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Andhra Pradesh High Court
Kotha Seshamma - Appellant
Versus
Pittala Venkayya - Respondent
Decided On : 08-10-56
HINDU LAW - COPARCENARY PROPERTY - ALIENATION BY FATHER - RIGHT OF AFTER-BORN SON TO CHALLENGE - LIMITATION - ARTICLE 126 OF THE LIMITATION ACT - SECTION 6 OF THE LIMITATION ACT - WHETHER AFTER-BORN SON CAN TAKE ADVANTAGE OF THE EXTENDED PERIOD OF LIMITATION AVAILABLE TO THE COPARCENER IN EXISTENCE AT THE TIME OF THE ALIENATION.
Fact of the Case:
The plaintiffs filed a suit for recovery of possession of land sold to them by defendants 1 to 5 under different sale deeds on 11th February, 1946, or in the alternative for a decree directing a refund of the price of Rs. 500, paid to the vendors. The trial Court decreed the suit in respect of an 1/5 share of the lands and directed defendants 1, 4 and 5 to refund Rs. 400, to the plaintiffs in respect of the remaining 4/5th share not decreed to them. On appeal, the lower appellate Court granted the plaintiffs a decree for 4/5th share of the lands and Rs. 100, by way of refund in respect of the remaining 1/5th share denied to the plaintiffs.
Finding of the Court:
The court held that an after-born son has an independent right to sue on the cause of action which arose when the alienee took possession under the father's invalid alienation and his suit must be brought within 12 years under Article 126, unaffected by any extended period of limitation available under section 6 of the Limitation Act to a coparcener existing at the time of the alienation.
Issues: 1. Whether an after-born son can challenge an improper alienation of joint family property by his father? 2. Whether the right of an after-born son to challenge an improper alienation of joint family property by his father is barred by limitation? 3. Whether an after-born son can take advantage of the extended period of limitation available to the coparcener in existence at the time of the alienation under section 6 of the Limitation Act?
Ratio Decidendi: 1. An after-born son can challenge an improper alienation of joint family property by his father provided there was in existence at the date of the alienation some coparcener who could challenge it and he had not consented to the alienation or ratified it before the after-born son was begotten. 2. The right of an after-born son to challenge an improper alienation of joint family property by his father is barred by limitation if he does not file a suit within 12 years from the date the alienee takes possession. 3. An after-born son cannot take advantage of the extended period of limitation available to the coparcener in existence at the time of the alienation under section 6 of the Limitation Act.
Final Decision: The court reversed the decree of the lower appellate Court and restored that of the trial Court with costs here and in the lower appellate Court.
( 2 ) THE facts, so far as they are material to the point of law argued before me are these. Defendants 2 to 5 are the sons of the first defendant, who sold under Exhibit B-1, 12 acres and 75 cents of ancestral lands to one A. Simhayya on 30th January, 1925, for Rs. 1,150. At the time of the sale, the 2nd defendant was in his mother s womb and defendants 3, 4 and 5 were born years later. On attaining majority the 2nd defendant brought Original Suit No. 61 of 1943 on the file of the Court of the Subordinate judge, Guntur, for recovery of his 1/5th share of the lands alienated by his father impleading his father (present first defendant) his three minor brothers (present defendants 3 to 5) and the successors-in-interest of the alienee, A. Simhayya (present defendants 6 to 12) as defendants to that suit. On 17th February, 1945, a preliminary decree for partition was passed awarding the present 2nd defendant an 1/5th share of the lands, the alienation by his father under Exhibit B-1 having been held not to be binding on him. No relief was granted to defendants 3 to 5 in the suit. There was also no division of the lands by metes and bounds. On nth February, 1946, the father and sons, defendants 1 to 5 purported to convey to the plaintiffs under different sale deeds the entire extent of the lands sold under Exhibti B-1. Defendants 3 to 5 being minors at the time, their mother acted as their guardian and effected the sales in favour of the plaintiffs. It is clear that so are as the 1/5th share of the first defendant is concerned, it passed to A. Simhayya under Exhibit B-1, dated 30th January, 1925 and the subsequent sale dated 11th February, 1946, by the first defendant could not convey any title to the plaintiff. It is equally clear that the plaintiffs would be entitled to the 15th share of the 2nd defendant, who obtained a decree for that share in O. S. No. 61 of 1943 and who sold his interest to the plaintiffs under Exhibit A-3 on 11th February, 1946. The question in Second Appeal is whether the plaintiffs would, in addition, be entitled to the 3/5th share of defendants 3, 4 and 5 purported to be sold by their mother acting as their guardian. Though defendants 3, 4 and 5 were born some years after the sale by their father still, having regard to the fact that their elder brother, the 2nd defendant, was in his mother s womb on the date of the alienation, they would be entitled to impeach the sale and recover their shares of the family property. In Vasireddi Balachandra v. Lakshminarasimham, (1940)1 M. L. J. 820 : I. L. R. (1940) Mad. 913, 919, 922, the learned Judges, relying on the decision of the Privy Council in Lal Bahadur v. Ambika Prasad, (1925) L. R. 52 I. A. 443 : I. L. R. 47 All. 795 (P. C.), were inclined to take the view that a co-parcener born subsequent to an alienation of joint family property is not entitled to challenge the alienation, even though other co-parceners entitled to object were alive at the date of the alienation and had not consented to and validated the alienation. In other words, the learned Judges were of the opinion th
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