B.R. Devados vs Ponnammal and others

Srinivasan, J.—The plaintiff is the son of one Ramachari who died in 1959. The second and third defendants are his brothers. The plaintiff

sued for a partition of his one fourth share in the suit property, which he claimed belonged to the joint family of which the members were the

plaintiff, defendant 2 and 3 and the fourth defendant. The fourth defendant is the first cousin of Ramachari, the plaintiff''s father. It appears that the

property in question was sold by Ramachari to the fourth defendant in 1934. According to the plaintiff, the property had fallen to Ramachari by

survivorship, and the father Ramachari could not sell the property except for necessity or benefit or for the discharge of any antecedent debt, none

of which obtains in the case. The sale in 1934 was an oral sale, which, however, was confirmed by a written document executed in 1957 by

Ramachari, the plaintiff''s father, and defendants 2 and 3, his brothers. It may also be stated that the plaintiff was born in 1939, long after the

impugned sale of 1934. But plaintiff claims that he has nevertheless the right to question the alienation, his brothers, the second and third

defendants, having been in existence on the date of the impugned sale. The contesting defendant is the fourth defendant. According to him, and

these facts are not disputed, the grandfather of the plaintiff, one Venkatachalapathi Iyer, had two brothers. The fourth defendant is the son of one

of the brothers. The third brother, Perumal, became an insolvent. In the sale of Perumal''s properties, Ramachari, the father of the plaintiff, one

Subbarama Iyer, the deceased brother of Ramachari, and the fourth defendant himself jointly purchased the properties benami in the name of one

Krishna Iyer. The fourth defendant contributed a sum of Rs. 274 for this purchase. Later, the nominal purchaser Krishna Aiyar executed a release

in favour of the three real owners. Subbarama Aiyar died in 1948, and his share passed to Ramachari by survivorship. The result was that

Ramachari and the fourth defendant were the joint owners of this property. Ramachari agreed to convey the suit property, which is D. No. 27, to

the fourth defendant, the consideration being the contribution made by the fourth defendant for the purchase of the insolvent''s property. Virtually,

therefore, Ramachari obtained for the family the fourth defendant''s interest in that property which was purchased in the court auction in

consideration of which he conveyed D. No. 27 to the fourth defendant. Ever since then, and this was in 1934, the fourth defendant had been in

enjoyment of the property, getting the registry transferred in his name and paying the taxes therefor. The consideration was valid and the sale was

also claimed to be for the benefit of the family. This oral sale of 1934 was confirmed by the execution of a regular document in 1957 by Ramachari

and by defendants 2 and 3, his sons, who had attained majority by then. At the same time, the fourth defendant executed a release document giving

up his interest in the item purchased in court auction.

The trial court was satisfied that the oral sale of the year 1934 is true. Indeed, the plaintiff himself did not deny that transaction. It further held

that in whatever manner the fourth defendant might have come into possession of the property, there was no doubt that from 1934 down to the

present day, he had been in exclusive possession thereof and had perfected title by adverse possession. It held further that the plaintiff was born

long after the sale. His two brothers, the second and third defendants, became majors in 1948 and 1950 respectively. They were competent to

question the validity of the transaction and and had not chosen to do so. Their right to question the transaction came to an end long ago. The trial

Court was of the view that in those circumstances the plaintiff could not claim a further extension of the period of limitation in his favour and

accordingly that the suit was barred by limitation. On the question of the binding nature and the validity of the sale, the conclusion was in favour of

the fourth defendant.

The plaintiff appealed against the dismissal of his suit. The lower appellate Court, while holding that the suit was maintainable, found that the suit

was barred by limitation. On all ether questions he found against the plaintiff appellant. It was satisfied that there was virtually an exchange of two

properties one belonging to the family, D. No. 27 and the other purchased in Court auction, D. No. 27-A, and that having regard to the prevailing

prices at that time, the consideration was not at all inadequate. It upheld the fourth defendant contentions and dismissed the suit.

Mr. K.N. Balasubramaniam, learned Counsel for the plaintiff-appellant, urges that there was no proof of necessity justifying the sale of joint

family property. He also attacks the finding of the Courts below that the plaintiff''s suit is barred by limitation. According to him, notwithstanding the

fact that the plaintiff is a son born to his father after the date of the impugned alienation, he cannot be denied the right to attack the alienation by the

father, provided that he can do so on grounds permissible under the Hindu Law. Learned Counsel does not deny that if the plaintiff had been the

only son of his father, who was born after the date of the alienation, his right to attack the alienation cannot be maintained. But he urges that on the

date of the alienation he had two brothers who are the second and third defendants, who were minors, and so long as the right to attack the

alienation was available to these minor sons, his elder brothers, he too would be entitled to invoke that right, notwithstanding that he is son born

after the date of the impugned alienation. To the extent this argument supports the claim to the maintainability of a suit by a junior member of a joint

Hindu family questioning an improper alienation effected by his father, the joint family manager, it can no doubt be accepted. But the further

question arises as to the period of limitation that is available to a person in the position of the plaintiff. Mr. Balasubramaniam in effect claims that

every minor son would have an extended period of limitation till he attains the age of 21 years, despite the fact that an elder son, who might have

exercised a similar right, had failed to exercise it till he attained 21 years of age. In effect therefore, if a father has a number of sons, an alienation

effected by the father at a time when ht had only one son could be continued to be attacked by every son of his till the last of them attains the age

of 21 years. Put in that manner, the proposition appears to be exceedingly unsound to my mind. To restate the facts, the plaintiff himself does not

dispute that the property in question was sold in 1934, though the confirmatory document was executed only in 1957. Nor is it denied that during

this lengthy interval, it was the fourth defendant who was openly enjoying the property as the absolute owner thereof. That he had put up a

construction thereon and had mortgaged it even before the document conveying the site to him was executed in 1957 is admitted. It is also not in

dispute that the two eider brother is of the plaintiff became majors in 1948 and 1950 respectively, and giving them the extended period of three

years after they attained majority, in so far as they were concerned, any attack upon the impugned transaction would have become unavailable by

reason of the law of limitation by 1953 at the latest. The question is whether the plaintiff, who was born in 1939, five years after the date of the

alienation, would be entitled to the period of limitation ending with three years after he attained majority, that is, upto 1960.

In Natarajan v. Karumana Goundor 76 L.W. 199 the question arose in a slightly different form. There, in a suit by a son seeking to set aside an

alienation by the father, it was established that there was an elder son who acted as the manager of the family both in law and in fact, and that being

so, he became a person competent to give a valid discharge under S. 7 of the Limitation Act, and the failure of such a person, who became the

manager, to set aside the alienation within three years of his attaining majority was held to operate as a bar against the plaintiff and the younger

brothers as well. The decision of the Privy Council in Jayabeer Singh v. Udaya Prakash 53 I.A. 36 = 48 All. 152 though it apparently supports the

claim of the plaintiff in the present case, really proceeded upon other grounds. There it was held that a suit brought by the younger son within three

years of attaining majority to avoid a sale by the father is not barred by limitation, although the elder son had attained majority more than three

years earlier and had taken no steps to question the alienation. The facts would appear to show that both the sons existed at the time of the

impugned alienation. It was not a case where the elder son occupied a position in which he could give a valid discharge under S. 7 of the Limitation

Act, in which event, the failure of the elder son to question the transaction may well defeat the right of the younger son as well. The real principle

governing such cases is clearly indicated in AIR 1945 1 (Privy Council) . That was a case where the right of a son born after the impugned

alienation was considered. The Judicial Committee while stressing the fact that a member of a joint Hindu family must be content with the family

estate as he finds it at his birth, or at any rate, he cannot complain of anything done before the period of gestation, lay down that there is an

execution to this principle, which is that if the child which objects to the alienation comes into existence or is conceived after the alienation, but

there is already a child born before, or is conceived before the alienation, the overlapping of the two lives would enable the later born son to

contest the validity of the father''s act. The Judicial Committee, however, did not think it necessary to determine the exact extent of the right of the

after born son, in the light of the law of limitation. But if there is overlapping of the lives as indicated, then the after born son would obtain the right

to contest the validity of the father''s alienation, but his right arises solely by reason of the fact that there is already a child in existence who was

born or conceived before the impugned alienation. In Visweswara Rao v. Surya Rao A.I.R 1936 Mad. 440 : 43 L.W. 349 a Bench of this court

specifically laid down thus:�

Whether or not an after born son can effectively join with existing sons to attack or resist an alienation, the cause of action or the right to defend is

a cause or right that was in those members of the family that were alive at the time of the alienation and were not consenting. The right to attack

begins to exist at the moment of the alienation and at the highest exists in all members of the family that exist while such right of action is in tact. If

that right of action is lost by those members of the family who had it when it arose, i.e., those coparceners who were in existence and not

consenting at the time of the alienations, if that right of action is lost by them by the operation of the statute of limitation, it is lost to the family and

does not live on in some child who becomes a coparcener even during the life time of the coparceners that existed when the alienation took place

where such coparcener''s cause of action has been barred. And by parity of reasoning, just as where the right of action possessed by the

coparceners existing at the time of the alienation if barred is lost, not only by them but also by any member of the family later born if they allowed

the period of limitation to expire, so it is also lost if those persons who were in existence at the time of the alienation lost that cause of action by

death before there came into existence the after born child, for the after-born child has got no right to action in himself, no individual and separate

cause of action that springs up immediately he is born; but his right to contest, if any, is derived from the right that those in existence at the time of

the alienation who were not consenting had and, that right is lost to him when it is lost to them, and it is lost to them when they die, or when they

permit the period of limitation to expire.

The principle of this decision proceeds on the basis that a non-consenting member of a coparcenary gets a right to attack an alienation the

moment the impugned alienation is effected. That right continues and comes to an end with the expiry of the period of limitation, for when once the

period of limitation starts, no subsequent disability or inability to sue would stop it. The right that is available to the non-consenting coparceners

could also be exercised by a son born after the alienation, but this decision lays down that that right is co-existent with the right of other non-

consenting coparceners. It is not an individual or separate right that the afterborn son gets. If that should be so, it would follow that when once the

cause of action had arisen, that is to say, the impugned alienation, time begins to run. If on the date of the impugned alienation, there is more than

one person, let us assume both minors, existing, at the best, it may be said that the period of limitation will extend up to three years after the

attainment of the majority of the youngest of them. The right to attack the alienation which in those circumstances is available to an afterborn son

cannot claim a right in his own person upto the date ending with three years after he attains majority. That is the clear purport of this decision. If this

decision is applied, it is obvious that the period of limitation for attacking the impugned alienation expired in or about 1953, when the younger of

the two defendants, defendants 2 and 3, attained the age of 21 years.

In this view, against which no authority has been cited, there is no doubt that the courts below were right when they held that the suit was barred

by limitation.

It is unnecessary to consider whether the alienation was supported by necessity. However, looking at the matter in the light of the circumstances

of the family in 1934 and considering also that the transaction was among the members of the family and that it was executed not only by the

plaintiffs'' father, Ramachari but also by his brother Subbarama Aiyar, who were members of a joint family at that time, I am inclined to agree with

the view taken by the Courts below that the sale was certainly for the benefit of the family. At that date, the plaintiff''s father, the fourth defendant

father and Subbarama Aiyar, the plaintiff''s uncle had jointly purchased an item of property which certainly did not become joint family property.

The fourth defendant had contributed towards that purchase and by entering into the impugned alienation, the claim of the fourth defendant in that

item of property so purchased was liquidated and the property jointly purchased in that manner became the exclusive property of the plaintiff''s

family. The two adult members, the plaintiff''s father and the plaintiff''s uncle, who were parties to the transaction, are now dead. That property

itself had belonged to Perumal, the plaintiffs grand-uncle, and had been brought to sale in insolvency proceedings. Apparently, with a desire to get

back the properties which originally belonged to the family but which would otherwise be lost to them, the plaintiff''s father and his uncle entered

into this transaction, thereby also discharging a debt of Rs. 274 being the share of contribution of the fourth defendant. In these circumstances it is

too much at this distance of time to be asked to accept the plaintiff''s claim that the sale was in excess of the powers of the father of the joint Hindu

family. Added to these is the fact that the fourth defendant has been in possession of the property for over 25 years dealing with the property as his

own. Though that right might not affect the right of a junior member of the coparcenary to challenge the alienation, that fact also can be considered

in the light of necessity or benefit. The result is the contentions of the appellant fail. The appeal is dismissed with costs. No leave.