Alienation of co-parcenary property of the minors by mother after death of father held, void.

1. An interesting question of law relating to limitation arises in this second appeal at the instance of the legal representatives of deceased second defendant in the suit. Respondents 1 and 2 and their father Arumugham constituted members of a joint family and the plaint A schedule properties belonged to that family. In 1949 Arumugham died leaving behind him his sons, respondents 1 and 2 and his widow, the third respondent. According to the case of respondents 1 and 2, after the death of Arumugham, their mother, the third respondent, did not look after the family and did not attend to the family affairs, but launched a programme of alienating the family properties. Defendants 2 to 9, according to the plaintiffs, were such alienees and those alienations were not binding on the sons, respondents 1 and 2 herein, who were minors. Respondents 1 and 2 characterised these alienations as void ones and prayed for partition and separate possession after setting aside the alienations in favour of the defendants. Though there were several alienations which were so challenged by respondents 1 and 2 in the suit, what survives in this second appeal is only the alienation in favour of the second defendant dated 10th July, 1957 by the third respondent herein, who is the mother of the respondents 1 and 2. It would therefore suffice to notice the defence of the second defendant to the suit. According to him, the first respondent was over 26 years of age and the second respondent was of 22 years of age on the date of the institution of the suit and the suit not having been filed within three years of their attaining majority, is barred by limitation. In addition, a plea was also raised by the second defendant that the third respondent executed a registered mortgage deed on 24th March, 1950 in favour of one Nallan Padayachi to discharge the debts incurred by her husband. In order to discharge these debts, the sale of items 1 and 2 of the plaint A schedule properties was effected by the 3rd respondent herein for a sum of Rs. 750. The second defendant further claimed that it was the 3rd respondent who was looking after the family and as the income from the family properties was not sufficient to maintain the family, the debts were incurred and the alienations were therefore for the benefit of the family. A plea of collusion between respondents 1 and 2 and the third respondent in order to defeat the right of the second defendant was also raised.

2. The learned District Munsif Kallakuruchi, who tried the suit, held that the impugned transaction is only voidable ani therefore, respondents 1 and 2 should have taken steps to set aside the alienation within three years of attaining majority and the suit having been filed beyond that time, was barred by limitation. A further finding was also given that the second defendant was entitled to claim a refund of the consideration under the impugned alienation. However, in view of the finding on the question of limitation, the suit was dismissed. Aggrieved by that, the plaintiffs, preferred an appeal in A.S. 273 of 1970, Sub-Court, Cuddalore. The learned Subordinate Judge, held that the appropriate Article which would apply to the alienation sought to be impugned in this case would be Art 65 and not Art. 60 and in this view having regard to the vital finding that the first respondent was born prior to May, 1942, and the second defendant was born before September, 1945, the suit instituted on 15th February, 1967, being within 12 years from the date of the alienation by the third respondent herein would be, in time. On this finding, the learned Subordinate Judge proceeded to hold that the alienation in respect of items 1 and 2 will not be binding in so far as 2/3rd share of respondents 1 and 2 herein is concerned, but that respondents 1 and 3 will be entitled to a preliminary decree for partition of their 2/3rd share subject to their depositing into Court their proportionate share in a sum of Rs. 650 pai