Judgment

B. K. Mukherjea, J. - This appeal is directed against an appellate judgment of a Division Bench of the Madras High Court dated 12-1-1948, reversing in part, a decision of the Subordinate Judge of Nellore passed in O. S. No. 3 of 1940.

2. To appreciate the material facts of the case and the controversy that now centres between the parties, it would be convenient to refer to a short genealogy which is given below :

3. The properties in dispute which are described in Sch A to the plaint admittedly belonged to one Narayanappa who was the father of the paternal grandmother of the plaintiffs. Narayanappa died intestate sometime before 1884 leaving him surviving his wife Chanchamma and a daughter named Venkata Narasamma. Narasamma was married to one Pitti Rangayya and they had a son named Venkatadri, who was the father of the plaintiffs. Chanchamma died in March, 1938 and the plaintiffs aver that they being the heritable bandhus of Narayanappa as the daughter s son s sons of the latter and there being no nearer heir in existence, they became entitled to all the properties left by Narayanappa on the death of his widow. It appears that on 22-2-1894 Chanchamma executed, what has been described as a deed of release, in favour of her daughter Narasamma and her son-in-law Pitti Rangayya, under which the entire estate of Narayanappa came into the possession of the latter. After the execution of this document, the daughter and son-in-law of Chanchamma began to deal with the properties left by Narayanappa as their own and entered into various transactions on that footing:

Pitti Rangayya died in 1914 and Narasamma followed him in 1926. There are six items of property comprised in Sch. A to the plaint. Of these items, 4 and 5 were sold by Venkata Narasamma along with her son, the father of the plaintiffs, on 9-7-1922 to defendant 5 and the father of defendants 6 to 9 for a sum of Rs. 6,500 Again, on 26-10-1929, when both Narasamma and the plaintiff s father were dead, item I of Sch. A was sold by the mother of the plaintiffs as their guardian to defendant 1 for a consideration of Rs. 33,000. Defendants 2 and 3 are the undivided sons of defendant 1. There are other transfers in favour of other defendants in the suit but they are not the subject matter of the appeal before us.

4. The plaintiffs allegations in substance are that these alienations are not binding of them as the so-called deed of release executed by the widow could not and did not operate as a deed of surrender and any transfer effected on the strength of this deed by Venkata Narasamma or her son, Venkatadri or even on behalf of the plaintiffs by their mother as guardian, could not be operative after the death of the widow. As these transfers were made during the life-time of Chanchamma and without any legal necessity, the plaintiffs as actual reversioners were not bound by them and they are entitled to recover possession of the properties by evicting the transferees. It was for the recovery of possession of these properties that the present suit was brought and there was a claim for mesne profits as well from the date of the widow s death to the date of delivery of possession.

5. The defence of the defendants who are interested in the properties mentioned above, were really of a three-hold character. It was contended in the first place that the plaintiffs were not the next reversionary heirs of Narayanappa and consequently were not entitled to succeed to the estate of the latter on the death of the widow. The second contention was that the deed of release operated as a surrender of the widow s estate in favour of the daughter who was the next reversioner and although by such a surrender the daughter could get only a limited estate which she would have been entitled to on the death of the widow, yet as the daughter died in1926, the present suit which was instituted more than 12 years after the date of death, was barred by limitation. The third plea was that in any event, these a