Applicability of twelve years’ rule in minor’s right to avoid alienation made by guardian.

This appeal was directed to be posted before a Bench by one of us to consider the correctness of the decision of a single Judge of this Court in Ramiah v. Brahmiah1.

The question raised is one of limitation. The plaintiff who was unsuccessful in the two courts is the appellant in this second Appeal. She filed the suit for a declaration that the alienations made by Kokilambal, the 9th defendant, were not valid and did not bind her. She also sued for possession of the suit properties with future mesne profits and costs. The properties in suit originally belonged to one Doraiswami Reddi. He died in 1929, and the properties devolved on Raghava Reddi, his son by his first wife, and after Raghava Reddi’s death they devolved on Sitharama Reddi, a minor son of Doraiswami Reddi by his third wife, Kokilambal (the 9th defendant). The minor was born in 1926. During his minority the 9th defendant, Kokilambal as his guardian effected two alienations, which are the subject-matter of the suit, one in favour of Appaji Reddi under Exhibit B-3, dated 17th February, 1933 and the other in favour of the third defendant of the B-3 schedule properties, but no sale deed was produced as the third defendant, the alienee, remained ex parte. Appaji Reddi in his turn alienated the properties; but we are not concerned with this. Sitharama Reddi died in October 1936 still a minor. The plaintiff is the sister of Sitharama Reddi, and she sued in the first instance as a presumptive reversioner of the estate; but during the pendency of the suit Kokilambal died on 29th December, 1944, and so a prayer for possession was also included. The trial Judge recorded findings on all the issues in the case, but dismissed the suit on the ground that it was barred by limitation. On appeal the learned District Judge dealt only with the question of limitation, and on that point he agreed with the decision of the trial court and confirmed the decree of the trial court dismissing the suit.

In this second appeal therefore the only question that arises for consideration is one of limitation. The suit was admittedly filed within 12 years from the date of the alienation; but it was held by the courts below that as Sitharama Reddi died while a minor, under section 6(3) of the Limitation Act the suit should have been instituted within three years from the date of the death of the minor. As the suit was filed on 18th February, 1943, more than three years from the date of death of Sitharama Reddi it was held that the suit was barred by limitation. In support of the view taken by the courts below the decision of a single Judge of this Court in. Ramiah v. Brahmiah1, was relied on, in which limitation was counted from the date of the death of the minor under section 6(3) of the Limitation Act. The question is whether the view taken by the courts below is correct. On behalf of the appellant it was claimed that the suit was within time as it was filed within 12 years from the date of the alienation and even within three years from the date when the minor would have attained majority, had he been alive. This is of course on the basis that Article 44 of the Limitation Act applies to the case.

Article 44 of the Limitation Act was introduced for the first time by Act XV of 1877. Under Act IX of 1871 there was no special period prescribed for a suit by a ward to set aside an alienation by a guardian. It has been held that the Article 44 applies only to an alienation by a legal guardian and not by a de facto guardian. It has also been held that though the Article in terms is confined to a suit by a ward who had attained majority to set aside a transfer of property by his guardian, it applies also to a suit to recover possession of the property alienated by the guardian, as in such an event it is incumbent upon the ward to set aside the transfer, that is, to remove the legal impediment in the way of his recovering possession, and if he fails to do that within the period allowed by law, name