Kuppuswami Mudali vs Thangavelu Mudaliar and Another

Somayya, J.—Plaintiffs-respondents filed the suit out of which this second appeal arises for a declaration that the alienation made by

Alamelu Ammal is not binding upon them. The properties belonged to one Ayyaswami Mudali who died in the year 1902 leaving a widow

Nagammal and two daughters Alamelu Ammal and Kuppammal. Nagammal died in 1924 and thereupon Alamelu Ammal and Kuppammal

inherited the property as the daughters of the last male holder. It is common case that some sort of division was effected between Alamelu Ammal

and Kuppammal and there is a question whether this division was only for convenient enjoyment or whether it was an absolute partition by which

the right of the survivor to recover the property on the death of the predeceased sister was also given up. This question has not been gone into for

two reasons: firstly that Kuppammal is not a party to the alienation and secondly that the matter can be disposed of without going into this question,

because assuming that the alienation was supported by consideration, Alamelu Ammal one of the daughters cannot by herself alienate the property

so as to be binding on the male reversioners after the death of Alamelu Ammal and Kuppammal. It is enough to refer to the decision of this Court

in Yelumalai v. Natesachari (1944) 1 M.L.J. 201 : ILR 1945 Mad. 35. which follows a decision of the Judicial Committee in Sri Gajapati

Radhamani v. Maharani Shri Pusapati Alakarajeswari . In this case Alamelu Ammal alone sold the property and therefore even if it was for a

necessity which is disputed by the other side, the alienation will not bind the ultimate reversioners. On this short ground the plaintiffs-respondents

are entitled to a declaration that the alienation by Alamelu Ammal under Ex. P-1 is not binding on them after the death of both Alamelu Ammal and

Kuppammal. The question whether the sale would be binding on Kuppammal in case she happens to survive Alamelu Ammal need not be decided

in this suit. If the division was an absolute one in the sense I have already indicated, then Kuppammal would have no right to recover the property

from the appellant after the death of Alamelu. The alienee would be entitled to enjoy the property at least till the death of Kuppammal. But if the

division was only for convenient enjoyment, then Kuppammal if she happens to survive Alamelu Ammal, can recover the property from the

appellant if she filed a suit within 12 years from Alamelu Ammal''s death. But whatever may be the right of the alienee as against Kuppammal, he

has no right as against the male reversioners, i.e., the daughter''s sons or any other persons who happen to be the actual reversioners after the

death of the two daughters.

The next question argued by Mr. Viswana the Aiyar the learned advocate for the appellant is that the suit is barred by limitation. He rightly urges

that the proper article of the Limitation Act applicable in this case is not Article 125 but Article 120. Article 125 does not apply because the

plaintiffs would not be entitled to the property if Alamelu Ammal was dead on the date of the suit. Article 125 runs thus:

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 an alienation of such land made by the female declared to be void except for her life or until her re-marriage.

In this case if Alamelu died at the time of, the alienation and if the plaintiffs were entitled to possession of the land on that date, then Article 125

would apply to a suit for a declaration that the alienation by her is void except during her lifetime or until re-marriage. But in this case if Alamelu

was dead on the date of the suit, the plaintiffs would not be entitled to possession, because there is Kuppammal. If the division between two sisters

was an absolute division, then the appellant himself would be entitled to possession of the property during the lifetime of Kuppammal and the

plaintiffs-respondents would not be entitled to possession on the date of the suit. If on the other hand, the partition was one for convenient

enjoyment, even then the plaintiffs would not be entitled to possession, because Kuppammal as survivor would be entitled to be in possession of

the property. Therefore, this contention of Mr. Viswanatha Aiyar is right. But the difficulty is that even accepting the argument of Mr. Viswanatha

Aiyar, the proper article of the Limitation Act would be 120; that is

A suit for which no period of limitation is provided elsewhere in this schedule

and the plaintiff would have six years from the date when the right to sue accrued. Here the two plaintiffs are the sons of Kuppammal. In the plaint

the first plaintiff is described as aged 20 and the second plaintiff as aged 15. If the first plaintiff was only 20 on the date of the suit, then clearly

Section 6 of the Limitation Act applies and the suit would be within time. But the defendant has averred in the written statement that the first

plaintiff was more than 22 years on the date of the suit and the question whether the first plaintiff was below 21 on the date of the suit has not been

tried. But that apart, even if we assume that the first plaintiff was over 21, the question would still remain whether the suit would not be saved by

Section 7 of the Limitation Act. In the present case, the two plaintiffs have a joint cause of action; in fact as Mr. Viswanatha Aiyar says if there is

only one cause of action which accrues to all the reversioners and the suit whether filed by the first plaintiff or the second plaintiff is a representative

suit the benefit of which will enure to all the reversioners alike. Therefore it is a joint right which accrued on the date of the alienation to both the

first and second plaintiffs. The second plaintiff had been born by the date of the alienation and therefore he also got a right to question the alienation

made by Alamelu Ammal. That being so Section 7 clearly applies. In that case unless the first plaintiff was capable of giving a valid discharge on

behalf of his younger brother, time will not begin to run against either of the plaintiffs. If the true view is that it is not a joint cause of action but

separate causes of action, each reversioner gets a separate right to question the widow''s alienation. Then the consequence will be that the second

plaintiff''s right which on this hypothesis is a separate cause of action will not be barred even though the first plaintiff is barred and a declaration

obtained by the second plaintiff will be on behalf of all the reversioners and will benefit the first plaintiff equally along with the other reversioners

who are not joined in the suit.

It is then argued by Mr. Viswanatha Aiyar on the authority of the Full Bench decision in Challagundla Varamma and Others Vs. Madala

Gopaladasayya and Another, , that the second plaintiff had no independent cause of action and that if the first plaintiff''s right is barred, the second

plaintiff is also barred. In that decision the learned Judges had to deal with a case where the person who filed the suit was not born on the date of

the alienation and the right of the existing reversioner to file a suit had become barred by lapse of time. The plaintiff who was born long after the

alienation said that he had independent cause of action on his birth and that he being a minor, his rights are saved until he himself attains majority

and more than three years elapsed after that. It is this contention that was negatived by the Full Bench decision in the above case. That is not an

authority for the position that even if the two reversioners were born on the date of the alienation and one of them continues to be a minor on the

date of the suit, he is nevertheless barred, because another reversioner who was also alive on the date of the alienation waited until his right became

barred. As pointed out by me in Ramayya v. Veerabadrachari (1944) 2 M.L.J. 117, a right which two sons of a daughter acquire in the maternal

grandfather''s property is a joint right, because they take the property with mutual rights of survivorship; but it is not a coparcenary right in which

case alone it could be said that the elder brother has the right of giving a valid discharge on behalf of his younger brother. In that case two

daughters'' sons inherited their maternal grandfather''s property and the suit was filed more than three years after the elder attained majority. That I

held would not bar the suit either as against the younger brother or against the elder brother. That is the effect of Section 7. If that would be so as

regards a suit filed by the plaintiffs for possession after the death of Alamelu Ammal and Kuppammal, the answer must be the same where the suit

is filed before the reversion opens and that for a declaration that the alienation made by their mothers is not valid and binding on them. In either

case it is a joint right. One of them alone is not entitled to give a discharge without the concurrence of the other as it is not a coparcenary right and

hence u/s 7 the entire suit is within time.

The second appeal fails and it is dismissed with costs. (No leave.).