Suit by minor filed within the period of limitation hence was maintainable.

F.M.Ibrahim Kalifulla, J.

The second plaintiff is the appellant. The appellant and the 12th respondent failed O.S. No.100 of 1978 on the file of the Subordinate Judge. Tirunelveli on 25.3.1978 for partition and separate possession of the plaintiffs 13/24th share in the suit schedule properties and for directing the first respondent herein to pay the plaintiffs 13/24th share on the future mesne profits from the date of plaint till the date of partition of their share.

2. As per the plant averments, the suit properties comprising of two houses, originally belonged to one Hameeda who was the first wife of the first defendant and who left two daughters namely the appellant herein and one other daughter by name Firoz Banu. The first plaintiff/12th respondent herein is one of the sisters of late Hameeda. Smt.Hameeda had one other sister by name Lateefa who died in 1972. The respondents 5 to 9 are the heirs of Lateefa. On the death of late Smt. Hameeda, the suit properties devolved upon the first respondent herein to an extent of 1/24th share, the sister Lateefa to an extent of 1/24th share, the first plaintiff/12th respondent herein to an extent of 1/24th share, the appellant, the second plaintiff to an extent of 1/3rd share and her sister Firoz Banu for another 1/3rd share. According to the appellant, her sister Firoz Banu executed a registered release deed on 19.2.1968 relinquishing her share in the suit schedule property in favour of the appellant and the first respondent herein. Therefore, according to the appellant, her share got increased from 1/3rd to 1/2 and the first respondents share also increased from 1/4th to 5/12th.

3. It is alleged that after the death of Hameeda Bi, the mother of the appellant and the first wife of the first respondent, the first respondent married a second wife, that the first respondent sold away the entire suit properties under Ex.A-4 to the fourth respondent who is none other than the sister of his second wife. Subsequently, the fourth respondent is stated to have sold away the suit properties in favour of the second and third respondents herein on 18.1.1978 as per Ex.A-6. According to the appellant, Exs.A-4 and A-6 are sham and nominal documents and the transactions were void.

4. Respondents 1 to 4 who were the defendants in the suit resisted the claim of the appellant and the 12th respondent contending that the alienation under Exs.A-4 and A-6 were valid and that the suit by the appellant was barred by limitation. It was also contended on behalf of the respondents 1 to 4 that the first plaintiff and the other sister of Hameeda namely Lateefa relinquished their rights in favour of the first respondent, appellant and Firoz Banu daughter of Hameeda.

5. On the basis of the abovesaid pleadings, the trial Court framed five issues for consideration. On the first issue namely whether the alleged oral relinquishment made by first plaintiff in favour of Firoz Banu and the second plaintiff, the appellant herein was true. The trial Court held that the release relied on would amount to transfer of right in immovable property should have been in writing and registered one. Since it was not done so, the same was not valid. On the next issue namely, whether sale by the first respondent herein in favour of the 4th respondent herein and in turn by the fourth defendant/ fourth respondent in favour of respondents 2 and 3 defendants 2 and 3 were sham and nominal, the trial Court found that as the evidence would disclose the title and possession passed on to defendants 2 and 3. Under valid consideration and therefore they are not sham and nominal documents and they were valid. On the third issue, namely, whether the sale by the first defendant is void one or voidable one, the trial Court found that Ex.A-4 as far as the transfer of shares of the appellant was concerned was a voidable one and not void document. On the fourth issue namely, whether the suit was not maintainable without a prayer for setting aside