The Judgment of the Court was delivered by

Vithayathil, J.:— The plaintiff is the appellant. The suit is for recovery of properties on the strength of title. The plaint properties which are five in number belonged to the father of the plaintiff who died intestate on 19-10-1109. He was governed by the Travancore Christian Succession Act, 2 of 1092. He left behind his widow and seven children, the plaintiff and six daughters.

2. It was alleged that of the six sisters of the plaintiff four were married during the life-time of the father and that they were given their Stridhanam. The plaintiff was a minor when his father died. According to the plaintiff, himself and his mother were the only heirs of his father. It was alleged that after the death of the father an arrangement was entered into between the plaintiff's mother and the other relations of the plaintiff by which the mother was given possession of the plaint properties and some other items and the remaining properties were kept in the possession of the plaintiff's paternal uncle who, according to the plaintiff, was his legal guardian. Defendants 1 to 8 were in possession of the plaint properties as lessees under the plaintiff's mother. Under the Christian Succession Act the mother had only a life interest in the properties & after her death the properties devolved on the plaintiff. The mother died on 1040–1122. The plaintiff was entitled to get possession of the properties from the defendants. When the defendants were asked to surrender possession of the properties they set up title to the properties and refused to surrender possession.

3. The plaintiff's mother was not competent to alienate the properties so as to defeat the title of the plaintiff. The plaintiff therefore instituted the suit for recovering possession of the properties from the defendants with mesne profits at the rate of Rs. 500 a year and also for past mesne profits amounting to 3500 fanams.

4. Defendants 1 and 2 filed a joint written statement in the case. Defendants 4 and 5 filed separate written statements. Defendants 3 and 6 were ex parte. Defendants 1, 2, 4 and 5 denied the lease set up in the plaint. They claimed items 1, 3 and 4 under three sale deeds executed in their favour by the plaintiff's mother and his four adult sisters the mother acting also as the guardian of the plaintiff and the two minor sisters.

5. The sale deeds are Exts. VIII, X and XI dated 11-10-1110. Ext. VIII was in favour of defendants 1 and 2 in respect of item No. 1. Ext. X was in favour of defendant 4 in respect of item No. 3 and Ext. XI was in favour of defendant 5 and related to item No. 4. It was contended that the sale deeds were supported by consideration and necessity binding on the plaintiff.

6. It was also contended that the suit was barred by limitation and that the plaintiff's title, if any, to the properties had been lost by adverse possession. The plaintiff had filed O.S No. 678 of 1123 on the file of the Nagercoil District Munsiff's Court against defendants 1 and 2 for recovery of possession of plaint item No. 1 and that suit was dismissed.

7. It was contended that the present suit was, therefore, barred by ‘res judicata’ as regards plaint item No. 1. The plaintiff filed a replication traversing the contentions of the defendants and reiterating the averments in the plaint. The plaintiff's mother and sisters had executed sale deeds in respect of plaint items Nos. 2 and 5 in favour of defendants 3 and 6. But those defendants did not contest the suit.

8. The Court below held that the suit was barred by limitation as regards plaint items Nos. 1, 3 and 4 and that the plaintiff's title to these properties has been lost by adverse possession. It was also held that the suit was barred by ‘res judicata’ as regards plaint item No. 1. Since defendants 3 and 6 did not contest the suit the plaintiff was given a decree for recovery of possession of items Nos. 2 and 5 with mesne profits from those defendants.

9. The suit was dismissed as regards plaint items Nos. 1, 3 and 4 and defendants 1, 2, 4 and 5. The parties were directed to bear their respective costs. The 5th defendant had filed a memorandum of objection regarding the order relating to costs.

10. So far as the appeal is concerned the only question for decision is whether the suit is barred by limitation. According to the defendants, the plaintiff was bound to set aside Exts. VIII, X and XI within three years of his attaining majority under Article 44, Limitation Act. The plaintiff was 30 years of age on the date of suit. Therefore, if Article 44 would apply to the case the suit, would be clearly barred by limitation.

11. According to the plaintiff the sale deeds are void documents and, therefore, he was not bound to have them set aside. If the documents are void the plaintiff can sue for recovery of possession of the properties within 12 years from the date when the possession of the defendants becomes adverse to him. The possession can become adverse only from the date of the death of the mother since the plaintiff was not entitled to possession of the properties during the life time of the mother.

12. The mother died only in 1122 and the suit was instituted in 1123. It was further contended that the plaintiff acquired title to the properties only on the death of the mother, that his position was that of a reversioner under the Hindu Law, that the alienations effected by the mother would affect only her interest in the properties and that the suit for recovery of possession would come under Article 140, Limitation Act, which prescribes a period of 12 years from the date when the estate falls into possession. In that case also the suit will be within time.

13. For deciding the question whether Article 44, Limitation Act, would apply to the case or whether it is Article 140 or 144 that applies it is necessary to understand the nature of the right that the plaintiff acquired in the properties of his father under the Travancore Christian Succession Act. Section 16 of the Act provides that where-the intestate has left a widow, if he has also left lineal descendants, a share equal to that of a son shall be allotted to the widow.

14. Section 24 provides that over any immovable property to which a widow becomes entitled she will have only a life interest terminable at death or re-marriage, and that on the determination of the limited interest of the widow, the property over which she had such limited interest shall be-distributed among the heirs of the original intestate as if the holder of the life estate had not survived the intestate.

15. Section 25 provides that the next of kin of the intestate in the order set forth in the section shall be entitled to succeed to the residue of is property that may be left after deducting the widow's share, if he has left a widow, and also the mother's share, if he has left a mother. So far as daughters are concerned, S. 28 provides that they will be entitled only to Streedhanom and that Stridhanom due to a daughter shall be fixed at one-fourth the value of the share of a son or Rs. 5,000 whichever is less.

16. The section also provides that Stridhanom promised, but not paid by the intestate, shall be a charge upon the property. The sisters of the plaintiff were, therefore, entitled only to get Stridhanom charged on the properties if they have-not been paid their Stridhanom and were not entitled to any share in the properties. The plaintiff's mother was entitled to a life-interest in respect of a share equal to that of the plaintiff.

17. According to learned counsel for the plaintiff, the plaintiff will become entitled to the one-half share taken by the mother only on the death-or re-marriage of the mother as in the case of a reversioner under the Hindu Mitakshara Law. According to the defendants, the plaintiff will get a vested interest in the property subject to the right of the mother when the succession opens viz., on the death of the father, and the mother gets only the right to be in possession of the property till her death or re-marriage.

18. If the plaintiff acquires an interest in the property only on the death or re-marriage of the mother he will have no vested interest in the property till the death or re-marriage of the mother. It will be a mere ‘spes successionis’ which is not transferable property. If that is so, the sale deed executed by the mother as his guardian could not convey any interest in the property so far as he was concerned and he will not be bound to have the sale deed set aside under Article 44.

19. But if he gets a vested interest in the property on the death of the father that will be transferable property which can be dealt with by him, if he is a major even during the life-time of the mother and by his legal guardian during his minority. Of course, in the case of an alienation by the guardian it can bind him only if it was for his benefit or necessity, but in that case he will be bound to avoid the document within the time prescribed by Article 44. Limitation Act.

20. If the alienation is by a person who is not the legal guardian of the minor it will be a void transaction so far as he is concerned and he will not be bound to have it set aside under Article 44. Therefore, the two questions that arise for consideration in the case are:— (i) whether the plaintiff had a vested interest in the plaint properties even during the lifetime of the mother and (ii) whether the plaintiff's mother was his legal guardian.

21. The first question was considered by this Court in ‘Ramaswamy Pillai Velayudhan Pillai v. Arumanayagam Seemon’, AIR 1955 Trav. C. 20 (A). It was held in that case that the position of a person who under the Travancore Christian Succession Act succeeds to an estate in respect of which a life interest is created in favour of the widow of the intestate is entirely different from that of a reversioner under the Hindu Law in respect of a property subject to widow's estate, that under the Christian Succession Act the heir of the original owner gets a vested interest in the property on the death of the owner subject to the life interest of the widow which is terminable on death or re-marriage, that the right of a person who succeeds to an estate subject to a life-interest created in favour of another is not a mere ‘spes successionis’ and that it is a vested interest which is transferable property.

22. Since the whole question was discussed at length in that case we do not think it necessary to discuss it again. The distinction between the right of a reversioner under the Hindu Law in respect of a property over which a widow's estate is created and that of a person who succeeds to an estate under the Christian Succession Act in respect of which a life interest is created in favour of the widow or mother of the intestate was explained thus in that case:—

“Under the Hindu Law a reversionary cannot be said to have a vested right in the property taken by the widow of the last owner. It is true that it is the heir of the last owner, that succeeds to the estate on the death of the widow. But it is the person who will be the heir of the last owner at the time of the death of the widow that succeeds to the estate.

He need not necessarily be the person who was the heir of the last owner at the time of his death. For this reason, under the Hindu Law a person who is the heir of the last owner at the time of his death cannot be said to have a vested interest in the property during the lifetime of the widow. It has been held in various cases that the right of a reversionary heir expectant on the death of a Hindu widow is a ‘spes successionis’ and is not transferable property”.

23. Reference was made to the decisions of the Privy Council in ‘Amrit Narayan v. Gaya Singh’, AIR 1917 PC 95 (B) and ‘Janaki Ammal v. Narayanaswami’, AIR 1916 PC 117 (C). With regard to the nature of the estate taken by a widow under the Christian Succession Act, it was observed as follows:

“Although it would appear from the wording of Sections 16 and 17 of the Christian Succession Act, that the widow succeeds to the estate of the Intestate as one of his heirs, Ss. 17 and 24 read together make it clear that what the widow gets is only a life interest terminable on death or re-marriage and that the other heirs of the intestate succeed to the estate subject to the limited interest created in favour of the widow”.

24. It follows from this that the plaintiff had a vested interest in the plaint properties even during the life-time of his mother. That interest was transferable property and could be dealt with by his legal guardian during his minority, like any other property of his. If the mother was his legal guardian and, therefore, competent to act on his behalf the alienation will have to be set aside by him within three years of his attaining majority under Article 44, Limitation Act, and a suit instituted by him for recovering possession of the property after the expiry of that period will be barred by limitation.

25. The mere fact that the mother was entitled to be in possession of the property til her death and that the plaintiff could get possession only after her death cannot affect the question. If the plaintiff's legal guardian alienated whatever interest he had in the properties that interest will be lost to him if he does not get the alienation avoided within the period prescribed by Article 44.

26. If the alienation stands the plaintiff will have no right to sue for recovery of possession of the property as a remainderman under Article 140, Limitation Act, within 12 years from the date of the death of the mother.

27. Reference may be made in this connection to the decision of the Madras High Court in ‘Ramaswami v. Govindammal’, AIR 1929 Mad 313 (D). In that case one Venkitarama Chetti executed a Will in respect of his properties under which his son was given a life estate in a property without power of alienation and the remainder was given to his grandson with full powers of alienation.

28. After the death of the testator the son alienated the property in his own right and as the guardian of the grandson. The son died on 25-10-1913. The grandson's vendee instituted a suit for recovery of possession of the property on 1-12-1924, i.e, more than 3 years after the grandson attained majority. It was held that Article 44 applied to the case and that the suit not having been instituted within 3 years from the date of the grandson attaining majority was barred by limitation.

29. It follows from this that if the plaintiff's mother was his legal guardian and the sale deeds executed by her on his behalf are only voidable & not void he was bound to have them set aside within 3 years of his attaining majority under Article 44, Limitation Act.

30. If the plaintiff's mother was not his legal guardian and was therefore not competent to act on his behalf the sale deeds will be void so far as he is concerned and he will not be bound to have them set aside. We have, therefore, to consider the question whether the plaintiff's mother was the legal guardian of the plaintiff.

31. The sale deeds in question were executed before the Travancore Christian Guardianship Act, 3 of 1116 was enacted. Hence that Act cannot apply to the case. It is, therefore, necessary to see whether under the customary law governing the Christian community the mother was the legal guardian of the minor in the absence of the father. It is not disputed that according to the customary law of the community the father was the legal guardian of his minor child.

32. As for the right of the mother to act as the guardian of her minor child in the absence of the father there is no direct decision of the Travancore High Court relating to the question. But there are reported cases in which the mother acted as the guardian of her minor children in the absence of the father and the transaction was not impeached on the ground that the mother was not the legal guardian: vide ‘Ouseph Maria v. Luca Mathai’. 4 Trav LJ 266 (FB)(E).

33. It was held in that case that according to the custom prevailing in the Christian community in the absence of the father, the mother was the legal guardian of her minor children, both of their persons and their properties. The Madras High Court also took the same view in ‘Bangarammal v. Lydia Kent’, AIR 1934 Mad 605 (F).

34. It was held in that case that among Christians, the father being dead, the mother was entitled to the custody of the child and to the guardianship of its property. Reference may also be made to the following passage in Trevelyan on Minors, 6th Edn., pages 167 and 168 where the learned author, speaking of communities other than Hindus and Mohammedans, says:—

“Failing the father, the mother's custody of her children's property would be treated as not unlawful. Failing the father and mother, and their appointees, no person, however nearly related, is of right entitled to the custody of minors, who are neither Hindus nor Mohammedans, or to the guardianship of their property”.

35. It would appear from this that according to the learned author, in the case of communities other than Hindus and Mohammedans, the mother would be the legal guardian of her minor children in the absence of the father. We, therefore, hold that the plaintiff's mother was his legal guardian and that she was competent to execute the sale deeds Exts. VIII, X and XI in her capacity as the guardian of the plaintiff.

36. It follows that the alienations are only voidable and not void. The plaintiff was, therefore, bound to have them set aside within 3 years of his attaining majority under Article 44, Limitation Act.

37. It was, however, argued for the appellant that the sale deeds, Exts. VIII, X and XI were executed on the basis that the plaintiff was entitled only to ⅛th share in the properties, that the plaintiff's mother when executing the sale deeds as his guardian, purported to transfer only that ⅛th share to the vendees and that therefore the plaintiff was not bound to have the sale deeds set aside in respect of the remaining ⅞th share. We are unable to accept this argument.

38. It is true that the four adult sisters of the plaintiff also joined in the execution of the sale deeds and the mother executed the sale deeds on her own behalf and also on behalf of the two minor sisters of the plaintiff. It was also stated in the sale deeds that the properties belonged to the executants thereof. But it was not stated that the plaintiff had only ⅛th share-in the properties and that it was that ⅛th share that was sold to the vendees.

39. The sale deeds show that the executants thereof transferred whatever interests they had in the properties. It was not stated in the sale deeds what particular right each of the executants had in the properties. The mother had life-interest in respect of one-half of the properties. The sisters of the plaintiff had right to Stridhanom charged on the properties.

40. The plaintiff had absolute right in respect of one-half of the properties subject to the claims of the sisters for Stridhanom and a vested interest in respect of the other half subject to the life-interest in favour of the mother. It must have been because the sisters of the plaintiff had a charge on the properties for the Stridhanom amounts due to them that they were made to join in the execution of the sale deeds.

41. The mother executed the sale deeds in her own capacity as she had a life-interest in respect of one-half of the properties. The remaining interest belonged to the plaintiff and when the mother executed the sale deeds as his guardian also what she purported to convey was the full interest that the plaintiff had in the properties. It cannot, therefore, be said that it was only ⅛th share of the plaintiff that was conveyed by the mother under Exts. VIII, X and XI.

42. There is, therefore, no force in the contention that the sale deeds cannot affect the plaintiff's full right in the properties. It is clear from the sale deeds that the plaintiff's mother acting as his guardian transferred whatever interest he had in the properties under the sale deeds. So long as the sale deeds are not avoided by the plaintiff within the time prescribed by law they will be binding on him and he will have no right to recover possession of the properties conveyed under the sale deeds.

43. It follows that the suit instituted more than 3 years after the plaintiff attained majority is barred by limitation. The suit was, therefore, rightly dismissed by the Court below. We confirm the judgment and decree of the Court below and dismiss the appeal with costs. Respondents 1 and 2 have filed a memorandum of objection relating to costs disallowed by the Court below. We do not think that there is sufficient reason for us to interfere with the discretion exercised by the Court below in the matter of awarding costs in this case. The memorandum of objection is, therefore, dismissed, but without costs.

44. Appeal dismissed.