ESAYA NELSON Vs. ADICHAN NADAR LAKSHMANAN NADAR
LAWS(KER)-1963-8-11
HIGH COURT OF KERALA
Decided on August 26,1963

ESAYA NELSON Appellant
VERSUS
ADICHAN NADAR LAKSHMANAN NADAR Respondents





Cited Judgements :-

ALIYUMMA VS. MAMMU HAJI [LAWS(KER)-2017-11-21] [REFERRED TO]
CHIRAKKAL PEEDIKAYIL KOMBI ALIYUMMA VS. KOMBI MAMMU HAJI [LAWS(KER)-2017-11-218] [REFERRED TO]


JUDGEMENT

- (1.)Plaintiffs are the appellants.
(2.)The suit property, 9 acres 24 cents in extent, belonged to Issac Essiah. The 4th defendant is his widow, and the defendants 5 & 6 & plaintiffs 1 to 3 are his children. On 12-7-1118 defendants 4 and 6, the former acting personally and as guardian of the plaintiffs and the 6th defendant, sold the property for Rs. 200/- to the 1st defendant as per Ext. V. The 2nd defendant is the assignee of the 1st defendant; and the 3rd defendant is impleaded as one holding some interest under defendants 1 and 2. Plaintiffs claim 3/5 share in the property, divided in metes and bounds, ignoring Ext. V as not binding on them. The 2nd defendant contended that Ext. V bound the plaintiffs, particularly since their right to question it had become barred under Art.44, Limitation Act. Though Ext. V recited the entire price as paid in cash at its execution, the courts below have concurred in finding that it was not supported by consideration. On that finding, the Munsiff held the sale void and therefore decreed the suit as been in time allowed by Art.144, Limitation Act; but the Subordinate Judge held the sale voidable and therefore dismissed the suit as been beyond time allowed by Art.44. In this second appeal the plaintiffs support the position taken by the Munsiff.
(3.)The question is whether the sale of the plaintiffs' property by their guardian without consideration was void or voidable. It is freely conceded that Art.44 applies to alienations that are voidable, but not void; and that therefore this suit has to be allowed if Ext. V is void, or dismissed if it is voidable only.
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