T.K. Joseph, J.@mdashDefendant 1 is the appellant. The four plaintiffs of whom the 2nd and 3rd were minors on the date of the suit sued for
cancellation of a sale deed executed by their deceased father Kasim Pillai and their elder brothers defendants 2 and 3 to defendant 1 and for
recovery of possession of the property with mesne profits. All the plaintiffs were minors on the date of the sale deed Ex. A dated 13-8-1117 and
their father who was their lawful guardian executed the deed in that capacity.
The property originally belonged to the deceased mother of the plaintiffs and defendants 2 and 3. It was alleged by the plaintiffs that the sale deed
was unsupported by consideration and necessity and that it was invalid. The mesne profits from the whole property were estimated at 110 fanams
per annum. Defendant 1 contended that the sale deed was supported by consideration and necessity and that the sale was a valid transaction and
that in any event defendants 2 and 3 and their father were competent to sell their shares in the property.
It was also contended that defendant 1 had effected valuable improvements after the purchase and that the amount claimed as mesne profits was
excessive. The trial court set aside the sale deed in respect of plaintiff''s 21/44th share of the plaint property. Proportionate mesne profits were
allowed at the rate claimed in the plaint. Defendant 1 preferred an appeal to the District Court which proved unsuccessful.
He had raised a plea of limitation in the lower appellate court but the court refused to consider the same on the ground that the plea was not raised
in the court of first instance. Defendant 1 has preferred this Second Appeal from the concurrent decrees against him.
2. The first point urged on behalf of the appellant is that the plea of limitation should have been upheld even though it was not raised in the trial
court. This argument was based on S. 3 and Art. 44, Indian Limitation Act. Article 44 provides for a period of three years for a suit by a ward
who has attained majority to set aside a transfer of property by his guardian, the starting point of limitation being the date on which the ward attains
majority.
It was contended that on the averments in the plaint the suit was prima facie barred by limitation in respect of the shares of plaintiffs 1 and 4 who
were 25 and 23 years of age respectively on the date of the suit. The sale deed in question was executed by their father who was their ''de jure''
guardian. It was also urged that under S. 3, Limitation Act, the court had a duty to see whether the suit was barred by limitation even though the
plea of limitation was not set up by defendant 1 in the trial court.
This section compels the court to dismiss the suit if it is time-barred although the defence of limitation has riot been set up and the plaintiff must
show that his suit has been instituted within the period of limitation or that there are circumstances which take his case out of the ordinary period of
limitation. The burden rests in the first instance upon the plaintiff to show that his suit is not instituted after the period prescribed therefor by the first
schedule.
Section 3, Limitation Act is peremptory and it is the duty of the court to notice the Limitation Act and give effect to it even if it is not referred to in
the pleadings. The appellate court is not bound to consider a plea of limitation set up for the first time in appeal if it is a mixed question of fact and
law and the question cannot be decided without taking fresh evidence. The defence of limitation which was raised in the lower appellate court was
one which could be decided without taking any evidence, because on the averments in the plaint the suit was ''prima facie'' barred by limitation in
respect of the shares of plaintiffs 1 and 4 and no case of exemption was pleaded.
The suit was instituted more than three years-after plaintiffs 1 and 4 attained majority and it is admitted that Kasim Pillai their father and guardian
acted on their behalf in executing the deed. In my opinion the lower appellate court was not right in declining to consider the defence of limitation. I
hold that the suit as regards the shares of plaintiffs 1 and 4 is barred under Art. 44, Limitation Act and that plaintiffs 2 and 3 alone are entitled to
have the sale deed cancelled in respect of their respective shares.
Learned counsel for the appellant fairly conceded that the sale deed could not be upheld in respect of the shares of plaintiffs 2 and 3 as the sale
was not effected for any of the approved purposes under Muhammadan Law. The sale deed Ex. A is therefore set aside in respect of the 12/44th
share of plaintiffs 2 and 3 and their right to recover possession of such share is declared.
3. No evidence was adduced to prove the claim in respect of value of improvements. It must, therefore, be taken that defendant 1 had not effected
any improvements after the date of the sale. As regards the claim for mesne profits defendant 1 did not state what the mesne profits would be and
the courts below have accepted the plaintiffs'' estimate of the same. The decree in respect of mesne profits does not therefore require interference
except to the extent of making proportionate reduction in the light of the finding regarding the claims of plaintiffs 1 and 4.
4. In the result, the sale deed Ex. A is set aside in respect of the 12/44th share of plaintiffs 2 and 3 and they are given a decree for recovery of the
same. This will be treated as a preliminary decree. The trial court will pass a final decree for partition of the said share viz., 12/44, by metes and
bounds. Plaintiffs 2 and 3 are allowed mesne profits at the rate of 30 fanams per annum for the period for which the same is claimed before the
date of the suit and thereafter at the same rate subject to the statutory limits.
The Second Appeal is allowed to the above extent and dismissed in other respects. Plaintiffs 2 and 3 are allowed 1/4th of their costs hitherto
incurred and defendant 1 will bear his costs. Costs incurred hereafter will be provided for in the final decree.