Averment offering to return the benefit is necessary.

(Second Appeal against the judgment and decree dated 16.8.1996 made in A.S.No.41 of 1996 on the file of the Subordinate Judge, Kallakurichi confirming the judgment and decree dated 9.10.1991 in O.S.No.195 of 1987 on the file of the Additional District Munsif, Kallakurichi.)

The defendant in the suit in O.S.No.195 of 1987 on the file of the Additional District Munsif, Kallakurichi is the appellant herein. The respondents filed the suit for declaration and recovery of possession of the suit property with mesne profits and costs. The appellant resisted the suit by filing the written statement and the trial court having considered the evidence and arguments of both sides decreed the suit as prayed for and granted three months time for delivery of possession of the suit property to the respondents herein. Aggrieved by the said judgment and decree of the trial court, the appellant preferred the appeal before the Subordinate Court, Kallakurichi in A.S.No.41 of 1996. The learned Subordinate Judge after analysing the recorded evidence in the light of the judgment and decree passed by the trial court dismissed the appeal with costs confirming the findings rendered by the trial court. Hence the Second Appeal.

2. The parties to this Second Appeal may be referred to hereunder as they were arrayed before the trial court for the sake of convenience.

3. The brief facts necessary for the disposal of this Second Appeal may be briefly stated as under:-

a) The respondents herein/plaintiffs filed the suit against the appellant herein/defendant for the said reliefs on the ground that the suit property was purchased by the mother of the plaintiffs on 2.6.1969 when the plaintiffs were minors, and that she was in possession and enjoyment of the same in her own right and on behalf of her minor children. While so, despite the fact that the father of the plaintiffs was alive, the defendant obtained the said sale deed from the mother of the plaintiffs fraudulently and trespassed into the suit property. Hence, they have filed the suit for declaration and recovery of the suit property with mesne profits at the rate of Rs.3,000/- per annum.

b) The defendant resisted the suit on the ground that since the father of the plaintiffs neglected the family, the mother alone was managing the affairs by purchasing and selling properties for and on behalf of the minor sons namely, the plaintiffs. In fact, she had sold the property on 3.3.1976 to the defendant for valuable consideration and immediately thereafter on 6.3.1976, she purchased another property out of the said sale proceeds in the name of the then minor plaintiffs for Rs.7,000/- and also dug a well in the said land. Hence the defendant resisted the suit on the ground that the said transactions were entered into by the mother of the then minor plaintiffs for their benefit and that therefore the suit filed beyond time is barred by limitation. In the above circumstances, the courts below rendered the judgments and decrees as referred to above.

4. Heard Mrs.Hema Sampath, learned counsel appearing for the appellant and Mrs.Mythili Suresh, learned counsel appearing for the respondents.

5. Learned counsel for the appellant has submitted the following in support of the appeal:-

The courts below failed to note that while the natural guardian of the minors, their father, neglected the family, their mother was the only guardian available to look after the affairs for and on behalf of the minors. Similarly, both the courts below failed to render a finding that the sale consideration was utilised by the mother for the benefit of the minors to purchase another property (vide) Ex.B-2, sale deed dated 6.3.1976, within three days from the date of sale in favour of the appellant. The lower appellate court erred in rendering a finding that the suit was not barred by limitation even after holding that the first respondent came to court three years after attaining majority.

6(a) In the above circumstances, the following subs