Judgment :- A.S.No.502 of 1980 is against O.S.No.17m8 of 1978 on the file of Sub Tindivanam and Tr.A.S.No.582 of 1984 is against O.S.No.176 of 1978 on the file of the Court, Tindivanam. Plaintiff in both the suits is same, though the suit properties in the suits are different Both the suits having been dismissed, the plaintiff has preferred respective appeals. 2. O.S.No.176 of 1978 is for setting aside the alienations of the suit properties (7 items land) made in favour of defendants 2 to 7 therein by the first defendant therein, who father of the plaintiff, and for partition and separate possession of the plaintiffs ½ the said suit properties and for past and future profits. According to the plaint, the properties are in the possession of the said alienees, as follows: Item No.1 with 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 with the 7th defendant. Further, according to the plaint, the plaintiff was a minor at the of the said alienations he having been born on 18.5.1956. Bin he was also eo nomine to the alienations, he has prayed for setting aside the said alienations. The alienations attacked on the ground that the father was leading an immoral life and alienated properties for his immoral purposes. The plaintiff’s further case is that the suit properties 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 the plaintiff is not admitted. The suit is barred by limitation. The properties are the self-acquired properties of defendant-father. The first defendant was not leading an immoral life. The alienations for discharging debts of the first defendant and for the maintenance of the family binding on the plaintiff. Defendants 1, 5 to 7 remained ex parte. 4. O.S.No.178 of 1978 is for a declaration that the plaintiff is entitled to items 1 to 4 suit properties therein, (which consists of another 6 items of lands) for possession same and for partition of 1/2 share in the remaining items 3 and 6 therein, after aside the alienations of all the said suit properties in favour of the defendants therein, for past profits of Rs l,500and future profits. According to the plaint, the said suit 6 properties were settled on 18.8.1965 in favour of the plaintiff by his above said father 11th defendant in this suit (and 1st defendant in O.S.No.176 of 1978) and under settlement, the father should enjoy the said properties as the guardian of the minor till he attains majority and thereafter, the settlee should take possession and enjoy property without power of alienation during the life time of the settlor and on settlor 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 alienated in favour of the first defendant in the suit and his brother Subramanya The 2nd defendant is said to be the heir of the said Subramaniya Kounder. The said also alienated the remaining portion of item 2 in favour of 3rd defendant, item 3 defendant, portion of item 5 to 5th defendant and item 6 and another portion of item 6th defendant. The said alienations were by the said father as the guardian of his minor the plaintiff. These alienations are attacked in the suit on the ground that they were necessity and they were not supported by consideration 7th defendant is the paternal grandfather’s brother’s wife and defendants 8,9 and 10 are her daughters. It 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 4th defendant (who is also 2nd defendant in O.S.No.176 of 1978) is as follows: The barred by limitation. The alleged settlement in favour of the plaintiff is neither true nor This defendant purchased item No.3 for valuable consideration; which was spent 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 evidence recorded in O.S.No.176 of 1978 was treated as evidence in O.S.No.178 of 1978. the alienees in both the suits, Govindammal alone figured as alienee in both the suits the other alienees in O.S.No.176 of 1978 are different from the other alienees O.S.No.178 1978. 6. On a joint memo filed by both the parties, both the suits were tried together evidence recorded in O.S.No.176 of 1978 was treated as evidence in O.S.No.178 of 1978. the alienees in both the suits, Govindammal alone figured as alienee in both the suits the other alienees in O.S.No.176 of 1978 are different from the other alienees O.S.No.178 1978. Though initially, there was a dispute as to the character of the suit properties O.S.No.176 of 1978, at the time of argument, learned counsel for the defendants 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 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 No.178 of 1978. On the question of the validity of the alienations in both the suits the question of the validity of the abovesaid settlement deed in O.S.No.178 of 1978, Court held that the said settlement and the alienations are valid and binding upon plaintiff. On the question of limiation also, the court below has held that both the suits barred. Therefore, both the suits were dismissed with costs. 8. Before the learned counsel for the plaintiff-appellant raises only two contentions. first one is regarding the validity of the above-said alienations i.e., (a) the alienations the alienations 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 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-1 the extract from the school register of the plaintiff cannot be taken as 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-1 of P.W.I, the plaintiff suggesting that it did not show the correct date of birth. In the above circumstances, Ex.A-1 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 Art.110(12 years) and in respect of Suit No.178 of 1978, Arts.60 (3 years from the date when the plaintiff attains majority). 10. Regarding the first contention mentioned as 1(a) above, (i.e., in so far as O.S.No.176 1978) the learned counsel’s submission is that the burden of proof is only on the alienees to prove either 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. Rajaman-icka Udayar, A.I.R. 1966 Ker. 266 also Hanoomanpesad Panday v. Mussumat Babooee Munaraj Koonweree, 6 M.I.A. 393. 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, I went through the evidence to find out whether the alienees-defendants 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 such necessity and did all that was reasonable to satisfy themselves as to the existence 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 the other alienees namely the defendants 2 to 4 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 plaintiffs father, I find an important admission by P. W.2 (Karnam) himself follows: ‘‘This by itself proves the legal necessity for the said alienations O.S.No.176 of 1978. 11. Further, the main witnesses on the side of the contesting defendants 2 and 3 are D.W.I and D.W.2. D.W.1 is the husband of D-2 and D.W.2 is the husband of D-3.1 went through the evidence of both D.W.I 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 O.S.No.176 of 1978 the relevant sale deed is Ex.B-1 and the evidence of D.W.I 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 Krishnasamy Kounder, the predecessor of 3rd defendant, the relevant sale deed is Ex.B and the evidence of D.W.2 is that it was also to 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 did not know personally about Ex.B-5. There is also no evidence regarding the alienation item No.2 in favour of the 4th defendant. No doubt D.W.2 also deposed that did not know personally about Ex.B-5. There is also no evidence regarding the alienation item No.2 in favour of the 4th defendant. At any rate, as already pointed out by me respect 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, said alienations, has been proved and thereby, it can be rightly said that all the defendants in O.S.No.176 of 1978 have discharged their burden of proof, even though is no specific evidence as such that the said defendants made proper and bona fide 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 have made proper and bona fide enquiry as to the existence of such necessity dismissal of the plaintiff’s suit has to be upheld in toto. So AS.No.582 of 1984 is with costs. 12. So far as the other Appeal No.502 of 1980, arising out of O.S.No.178 of 1978, alienations are, as stated above, by the father of the plaintiff, as guardian of the plaintiff so, Sec.8(2) and (3) of the Hindu Minority Guardianship Act, 1956 are attracted says that a natural guardian shall not, without the previous permission of the court, the property of the minor. Sec.8(3) says that any disposal of any immovable property natural guardian in contravention of Sec8(2), is voidable at the instance of the minor. court in the case Narasimha Naidu v. Ayilu Naidu, (1971)1 M.L.J. 228 , has also held absence of the necessary permission of the court for an alienation by the guardian make the alienation absolutely void, but makes it only voidable at the instance of the In the present case, admittedly the previous permission from the court as contemplated under Sec.8(2) has not been obtained. So the plaintiff can avoid the transaction. context, the trial court has erred in stating that in order to succeed, the plaintiff has that the transaction is tainted with immoral or illegal purposes or that it must be shown there is no family necessity. The trial court has so erred because no such proof plaintiff is necessary under the above said Act. context, the trial court has erred in stating that in order to succeed, the plaintiff has that the transaction is tainted with immoral or illegal purposes or that it must be shown there is no family necessity. The trial court has so erred because no such proof plaintiff is necessary under the above said Act. The trial court in this regard has confused alienation by a guardian with the alienation by a Kartha of a Hindu family. Therefore, mere fact that the plaintiff has filed the suit O.S.No.178 of 1978 shows that he avoid the alienation. He could avoid the alienations in this regard by any act or conduct his part showing his intention to avoid them, (vide: Santha v. Cherukutty, A.I.R. 1972 71. Therefore, the judgment and decree of the trial court in O.S.No.178 of 1978 aside and the suit is decreed as prayed for. 13. Consequently, Appeal No.502 of 1980 is allowed but in the circumstances of the costs. B.S. — - App.No.582 of 1984 dismissed/App.No.502 of 1980 allowed.