In the High Court of Judicature at Madras Dated: 12.08.2010 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal No.144 of 2002 Ramakrishna Reddiar ..Appellant ..vs.. 1. Sathiamurthy 2. Balasubbarayalu Reddiar ..Respondents Second Appeal under section 100 of Civil Procedure Code filed against the judgment and decree dated 10.04.2001 in A.S.No.79 of 1997 on the file of II Additional Sub Court, Villupuram, partly confirming the judgment and decree dated 31.03.1997 in O.S.No.1174 of 1994 on the file of Additional District Munsif Court, Villupuram. For Appellant : Mr.T.Dhanyakumar For Respondents : Mr.N.Suresh for R1 No appearance for R2 JUDGMENT The 2nd defendant is the appellant. This Second Appeal is directed against the decree and judgment dated 10.04.2001 passed by the learned II Additional Subordinate Judge, Villupuram, in A.S.No.79 of 1997, whereby the decree and judgment dated 31.03.1997 passed by the learned District Munsif, Villupuram, in O.S.No.1174 of 1994 were modified. 2. The 1st respondent herein and his brother are the plaintiffs, who filed the suit in O.S.No.1174 of 1994 on the file of District Munsif Court, Villupuram, against the 2nd respondent and the appellant herein as the defendants, for a declaration that the plaintiffs are entitled to the suit 'A' schedule properties and for delivery of possession of the same or, in the alternative, to pass a preliminary decree for partition and separate possession of the plaintiffs' half share in 'A' schedule properties and also for a direction to the 2nd defendant to pay the sum of Rs.6000/- as past mesne profits and also the future mesne profits. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the plaintiffs, as per the plaint averments, is as follows:- The plaintiffs are the sons of the 1st defendant Balasubbarayalu Reddiar. The properties described in the plaint as 'A' Schedule were originally purchased by one Neelakanda Reddiar, the grandfather of the plaintiffs in and by a sale deed dated 13.11.1963. He died intestate leaving his wife Dhanalakshmi Ammal and his son, the 1st defendant. The plaintiffs' mother Lalitha died 10 years prior to the filing of the suit. Thereafter, their grandmother Dhanalakshmi Ammal settled the suit properties in favour of the plaintiffs by a registered settlement deed dated 29.05.1982. Since the plaintiffs were minors at that time, Dhanalakshmi Ammal appointed her brother Kesava Reddiar as the guardian for the plaintiffs till they attain majority and he was directed to hand over possession of the properties to the plaintiffs after attainment of majority and they had been given absolute interest over the same. While so, the 1st defendant, without any right or authority, by way of a registered sale deed dated 21.06.1982 sold 'A' schedule properties in favour of the 2nd defendant. When the plaintiffs came to know about the alienation, they filed the present suit stating that the sale deed dated 21.06.1982 was not binding on them, for the reliefs stated supra as informa pauperis. 4. The said suit was contested by the 2nd defendant denying the settlement deed executed by Dhanalakshmi Ammal in favour of the plaintiffs since the suit properties were the joint family properties and stated that after the death of Neelakanda Reddiar, his son, the 1st defendant enjoyed the same on his own right by paying kist and raising crops. The 1st defendant had sold the properties for the family necessities and for the benefit of his minor sons i.e.the plaintiffs for a valid consideration of Rs.15,200/- under a registered sale deed dated 21.06.1982 to the 2nd defendant. Moreover, the suit is barred by limitation since the suit has not been filed within three years from the date of the minor plaintiffs attaining majority. The 2nd defendant had also prescribed title by adverse possession since he was in uninterrupted possession and enjoyment of the properties for more than 12 years. 5. On the basis of the above said pleadings, the trial court has framed ten issues and in order to prove the case of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-4 were marked and on the side of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-14 were marked and the trial court, on a consideration of the entire evidence on record both oral and documentary, had granted the relief of partition and separate possession of the plaintiffs half share in 'A' schedule properties and dismissed the relief of past mesne profits with a direction to the plaintiffs to file a separate application for future mesne profits under Order 20 Rule 12 C.P.C. As against the judgment of the trial court, the 2nd defendant, through his power agent, filed an appeal in A.S.No.79 of 1997 before the II Additional Sub Court, Villupuram, whereby the judgment and decree of the trial court were modified to the effect that the plaintiffs were https://hcservices.ecourts.gov.in/hcservices/ entitled to 2/3rd share in the suit properties. Aggrieved by the judgment of the appellate court, the 2nd defendant has filed this second appeal. During the pendency of the 1st appeal, the 1st plaintiff died. 6. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Whether the plaintiffs have proved Ex.A-2 Settlement Deed according to law ? (2) Whether the plaintiffs are entitled to 2/3rd share in the suit properties contrary to their pleadings even without filing Cross Appeal? (3) Whether the 2nd defendant is entitled to the suit properties by virtue of Ex.B-1 overriding Ex.A-2 ? (4) Whether the courts bellow are right in granting decree for possession of 2/3rd share instead of granting preliminary decree for partition ? (5) Whether the suit is barred by limitation? 7. Learned counsel for the appellant/2nd defendant submitted that the claim of the 1st respondent/plaintiff ought to have been dismissed by the courts below since the suit is hit by limitation. In this regard, the learned counsel relied on Ex.A-3, sale deed, dated 21.06.1982, executed by the father of the plaintiffs, the 2nd respondent herein in favour of the appellant and submitted that in Ex.A-3, the age of the 1st plaintiff Gurumoorthy was shown as 11 years and as such, the 1st plaintiff Gurumoorthy ought to have attained majority in the year 1989. Under such circumstances, the suit ought to have been filed within three years from the date of majority, whereas the suit has been filed in the year 1995 i.e.after the expiry of three years. Hence, the suit is hit by limitation, but this contention was rejected by the courts below and by relying upon the school certificate marked as Ex.A-4 dated 21.02.1991, both the courts below have come to the conclusion that the suit was filed within three years from the date of attaining majority by the 1st plaintiff. The learned counsel further submitted that the school certificate did not have a probative value as proof of age and also relied upon a judgment reported in AIR 1988 SC 1796 in the case of BIRAD MAL SINGHVI ..vs.. ANAND PUROHIT . 8. With regard to the share of the property, it is the submission of the learned counsel for the appellant that after the demise of Neelakanda Reddiar, his legal heirs, his wife Dhanalakshmi Ammal and his sons Balasubbarayalu Reddiar, the 2nd respondent herein and another son Janardhanam, have become entitled to each 1/3rd share and subsequently Janardhanam also died. Hence his 1/3rd share was https://hcservices.ecourts.gov.in/hcservices/ devolved upon his mother Dhanalakshmi Ammal i.e.paternal grandmother of the 1st respondent/2nd plaintiff. Thus, Dhanalakshmi Ammal had 2/3rd share and the 2nd respondent was entitled to 1/3rd share and Dhanalakshmi Ammal settled her share in favour of the plaintiffs. But, pending the first appeal, the 1st plaintiff Gurumoorthy died and hence, his share devolved upon his father, the 2nd respondent herein, as per the provisions of the Succession Act. Hence, the appellant is now entitled to the share of the 2nd respondent, as per section 43 of the Transfer of Property Act. Since the 2nd respondent had fraudulently represented to the appellant that he was authorised to transfer the immovable property of the minors and subsequently the 2nd respondent had also acquired the share of his first son on account of his death, the appellant is entitled to that share, which was acquired by the 2nd respondent subsequently. In support of his contentions, the learned counsel has also relied upon the judgment reported in 1977 (I) MLJ 411 (NAGHEETHA MARACAIR ..vs.. GOVINDASWAMI NAIDU) and 2007(2) CTC 78 (HARDEV SINGH ..vs.. GURMAIL SINGH (DEAD) BY LRs.) 9. Per contra, the learned counsel for the 1st respondent/2nd plaintiff submitted that though a settlement deed was executed by the grandmother of the plaintiffs on 29.05.1982, the same was registered only on 26.08.1982 i.e.subsequent to the sale deed Ex.B-1 executed by the 2nd respondent in favour of the appellant on 21.06.1982. Therefore, on the date of executing the sale deed by the 2nd respondent to the appellant, the minors have got a share in the properties. Therefore, the sale deed executed by the father of the plaintiffs is void. On the date of executing the sale deed, the father of the plaintiffs was entitled to alienate only his share, namely, 1/3rd share in 'A' schedule properties. Therefore, the finding arrived at by the courts below that the appellant is entitled to 1/3rd share in the properties cannot be found fault with. 10. The learned counsel for the 1st respondent further submitted that it is incorrect to state that the suit is hit by limitation. In order to prove the age of the 1st plaintiff, the school certificate was marked as Ex.A-4. The reliance placed by the courts below on Ex.A-4 cannot be said to be incorrect in view of the judgment reported in AIR 2005 SC 1868 (STATE OF PUNJAB ..vs.. MOHINDER SINGH). The 1st plaintiff Gurumoorthy died only during the pendency of the first appeal. Even in the second appeal, no ground has been raised with regard to Section 43 of the Transfer of Property Act. Section 43 could be applied only if the appellant is not a party to the sale deed marked as Ex.A-3. In the instant case, a reading of Ex.A-3 would show that the 2nd respondent had sold the property for himself and on behalf of his minors. Therefore, it is evident that even at the time of purchasing the property under Ex.A-3, the appellant was aware of the shares of the minors. Therefore, the question of applying the principle under section 43 of the Transfer of Property Act does not arise since there was no fraudulent representation by the 2nd respondent to the appellant in selling the suit schedule property. In https://hcservices.ecourts.gov.in/hcservices/ support of this contention, the learned counsel for also relied upon the decisions reported in 2010(2) CTC 198 (NATARAJAN ..vs.. PARAMASIVAM) and (2009)4 SCC 60 (JHARU RAM ROY ..vs.. KAMJIT ROY). 11. Heard the learned counsel for both sides and perused the materials available on record. 12. In view of the submissions made by the learned counsel for both sides, the questions that arise for consideration in this second appeal are, whether the present suit is barred by limitation and whether the appellant is entitled to the share of the deceased 1st plaintiff Gurumoorthy under section 43 of the Transfer of Property Act ? 13. With regard to the ground of limitation, it is the submission of the appellant that in the sale deed dated 21.06.1982 marked as Ex.B-1, the age of the 1st plaintiff was shown as 11 years. Under such circumstances, the suit ought to have been filed immediately within three years from the date of attaining the majority by the 1st plaintiff; on the contrary, the suit was filed in the year 1994 beyond three years after attaining majority. But the courts below have erred in placing reliance on Ex.A-4, the 1st plaintiff's transfer certificate issued by the Government School and have rejected the appellant's contention. Therefore, the conclusion arrived at by the courts below that the suit was filed within the period of limitation is not legally sustainable. In support of this contention, the learned counsel has relied upon the judgment reported in AIR 1988 SC 1796 (supra), wherein the Hon'ble Apex Court has held as follows: "To render a document admissible under S.35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other reason in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under S.35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded". 14. Countering the said submission, the learned counsel for the 1 st respondent has relied upon the judgment reported in AIR 2005 SC 1868, wherein it has been held as follows: https://hcservices.ecourts.gov.in/hcservices/ "13. ...Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam" From the above, it is clear that though a submission was made by the learned counsel for the appellant by relying on the dictum laid down in AIR 1988 SC 1796 that the school register cannot be looked into for the proof of age, as could be seen from the subsequent judgment of the Supreme Court that the school certificate could be taken as a proof for age, I am of the opinion that the finding arrived at by the trial court that the suit is not barred by limitation by relying on the school certificate cannot be said to be unsustainable and as such, the submission made on behalf of the appellant that the suit ought to have been dismissed on the ground of limitation cannot be accepted. 15. Coming to the share of the property, I find that after the death of Neelakanda Reddiar, the property was devolved upon his wife Dhanalakshmi Ammal and his two sons, namely, the 2nd respondent herein and Janardhanam. Therefore, as per intestate succession, Dhanalakshmi Ammal, the 2nd respondent and Janardhanam are entitled to each 1/3rd share. On a perusal of Ex.B-1/Ex.A-3 executed by the 2nd respondent in favour of the appellant, I find that the said Janarthanam died even before the execution of the sale deed. Under such circumstances, as per the provisions under the Succession Act, as on the date of execution of the sale deed, Dhanalakshmi Ammal was entitled to 2/3rd share and the 2nd respondent Balasubbarayalu Reddiar was entitled to 1/3rd share. But the settlement deed executed by Dhanalakshmi Ammal was registered only subsequent to the registration of the sale deed i.e.on on 26.08.1982. Therefore, on the date of execution of the sale deed, the properties were not settled in the names of the minors. Therefore, the 2nd respondent had no right to execute the sale deed on behalf of the minors. 16. Now, it is the contention of the appellant that since there was a fraudulent representation by the 2nd respondent stating that he was executing the sale deed on behalf of the minors, now he is also entitled to a share, which was subsequently acquired by the 2nd respondent on account of the death of his 1st son Gurumoorthy, who died pending the first appeal. In support of his contention, he has also relied upon the judgment reported in 1979(I) MLJ 411, wherein it has been held as follows: https://hcservices.ecourts.gov.in/hcservices/ "....When a person had no power to transfer to another a particular property but erroneously represents that he had such power and purports to transfer title in that property to another, it will attract section 43 of the Transfer of Property Act, if he subsequently acquires any interest in or title to that property. It is no defence to the person estopped to plead that the transferee made no proper enquiry as section 43 does not impose upon the transferee the duty of taking reasonable care". 17. In 2007(2) CTC 78 (supra), the Hon'ble Apex Court has held as follows: "Section 43 embodies "rule of feeding the estoppel". It is based on principle that person who makes representation shall not be heard to allege contrary as against person who acts thereupon and it is immaterial whether transferor acts bona fide or fraudulently in making representation. Principle is based on an equitable doctrine that person who promised to perform more than he can perform must make good his contract when he acquires power of performance. Provisions of Section 43 would be attracted if (a) contract of transfer was made by person who was competent to contract; and (b) contract would be subsisting at time when claim for recovery of property is made. Provisions would have no application if transfer is forbidden by law or contrary to public policy as contained in Section 23 of Contract Act". 18. On a perusal of the said judgment reported in 2007(2) CTC 78, I find that in that case, the original defendant No.1 Harcharan Singh allegedly transferred some properties in favour of his wife in lieu of maintenance pursuant to a compromise entered into by and between them. But, in the instant case, from the contents of the sale deed Ex.B-1, it could be seen that the appellant was aware about the existence of other heirs. It would be relevant to extract the following lines in Ex.B-1. "/////ePyfz;l bul;oahh; Fkhuh; gaph; ghyRg;g[uhaY 1/ ic& eghpd; ikdh; Fkhuh;fs; Rkhh; 11 taJs;s FUK:h;j;jp 2/ Rkhh; 2 taJs;s rj;jpaK:h;j;jp 3/ ic& 2.3 yf;fkpl;l ikdh;fSf;F fhh;oaDk; rtul;riz fh;j;jht[khd ic& gpjh 1 egh; ghyRg;g [uhaY jdf;fhft[k; ikdh;fSf;fhft[k; rk;kjpj;J vGjpf;bfhLj;j e";ir epy Rj;j tpf;fpuag; gj;jpuk;//// Therefore, at this length of time, it cannot be said by the appellant that on fraudulent representation by the 2nd respondent/2nd defendant, he purchased the property. To substantiate the same, the decision of the Supreme Court reported in (2009)4 SCC 60 (supra) was relied and the relevant portion is as follows: "10. Our attention, however, has been drawn to a decision of this Court in Hardev Singh v. Gurmail Singh ((2007) 2 SCC 404). In the said decision this Court laid down the law in the following terms :(SCC p.p.409-10, paras 12-15). https://hcservices.ecourts.gov.in/hcservices/ "12. In order to get the benefit of the said provision, the conditions which must be satisfied are: (1) the contract of transfer was made by a person who was competent to contract; and (2) the contract would be subsisting at the time when a claim for recovery of the property is made. 13. However, the provisions would have no application if the transfer was invalid as being forbidden by law or contrary to public policy, as envisaged under section 23 of the Contract Act. Thus, no estoppel can be pleaded contrary to the provisions of a statute. The 'rule of feeding the estoppel' shall apply in absence thereof. 14. The doctrine of feeding the estoppel envisages that 'where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel. 15. The principle is based on an equitable doctrine that a person who promised to perform more than he can perform must make good his contract when he acquires the power of performance. The difference between the ambit of Sections 41 and 43 of the Act is apparent. Whereas Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised therefor, subject to the condition that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit thereof is claimed by him. Section 43, on the other hand, enables the transferee to whom as transferor has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for value without notice is in effect". 11. Fraud vitiates all solemn acts. As the appellant was aware of the fact that Nakho Ram had not expired in 1992, in our opinion, the provisions of Section 43 of the Transfer of Property Act cannot be said to have any application in the instant case". 19. Therefore, from the factual scenario, it is evident that the appellant was a party to the fraud played by the 2nd respondent and, as such, now he cannot make a claim under section 43 of the Transfer of Property Act. Hence, I am not inclined to accept the submission made by the appellant with regard to the share of the property. Under https://hcservices.ecourts.gov.in/hcservices/ such circumstances, I am of the view that the 1st respondent is entitled to have his 2/3rd share in the suit properties and I do not find any infirmity in the finding arrived at by the lower appellate court and there is no question of law, much less, substantial questions of law arising for consideration. For the reasons stated above, the second appeal fails and is dismissed by confirming the judgment and decree of the lower appellate court. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gl To 1) The Additional District Munsif, Villupuram. 2) The II Additional Subordinate Judge, Villupuram. Copy to: The Record Keeper, V.R.Section, High Court,Madras. 1 cc To Mr.T.Dhanyakumar, Advocate, SR.59474 1 cc To Mr.N.Suresh, Advocate, SR.59318 Second Appeal No.144 of 2002 ts(co) pmk.17.9.2010 https://hcservices.ecourts.gov.in/hcservices/