 3rd plaintiff attained majority on 4-2-1974, 4th plaintiff attained majority on 15-1-1977 and 5th plaintiff attained majority on 10-7-1978. The contention of the learned Counsel for plaintiffs is that inasmuch as the suit was filed within 12 years of the plaintiffs attaining majority the suit is within time.
19. The general rule is that suits instituted after the period of limitation prescribed therefore in the Schedule to the Limitation Act should not be entertained by Court. For that general rule Section 6 of the Limitation Act, 1963, is an exception. As per that section, limitation for the suits by persons under disability like minors, insane persons and idiots stands 'extended' for certain period after the disability ceases. It should be noted that that section does not give a fresh starting point of limitation after ceasure of the disability. It is also to be remembered that in order to claim the benefit of Section 6(1) the person must be in existence at the time of the transaction from which the period of limitation is to be reckoned. Therefore, a person who was not in existence at the time of accrual of the cause of action cannot have the benefit of Section 6 of Limitation Act, 1963.
20. The facts in Chinnaiah 's case (supra) are, after the death of his parents and the elder brother, a minor was brought up by his maternal uncle. He sold away the property of the minor on 12-11-1956 as guardian of the minor when the minor was aged 17 years. After attaining majority the quondam minor tried to interfere with the possession of the purchaser. On 21-8-1970, the purchaser of the property of the quondam minor filed a suit seeking a declaration of his title and consequential injunction against the quondam minor. The quondam minor took a defence that the alienation by his de facto guardian uncle is void and inoperative. The trial Court and the first appellate Court held that the sale was void and inoperative as the vendee was neither a legal nor de facto guardian and as it was not for necessity or for any binding purpose, but granted a decree in favour of the purchaser on the ground he perfected his title to the property purchased by him by adverse possession. In the second appeal, the contention on behalf of the quondam minor was that inasmuch as the period of limitation for prescribing title by adverse possession is 12 years from the date of attaining majority by the minor, and as the defendant was aged about 17 years in 1956 (when the property was sold) and since he had attained majority in 1961, and since the purchaser filed the suit in 1970 i.e. within 12 years from 1961, the purchaser could not have perfected his title by adverse possession. Holding that adverse possession in case of void sales would commence from the date of taking possession of the property under such void document, and since Section 6 of the Limitation Act, 1963, is subject to Section 8 thereof, suit questioning the transaction, or for recovery of possession, has to be filed by the minor within 3 years of his attaining the age of majority, the period of limitation for recovery of possession by the quondam minor under the void transaction of sale by his uncle was 12 years from the date of sale, or 3 years after he attained the age of majority whichever is longer, a Division Bench of the Madras High Court dismissed the second appeal of the quondam minor.
21. The apex Court in Darshan Singh's case (supra), held that Section 8 of the Limitation Act, 1963, is a proviso to Section 6 or 7 of that Act and a combined effect of Sections 6 and 8 of that Act and the third column of the appropriate article of its schedule, is that a person under disability may sue after cessation of disability within the same period as he would otherwise be allowed from the time specified therefor in the third column of the Schedule, but the special limitation, as an exception, is provided in Section 8 of that Act extending the period by three years after cessation of the disability. The ratio in that decision was followed in Bailochan Koran's case (supra), and it was held that even in case of void sales by the de facto guardian the period of limitation of 12 years starts from the date on which the alienation was made, and the right to file the suit questioning the alienation expires at the end of three years from the date of attaining majority by the minor ward.
22. Since Ex. B.16 is dated 17-11-1954 the cause of action to set aside Ex. B.16, even if were to be treated as a void document, started from that date i.e. 17-11-1954. The purchaser of the property covered by Ex. B.16 would perfect his title by adverse possession by 17-11-1966 i.e. 12 years after Ex. B.16 dated 17-11-1954. In view of the ratio in the above decisions the 1st plaintiff, in order to seek the aid of the Court to set aside the sale under Ex. B.16, in view of Section 8 of Limitation Act, 1963, should file a suit within three years from the date of his attaining majority i.e. within three years from 15-7-1968, which takes us to 15-7-1971. Therefore, the suit filed by him questioning Ex. B.16, on 17-4-1980, is hopelessly barred by time and so no relief can be granted to the first plaintiff in this suit even in respect of item No. 4 of the plaint 'A' schedule.
23. The other question is whether plaintiffs 2 to 5 are entitled to any relief in respect of item No. 4 of the plaint 'A' schedule. As stated earlier, in Para-19 above, Section 6(1) of the Limitation Act, 1963, does not apply to persons who are not in existence on the date of accrual of the cause of action. Since Ex. B.16 is dated 17-11-1954, second plaintiff whose date of birth is said to be 1-1-1952 and was in existence by the date of Ex. B.16 and who should have become a major by 1-1-1970 also did not question Ex. B.16 within three years from 1-1-1970. So, the suit of 2nd plaintiff also is barred by time.
24. Since the date of birth of the 3rd plaintiff is 4-2-1956, neither the 3rd plaintiff nor plaintiffs 4 and 5, born subsequent to the birth of the third plaintiff can have the benefit of Section 6 of the Limitation Act. Even otherwise also plaintiffs 2 to 5 have no right to question Ex.B.16, when 1st plaintiff failed to question the same within the time prescribed by the Limitation Act for the following reasons.
25. In Bathina Somayya 's case (supra), the plaintiff therein having entered into an agreement with the father of the defendant and his three brothers in respect of their share in the family properties, entered into a compromise in 1942 under which his right to remain in possession of the family properties was recognized. By the date of that compromise, only first defendant was born and defendants 2 to 4 were not born. All defendants 1 to 4 along with their paternal uncles trespassed into the land sold to the plaintiff more than 12 years after the compromise. So, plaintiff filed the suit for recovery of the land which was earlier delivered possession of to him. The defendants resisted the suit inter alia on the ground that the agreement entered into by their father in 1942 is not bona fide and is not binding on them and since plaintiff did not acquire title by adverse possession, at least insofar as defendants 2 to 4 are concerned, they have a right to file the suit for recovery of possession of the land in possession of the plaintiff within 3 years from their attaining majority, and since their rights are not extinguished by reason of Section 28 of the Limitation Act, 1963, plaintiff is not entitled to recover possession of the land from them. The trial Court and the first appellate Court upheld the contention of defendants 2 to 4 and declared that they have a right to 1/5th share in the suit property and dismissed the claim of the plaintiff to that extent. The second appeal was allowed and the claim of the plaintiff was upheld on the ground that defendants 2 to 4 were not born on the date of accrual of the cause of action on 3-1-1942 i.e. the date of compromise and since the first defendant who was born by then did not question the transaction within the period of limitation i.e., three years from the date of his attaining majority, observing that the after born sons cannot take advantage of the Section 6 of the Limitation Act, 1963, and so their right to claim recovery of possession of their share stood extinguished by virtue of Section 26 of the Limitation Act, 1963. The same view was taken by the Madras High Court in Venkatesan's case (supra) and Subramanyam's case (supra), where it is held that if the person who is entitled to question the alienation, fails to question the transaction within time, the after born children cannot question the same in view of Section 8 of the Limitation Act, 1963.
26. In view of the ratio in the above decisions, failure of plaintiffs 1 and 2 to question Ex. B.16 within three years of their attaining majority debars plaintiffs 3 to 5 claiming their share in the property covered by Ex. B.16 and so I hold that the suit for recovery of item No. 4 of the plaint 'A' schedule is barred by time. The point is answered accordingly.
27. In view of my finding on the point for consideration, the appeal is allowed and the claim in respect of the item No. 4 of the plaint 'A' schedule also is dismissed with costs throughout.