An after-born son can take advantage of the extended period of limitation available to a minor son living at the time of alienation under the doctrine of overlapping.

GOPAL RAO EKBOTE, J.

( 1 ) THESE two appeals arise out of O. S. No. 220 of 1959. These appeals are filed against the judgment of the First Additional Subordinate judge, Vijayawada, given on 19/07/1962.

( 2 ) THE necessary facts in order to appreciate the contentions raised before me may be briefly stated. Late Sri Velagaloti Dasaradharamayya was an eminent advocate and Public Prosecutor at Vijayawada. He acquired considerable immovable as well as movable properties from the earning of his practice as an advocate. He executed a will on 24-11-1933 which was subsequently amended by a codicil dated 14-9-1934 whereby he disposed of his personal as well as ancestral properties. In so far as his self-acquired property was concerned, he gave life interest to his three sons and the remainder was given to the grandsons. In the ancestral properly the three sons, since they were coparceners, they got the property in entirety after the death of the said Dasaradharamayya. Kodandaramayya was one ofof the three sons. This Kodandaramayya had taken to bad ways. He was addicted to drink and debauchery. The property which fell to the share of Kodandaramayya consisted of about 50 acres of land as well as some cash and jewellery. within one year of his fathers death which occurred on 3-5-1935, Kodandaramayya found himself in need of money. He, therefore, started selling the property. Under Exhibit A-43, dated 11-5-1938, he sold 4 acres and 4 cents of land situated in Demarcation No. 382/2 of Velagaleru village in favour of Sri Venugopalaswami Temple of Velagaleru of which Kodandarammayya himself was the sole trustee, D. W. 18 being the present trustee. The first plaintiff, who is the son of Kodndaramayya, was born on 13/05/1938. The second plaintiff was born subsequently on 23/08/1954. Kodandaramayya died on 31-12-1958. Dasaradharamayya had already died on 3-5-1935.

( 3 ) THE plaintiff, who are the sons of Kodandaramayya, instituted the present suit for a declaration that the alienation made by their father in favour of the temple under Exhibit A-43 was for an avyavaharika debt and therefore the sale deed is voidable. It was alleged that Kodandaramayya who was trustee for the temple had misappropriated the temples monies which he used for his illegal and immoral purposes and in consideration of this misappropriated amount, he executed the sale deed, Exhibit A-43. It is on those facts that the plaintiffs contended that the sale is not binding upon them. They, therefore, wanted two-thirds share of their from the property conveyed to the temple under Exhibit A-43.

( 4 ) THE defendants denied that the sale is voidable. They further alleged that the suit is time-barred in so far as the second plaintiff was concerned. They further claimed that the consideration for the sale was not avyavaharika debt. The sale is binding upon the plaintiffs.

( 5 ) UPON these pleadings, the trial Court framed several issues. Along with the present suit, these very plaintiffs instituted another two suits, O. S. Nos. 218 and 219 of 1959, to avoid the other alienations made by their father. These three suits were tried together by the Second Additional District Munsif, Vijayawada. Although issues were separately framed, with the consent of the separately framed, with the consent of the parties, evidence was recorded in one suit, O. S. No. 218 and 1949 and was agreed to be treated as evidence in the other two suits also.

( 6 ) UPON this material, the trial Court held that the sale is not binding on the plaintiffs because in consideration of the misappropriated amount the father of the plaintiffs had executed Exhibit A-43. The trial Court also found that the suit, in so far as the first plaintiff is concerned, is within time, but it is barred in so far as the second plaintiff is concerned. In view of the finding in regard to the limitation, the trial Court dismissed the suit as against the second plaintiff but gave a decree in favour of the first plaintiff to the extent of his o

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