JUDGMENT
Abdul Hadi, J.
1. A.S. No. 502 of 1980 is against O.S. No. 178 of 1978 on the file of Sub-Court, Tindivanam and Tr. A.S. No. 582 of 1984 is against O.S. No, 176 of 1978 on the file of the Sub-Court. Tindivanam. Plaintiff in both the suits is same, though the suit properties in each of the suits are different. Both the suits having been dismissed, the plaintiff has preferred these respective appeals.
2. O.S. No. 176 of 1978 is for setting aside the alienations of the suits properties (7 items of land) made in favour of defendants 2 to 7 therein by the first defendant therein, who is the father of the plaintiff, and for partition and separate possession of the plaintiff’s 1/2 share in the said suit properties and for past and future profits. According to the plaint, the suit properties are in the possession of the said alieness, as follows : Item No. 1 with the 3rd defendant; item No. 2 with the 4th defendant, item No. 3 with the 2nd defendant, item Nos. 4 and 5 with the 5th defendant, item No. 6 with the 6th defendant and item No. 7 with the 7th defendant. Further, according to the plaint, the plaintiff was a minor at the time of the said alienations he having been born on 18.5.1956. But he was also no nomine party to the alienations, he has prayed for setting aside the said alienations. The alienations are attacked on the ground that the father was leading an immoral life and alienated the properties for his immoral purposes. The plaintiff’s further case is that the suit properties are joint family properties of the family consisting of the plaintiff and his father.
3. Defendants 2 to 4 in the suit pleaded as follows :
“The age of plaintiff is not admitted. The suit is barred by limitation. The properties are the self-acquired properties of the first defendant-father. The first defendant was not leading an immoral life. The alienations were for discharging debts of the first defendant and for the maintenance of the family and so binding on the plaintiff. Defendants 1, 5 to 7 remained ex-parte.
4. O.S. No. F/8 of 1978 is for a declaration that the plaintiff is entitled to items 1 to 4 that suit properties therein, (which consists of another 6 items of lands) for possession of the same and for partition of 1/2 share in the remaining items 3 and 6 therein, after setting aside the alienations of all the said suit properties in favour of the defendants therein, and for past profits of Rs. 1.500/- and future profits. According to the plaint, the said suit 6 items of properties were settled on 18.8.1965 in favour of the plaintiff by his above said father who is 11th defendant in this suit (and 1st defendant in O.S. No 176 of 1978) and under the said settlement, the father should enjoy the said properties as the guardian of the minor settle till he attains majority and thereafter, the settlee should take possession and enjoy the property without power of alienation during the life time of the settlor and on settlor’s death, he should take them absolutely. However, according to the plaint the said father wrongfully alienated items 1 to 4 and portions of items 5 and 6, Item 15 cents in item 2 and 4 were alienated in favour of the first defendant in the suit and his brother Subramaniya Kounder. The 2nd defendant is said to be the heir of the said Subramaniya Kounder. The said father also alienated the remaining portion of item 2 in favour of 3rd defendant, item 3 to 4th defendant, portion of item 5 to 6th defendant and item 6 and another portion of item 5 to 6th defendant. The said alienations were by the said father as the guardian of his minor son, the plaintiff. These alienations are attacked in the suit on the ground that they were not for necessity and they were not supported by consideration 7th defendant is the plaintiff’s paternal grandfather’s brother’s wife and defendants 8, 9 and 10 are her daughters. It is not clear why D-7 to D-10 have been impleaded.
5. Defendants 1 to 3 and 5 to 11 remained ex-parte 3(c). The written statement filed by the 4th defendant (who is also 2nd defendant in O.S. No. 176 of 1978) is as follows ; The suit is barred by limitation. The alleged settlement in favour of the plaintiff is neither true nor valid. This defendant purchased item No. 3 for valuable consideration; which was spent for improvement of their properties and also was for family necessity.
6. On a joint memo filed by both the parties, both the suits were tried together and the evidence recorded in O.S. No. 176 of 1978 was treated as evidence in O.S. No. 178 of 1978. Of the alienees in both the suits, Govindammal alone figured as alinee in both the suits and the other alienees in O.S. No. 176 of 1978 are different from the other alienees O.S. No. 176 of 1978 are different from the other alienees O.S. No. 178 of 1978. Though initially, there was a dispute as to the character of the suit properties in O.S. No. 176 of 1978, at the time of argument, learned Counsel for the defendants did not dispute the fact that the said properties were joint family properties.
7. The alienations made by the father of the plaintiff before the execution of the above said settlement deed are called in question in Suit No. 176 of 1978, whereas the alienations made by him after the execution of the said settlement deed are called in question in Suit No. 178 of 1978. On the question of the validity of the alienations in both the suits and on the question of the validity of the abovesaid settlement deed in O.S. No. 178 of 1978, the trial Court held that the said settlement and the alienations are valid and binding upon the plaintiff. On the question of limitation also, the Court below has held that both the suits are barred. Therefore, both the suits were dismissed with costs.
8. Before the learned Counsel for the plaintiff-appellant raises only two contentions. (1) the first one is regarding the validity of the above-said alienation i.e. (a) the alienations by the kartha/father of the plaintiff of the coparcenary properties belonging to the said father and the plaintiff, which is in dispute in O.S. No. 176 of 1978 and (b) the alienations of the same person as the natural guardian of the then minor plaintiff of the said minor’s own properties He contends that both the sets of alienations are not valid. (2) the second one is regarding the question of limitation. He contends that both the suits are in time.
9. Regarding the second contention of limitation in respect of both the suits, his contention is that the Court below has erred in holding that the said suits are barred by limitation on the ground that Ex. A-l the extract from the school register of the plaintiff cannot be taken as a decisive document to prove his date of birth as 18.5.1956 and that the plaintiff should have produced birth extract from the Sub-Registrar’s office. I also find that this view of the trial cannot be accepted, because, there was no cross-examination on Ex. A-l of P.W. 1, the plaintiff suggesting that it did not show the correct date of birth In the above circumstances, Ex. A-l can be very well relied on and if so, the suits are well within time, as the suits have been filed on 28.4.1977 and the relevant Articles of Limitation in respect of Suit No. 176 of 1978 being Article 110 (12 years) and in respect of Suit No. 178 of 1978, Article 60 (3 years from the date when the plaintiff attains majority).
10. Regarding the first contention mentioned as l(a) above, (i.e., in so far as O.S. No. 176 of 1978) the learned Counsel’s submission is that the burden of proof is only on the alienees to prove earlier that there was a legal necessity in fact, for the alienation, or that they made proper and bona fide enquiry, as to the existence of such necessity and did all that was reasonable to satisfy themselves as to the existence of such necessity and that the Court below has made absolutely a wrong approach, in proceeding with the case on the footing that it is incumbent on the plaintiff to prove that the alienations were not made for legal necessity. In this connection, he cited para 244 of Mulla’s Hindu Law (15th Edition) and the case reported in Kumaraswami Mudaliar v. Rajamanicka Udayar, and also Hanoomanprasad Panday v. Mussumat Babooee Munaraj Koonweree, 6 M.I.A. 393. The above proposition of law is no doubt correct. The Court below has not approached the case from this angle, but has placed the burden wrongly on the plaintiff and has held that the plaintiff has not proved that the alienations were made by the father for the alleged immoral purposes. So,l went through the evidence to find out whether the aleienees-defendants in O.S. No. 176 of 1978 have proved that there was a legal necessity in fact, for the above said alienations or at least they had made proper and bona fide enquiry as to the existence of such necessity and did all that was reasonable to satisfy themselves as to the existence of such necessity. In this connection, as already pointed out, so far as alienations with reference to items 4 to 7 of the suit properties in O.S. No. 176 of 1978. the respective alienees, namely defendants 5 to 7, had remained ex-parte and only (he other alienees namely the defendants 2 to -i had contested the suit. At any rate, as pointed out by the learned Counsel for the 4th respondent-Govindammal, regarding the said alienations by the plaintiff’s father. I find on important admission by P.W. 2 (Karnam) himself as follows : “(Omitted being in regional language-Ed.) This by itself proves the legal necessity for the said alienations in O.S. No. 176 of 1978.
11. Further, the main witnesses on the side of the contesting defendants 2 and 3 are D.W. 1 and D.W. 2. D.W. 1 is the husband ofD-2 and D.W. 2 is the husband of D-3. I went through the evidence of both D.W. 1 and 2. They stated about the alienations regarding item Nos. 1 and 3. Regarding item Nos. 1 and 3, on going through the evidence of D.W. 1 and D.W. 2 also, it can be concluded that the alienation in favour of defendants 2 and 3 are for legal necessity of the family of the plaintiff and his father. So far as the alienation of item-3 in favour of 2nd defendant in OS. No. 176 of 1978 the relevant sale deed is Ex. B-l and the evidence of D.W. 1 is that it was for discharging the previous loan incurred for cultivation expenses. There is no cross-examination on this point. So far as the alienation of item No. 1 in favour of Krishnasamy Rounder, the predecessor of 3rd defendant the relevant sale deed is Ex. B-5 and the evidence of D.W. 2 is that it was also the pay off the sale consideration under the earlier purchase under Ex. B-3, by the first defendant. No doubt D.W. 2 also deposed that he did not know personally about Ex. B-5. There is also no evidence regarding the alienation of item No. 2 in favour of the 4th defendant. At any rate, as already pointed out by me inrespect of all the alienations which are attached in O.S. No. 176 of 1978, the above said admission of P.W. 2 would clinch the issue, because by the said evidence the legal necessity in fact, for the said alienations, has been proved and thereby, it can be rightly said that all the alienees-defendants in O.S. No. 176 of 1978 have discharged their burden of proof, even though there is no specific evidence as such that the said defendants made proper and bona fide enquiry as to the existence of such necessity. As already noted, it is enough if the said defendants-alienees either prove that there was a legal necessity in fact for the alienation or that they have made proper and bona fide enquiry as to the existence of such necessity. So the dismissal of the plaintiff’s suit has to be upheld in toto. So A.S. No. 582 of 1984 is dismissed with costs.
12. So far as the other Appeal No. 502 of 1980, arising out of O.S. No. 178 of 1978, the alienations are, as stated above, by the father of the plaintiff, as guardian of the plaintiff and so, Section 8(2) and (3) of the Hindu Minority Guardianship Act, 1956 are attracted. Section 8(2) says that a natural guardian shall not, without the previous permission of the Court, alienate the property of the minor. Section 8(3) says that any disposal of any immoveable property by the natural guardian in contravention of Section 8(2), is viodable at the instance of the minor. This Court in the case Narasimha Naidu v. Ayilu Haldu, (1971) 1 M.L.J. 228, has also held that the absence of the necessary permission of the Court for an alienation by the guardian does not make the alienation absolutely void, but makes it only voidable at the instance of the minor. In the present case, admittedly the previous permission from the Court as contemplated Under Section 8(2) has not been obtained. So the plaintiff can avoid the transaction. In this contex, the Trial Court has erred in stating that in order to succeed, the plaintiff has to prove that the transaction is tainted with immoral or illegal purposes or that it must be shown that there is no family necessity. The Trial Court has so erred because no such proof by the plaintiff is necessary under the above said Act. The Trial Court in this regard has confused the alienation by a guardian with the alienation by the kartha of a Hindu family. Therefore, the mere fact that the plaintiff has filed the suit O.S. No. 178 of 1978 shows that he wants to avoid the alienation. He could avoid the alienations in this regard by any act or conduct on his part showing his intention to avoid them. vide : Santha v. Cherukutty, . Therefore, the judgment and decree of the Trial Court in O.S. No. 178 of 1978 is set aside and the suit is decreed as prayed for.
13. Consequently, Appeal No. 502 of 1980 is allowed but in the circumstances of the case, no costs.