Venkatarama Aiyar, J. -
(1.) THE plaintiff is the appellant in this second appeal. He is the son of one Ramayya Goundan who died sometime in 1931. The family of Ramayya Goundan consisted, at that time, of his two wives, Ponnammal and Ramayee, two daughters by his first wife, Ponnammal, the elder of whom, Marayee, was married to Marappa Goundan the second defendant in the suit and the younger Karupayee was unmarried and the appellant who was his son by the second wife, Ramayee and at that time a minor aged about ten years. The properties which Ramayya Goundan owned were a land known as Kandan Kadu in which he owned 3 acres & 81 1/2 cents & a land called That tan Kadu in which he owned 2 acres and 82 cents subject to a usufructuary mortgage for Rs. 450 of which half was payable by him, and a house. Shortly after his death, disputes arose between the two widows and it is stated that they were settled by a panchayat.
On 10 -12 -1932, three documents came into existence and it is the validity of one of them that is in question in the present litigation. Ex. D. 3 is a deed of release executed by Ponnammal in favour of Ramayee giving up her right of maintenance over the estate; and Ex. D. 5 is a deed of maintenance executed by Ramayee in favour of Ponnammal fixing her annual maintenance at Rs. 50 and charging the land known as Kandan Kadu for its payment. Ex. D. 1 is a deed of gift of the land known as Thattan Kadu executed by Ramayee in favour of Karuppayee the second daughter of Ponnammal. It is this alienation that is attacked by the appellant as void and not binding on him. On 14 -4 -1943, Karupayee sold the properties, gifted to her under Ex. D. 1 to the second defendant her sister's husband for a consideration of Rs. 875, under Ex. D. 2 and he is the contesting defendant in this action.
(2.) THE plaintiff challenges the validity of the gift under Ex. D. 1 on the ground that Ramayee acted in the transaction on her own behalf and not as his guardian; and that even viewed as an alienation by his guardian, it is not binding on him for the reason that it was beyond the power of the guardian to make a gift and that it could not be supported on the ground of any necessity. The defendant, apart from demurring to these allegations, pleaded that the suit was barred by limitation as it was filed more than three years after the plaintiff had attained majority and that he was further estopped from disputing the transaction as he had attested the sale deed Ex. D. 2. The learned District Munsif of Erode held that Ex. D. 1 was not executed by Ramayee as guardian of the plaintiff, that even otherwise the gift was invalid as it was greatly disproportionate to the status of the family, that there was no for of limitation and that further the plaintiff was not estopped by his attestation of Ex. P. 2 from raising the question of the validity of Ex. D. 1. In the result he decreed the suit.
The second defendant appealed against this decree and the District Judge who heard the appeal came to a different conclusion. He held that the gift must be taken to have been made by Bamayee as guardian of the plaintiff and that as the suit had been filed more than three years after the plaintiff had attained majority it was barred under Article 44 of the Limitation Act. In this view he did not consider it necessary to go into the question whether the allegation was binding on the plaintiff though he indicated that he would be prepared to up -hold it as valid. He also held that the plaintiff must have attested Ex. D. 2 with the knowledge of its contents and therefore, he was estopped from disputing the validity of Ex. D. I. In the result he allowed the appeal and discussed the suit. Against this judgment, the plaintiff prefers this second appeal.
The first question that arises for determination is whether the suit is barred by limitation. If it is, then no further question arises. It is contended on behalf of the respondent that as Ramayee was the natural guardian of the plaintiff under the Hindu law, any alienation by her must be set aside within the time limited by Article 44; that the plaintiff attained majority in 1939 and the suit instituted in 1945 is barred by limitation. This is not disputed by Mr. Parasurama Aiyar, the learned advocate for the appellant. He, however, contends that the present suit is not governed by Article 44 firstly because Ramayee had no power to make a gift under the Hindu law and the transaction was, therefore, beyond her competence and secondly because she did not purport to act as guardian of the plaintiff and there was no alienation by a guardian such as will fall within the purview of Article 44, Before dealing with these contentions, it is necessary to set out the material recitals in Ex. D. 1. It runs as follows:
"Deed of gift executed on the 19th day of December 1932 in favour of Karupayee Ammal, daughter of Ramayya Gounden, Vellala caste, ryot, residing at Melapalayam, Attavanaipidariyar village, Erode taluk, by Ramayee Animal, the junior wife of the said Ramayya Goundan aforesaid caste and calling, at the aforesaid village.
As you are the daughter of my husband's senior wife and due to the affection I have towards you I have given you the property worth Rs. 500 as a gift for the purpose of celebrating your marriage and making presentations etc. to you. Therefore, you, yourself shall hold and enjoy the said property with absolute rights and powers of alienation by way of gift, sale etc., from son to grandson and so on in succession."
In the schedule of property are included
"Government survey number 212 of the extent of acres 5 -97 cents assessed at Rs. 8 -3 -0 out of which one -twelfth share belonging (to me) punja acre 0 -49 9/12 assessed at Re. 0 -11 -3; punja bearing Government survey No. 213 of the extent of acres 9 -34 assessed at Rs. 12 -14 -0 out of which on the east and to the west of the road, punja of the extent of acres 2 -33 2/4 cents assessed at Rs. 3 -3 -6 belonging (to me) the lands of the above extents inclusive of the fruit bearing and timber trees therein."
(3.) ON this deed, the first contention of Mr. Parasurama Aiyar is that it is void because Ramayee had no power as guardian to make any marriage gift. It is conceded that the estate of Ramayya Goundan would be liable to meet the marriage expenses of Karupayee but it is argued that it could not be burdened with a gift to her and that the power of a father or widow to make such a gift could not be exercised by the guardian of a minor. That contention is supported by the decision of a Bench of this court reported in - - 'Palanianimal v. Kothandaraman',, ILR 1944 Mad 418 and Ex. D. 1 will, therefore, be prima facie not binding on the plaintiff. Mr. B. V. Viswanatha Aiyar the learned advocate for the respondent contended that Ex. D. 1 was not a gift to a married woman as in - - 'K. Palaniammal v. Kothandarama',, ILR 1944 Mad 418 but a transfer made in discharge of an obligation to marry her.
It is somewhat difficult to follow this argument. When the appellant succeeded to the estate of Ramayya Goundan, he took it subject to the obligation of getting Karupayee married. Any alienation made for discharging this obligation will without question be binding on him, but Ex. D. 1 is not of that character. It is not a sale or a mortgage for raising funds for the marriage of Karupayee or for discharging any debts contracted in connection therewith. In fact Karupayee was married only two years later. It is difficult under those circumstances to construe Ex. D. 1 as anything but what it purports to be, that is a gift made to her out of affection, etc. In that view, the decision in - - 'Palaniammal v. Kothandaraman',, ILR 1944 Mad 418 will apply and it must be held that it would not be binding on the plaintiff.;