Narayan Vs Babasaheb .

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3486 OF 2016 ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 15966 OF 2012

NARAYAN ...APPELLANT

VERSUS

BABASAHEB & ORS. ...RESPONDENTS

J U D G M E N T

N.V. RAMANA, J.

Leave granted.

2. The appellant is before us aggrieved by the Judgment and

decree passed by the High Court of Bombay, Bench at Aurangabad,

dated 5.10.2011 in Second Appeal No.213 of 2004 wherein and

whereby the High Court has confirmed the judgment and decree of

the Courts below.

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3. This Court, while issuing notice on 27th April, 2012, has passed

the following order:

“Delay condoned.

Issue notice returnable in ten weeks limited to the question as to whether the Suit filed in the year 1989 with regard to the sale deed dated January 20, 1982 was within limitation.

Dasti, in addition to the ordinary process.

In the meanwhile, the parties shall maintain status quo with regard to the property which is subject matter of the sale deed dated January 20, 1982.”

4. In the light of the order passed by this Court on 27.04.2012, we

are confining ourselves only to the question as to whether the Suit

filed in the year 1989 in respect of a sale deed dt. 20.01.1982 is well

within limitation or barred by limitation.

5. The appellant before us is the 1st defendant in the Suit.

Respondents 1 to 5 are the plaintiffs and the 6 th respondent is

defendant no.2. For the purpose of convenience, the parties are

referred as they are before the trial Court.

6. The brief facts which are necessary for proper appreciation of

the dispute between the parties in nutshell are as follows:

The plaintiff/respondents 1 to 5 filed Reg. Civil Suit No.12 of

1989 against the 1st defendant (appellant herein) and 2nd defendant

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(respondent No. 6). The Suit was filed seeking the relief of partition

and for a declaration that the sale deed dated 20.01.1982 and

28.11.1988 executed by defendant No.2 in favour of defendant No.1

are not binding and to set aside the same and also for recovery of

possession of the Suit schedule property and for mesne profits.

7. The brief averments of the plaint are that the plaintiffs 1 and 2

are the real brothers and the 2nd plaintiff, being minor, is under the

guardianship of plaintiff No.1. Plaintiff Nos.3 to 5 are the real sisters,

whereas defendant No.2 is their mother and the defendant No.1 is

the purchaser in whose favour defendant No.2 alleged to have

executed the sale deeds dated 20.01.1982 and 28.11.1988 which are

sought to be set aside and defendant No.3 is another sister who is

married about 12 years back and whose whereabouts are not known

to the plaintiffs. The 3rd defendant is later impleaded.

8. It is the specific case of the plaintiffs that their father is the

original owner of the Suit schedule property which is ancestral

property. He died in the year 1972 leaving behind him his two sons,

four daughters and the widow i.e. the 2nd defendant. After the death

of their father, the 2nd defendant, who is alleged to be a person of

loose character, left the matrimonial home and married one Begaji.

The father of the plaintiffs, during his lifetime, performed the marriage

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of plaintiff Nos.3 and 4 and the marriage of the 5th plaintiff was

performed by the1st plaintiff. The 2nd defendant, without there being

any legal necessity, has alienated the property for a meager amount

of Rs.6,000/- when the surrounding lands were fetching an amount of

Rs.15,000/-. At the time of execution of the second sale deed,

though the 1st plaintiff was major, he was shown as minor. It is stated

that as the 2nd defendant was never taking care of them at any point

of time and staying with some other person, she cannot be termed as

a guardian. The 1st defendant, without paying any consideration, in

active connivance with the 2nd defendant, has got the sale deed

registered with an intention to defraud the interest of the minors. It is

further pleaded that as on the date of execution of the second sale

deed, the land fetches an amount of Rs.20,000/- per acre, apart from

that as the 1st defendant is in possession of the property, they are

entitled to mesne profits at the rate of Rs.2,000/- per annum from the

date of taking over possession by the 1st defendant till the date of

recovery of possession.

9. The defendants filed the written statement resisting the claim of

the plaintiffs by denying the averments in the plaint and put forth their

case stating that the 2nd defendant sold the Suit schedule property for

the purpose of legal necessity. She had the responsibility of getting

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her daughters married, maintaining the large family and under those

circumstances she was compelled to sell the property and further the

consideration received was also adequate and as such the sale

deeds are binding on the plaintiffs. The 2nd defendant took the

objection that one of her daughters was not made as a party to the

Suit as such Suit requires to be dismissed for non-joinder of proper

and necessary parties and accordingly sought for dismissal of the

Suit.

10. Later the 3rd defendant was arrayed as a party to the Suit and in

spite of the best efforts by the plaintiffs, the notice could not be

served and it was reported that her whereabouts are not known for

more than ten years. No written statement was filed on her behalf.

11. The trial Court, after a full-fledged trial, has come to the

conclusion that under Section 11 of the Hindu Minority and

Guardianship Act, 1956 (for short ‘the 1956 Act’) the sale made by

the de facto guardian of the minor is void ab initio and is incapable of

subsequent clarification in the absence of evidence to show that the

transfer is made for legal necessity. Hence, the sale deeds are not

binding on the plaintiffs and accordingly decreed the Suit holding that

the plaintiffs are entitled to partition and separate possession of their

share. Plaintiffs 1 and 2 are entitled to 7/12 th share and plaintiffs 3 to

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5 are entitled to 1/24th each and the 2nd defendant is entitled to 7/24th

share and plaintiffs are entitled for mesne profits.

12. Assailing the said judgment and decree, the 1st defendant has

filed RCA.No.120/1991 on the file of the District Judge, Parbhani.

The issue of limitation was raised by the defendants before the 1st

appellate court contending that the Suit is barred by limitation as per

Article 60 of the Limitation Act, 1963 (for short ‘the Act’) and as on the

date of filing of the Suit, except the 2nd plaintiff (Waman), all other

plaintiffs are majors and hence the Suit ought to have been instituted

within three years as envisaged by Article 60 of the Act. It is further

urged that the legal disability of 2nd plaintiff (Waman) does not entitle

other plaintiffs to institute the Suit after the prescribed period in the

Act and relied upon Section 7 of the Act. As per the cause title in the

plaint, as on the date of filing of the Suit, the 1st plaintiff was aged 20

years, the 2nd plaintiff was minor and plaintiffs 3, 4 and 5 were aged

29, 27 and 25 years respectively. Basing on the contentions, the

appellate Court has come to the conclusion that Article 60 of the Act

is not applicable to the facts of the case as the 2nd defendant is not

the guardian appointed by the Court. Therefore, Article 109 of the

Act, which prescribed 12 years is applicable where the alienation

made by the father of the ancestral property by the Hindus who are

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governed by the Mitakshara law and hence the Suit filed in the year

1989 is well within limitation. But however, the appellate court has

modified the decree to the extent that the 1st defendant is entitled to

the share of the 2nd defendant.

13. The unsuccessful and unsatisfied 1st defendant has approached

the High Court of Bombay, Bench at Aurangabad by way of Second

Appeal No.223/2004. The High Court has dismissed the appeal

holding that Article 109 of the Act applies to the alienation made by

the mother and Article 60 of the Act does not apply to the facts of the

case and its application altogether is in a different eventuality and

Section 109 of the Act applies to the facts of the case and the Suit is

well within limitation. Against the said order, the present appeal is

filed before this Court.

14. We are not inclined to go into any of the factual issues or

otherwise which has attained finality and we are restraining ourselves

to the limited question whether the Suit filed in the year 1989 for

setting aside the sale deed dated 20.01.1982 is governed under

which Article of the Limitation Act and whether the same is within

limitation or not?

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15. We have heard the learned counsel on either side and given

our anxious consideration to their submissions, to the relevant

provisions of the Act and the material placed before us.

16. It is argued on behalf of the appellant/1st defendant that a

challenge to the sale deed dated 20.01.1982 is barred by limitation as

Article 60 of the Act applies to the facts of the case and the limitation

is 3 years. It is contended by him that the Courts below have

erroneously applied Article 109 and further Article 109 applies to

cases where alienation was made by the father but in the case on

hand, alienation was made by the mother. He further submitted that

the interpretation of Articles under the Act is against the settled

principles of interpretation of statutes and when a provision is

provided exclusively which deals with alienation made by father, the

Courts below were not right in applying the same to the alienation

made by the mother. It is for the first time contended before the

Court that Article 110 of the Act applies but the provision will be

applied only once the sale deed dated 20.01.1982 is set aside and

sought for allowing the appeal.

17. On the other hand, the learned counsel appearing on behalf of

the respondents/plaintiffs has urged that Article 60 is applicable to

cases where guardian sells exclusive property of minor but not joint

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family property. Further the residuary clause has no application as it

will apply only when there is no other Article provided under the Act

and he further stated that the case of the plaintiffs squarely falls

under Article 110 of the Act and as such the Suit filed by the plaintiffs

is well within the limitation and sought for dismissal of the appeal.

18. In the light of the submission made by the counsel, before we

proceed to deal with the main issue, it is appropriate to have a look at

Section 7, Articles 60, 109, 110 and 113 of the Act which read as

follows:

Section 7 : Disability of one of several persons:

Where one of several persons jointly entitled to institute a Suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

Explanation I: This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property;

Explanation II: For the purpose of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of

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giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property. Articles 60, 109, 110, 113 of the Act:-

60. To set aside a transfer of property made by the guardian of a ward

(a) by the ward who has attained majority;

(b) by the ward’s legal representative-

(i) When the ward dies within three years from the date of attaining majority;

(ii) When the ward dies before attaining majority.

Three years

When the ward attains majority.

When the ward dies.

109. By a Hindu governed by Mitakshara law to set aside his father’s alienation of ancestral property.

Twelve years The date of the dispossession or discontinuance.

110. By a person When the exclusion

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excluded from a joint family property to enforce a right to share therein.

Twelve years becomes known to the plaintiff.

113. Any Suit for which no period of limitation is provided elsewhere in this Schedule.

Three years When the right to sue accrues.

19. Before we venture to discuss the applicability of Section 7 of

the Act which deals with disability of one of several persons, we have

to bestow our attention to the Articles which are applicable to the

facts of the case.

20. In the case on hand, there cannot be any dispute about the fact

that after the death of the 2nd defendant’s husband automatically the

2nd defendant becomes a natural guardian to her children. On this,

the finding of the lower appellate court, that as she was not the

guardian appointed on the day to alienate the Suit schedule property

therefore Article 109 of the Act applies which gives 12 years limitation

from the day the alienee takes possession of the property and the

alienation made by the father of ancestral property of the Hindus who

are governed by Mitakshara law, and that the Suit is well within

limitation, cannot be sustained.

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21. Even the High Court has proceeded on the same notion that

Article 60 of the Act applies where the ward files a Suit after attaining

majority, for setting aside transfer of property made by his guardian

when he was minor.

22. The High Court has further observed that under Article 109 of

the Act, a long rope is given to file the Suit to the plaintiff than a Suit

filed by the plaintiff under Article 60 of the Act and the case of the

plaintiff strictly falls under Article 109 of the Act.

23. A bare reading of Section 8(1) of the 1956 Act indicates that it

empowers the natural guardian to do all the acts which are necessary

or reasonable or proper for the benefit of the minor. Section 8(2)(a)

of the 1956 Act prescribes that either the purchaser or the seller

should obtain the permission of the District Court to transfer the

property by sale.

24. Hence, the present transaction on the face of it is in

contravention of the mandatory provisions laid down by the 1956 Act.

25. When once a transaction takes place in the name of the minor

which is in contravention of the 1956 Act and which is not done for

legal necessity, such transaction is voidable and unless such a

transaction is sought to be impeached or set aside, the question of

recovery of possession of that property does not arise.

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26. A close analysis of the language of Article 60 would indicate

that it applies to Suits by a minor who has attained majority and

further by his legal representatives when he dies after attaining

majority or from the death of the minor. The broad spectrum of the

nature of the Suit is for setting aside the transfer of immovable

property made by the guardian and consequently, a Suit for

possession by avoiding the transfer by the guardian in violation of

Section 8(2) of the 1956 Act. In essence, it is nothing more than

seeking to set aside the transfer and grant consequential relief of

possession.

27. There cannot be any doubt that a Suit by quondam minor to set

aside the alienation of his property by his guardian is governed by

Article 60. To impeach the transfer of immovable property by the

Guardian, the minor must file the Suit within the prescribed period of

three years after attaining majority.

28. The Limitation Act neither confers a right nor an obligation to

file a Suit, if no such right exists under the substantive law. It only

provides a period of limitation for filing the Suit.

29. Hence, we are of the considered opinion that a quondam minor

plaintiff challenging the transfer of an immovable property made by

his guardian in contravention of Section 8(1)(2) of the 1956 Act and

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who seeks possession of property can file the Suit only within the

limitation prescribed under Article 60 of the Act and Articles 109, 110

or 113 of the Act are not applicable to the facts of the case.

30. The High Court as well as the Trial Court erred in applying

Article 109 of the Act, where Article 109 of the Act clearly speaks

about alienation made by father governed by Mitakshara law and

further Courts below proceeded in discussing about the long rope

given under Article 109 of the Act and comparatively lesser time

specified under Article 60 of the Act. It is well settled principle of

interpretation that inconvenience and hardship to a person will not be

the decisive factors while interpreting the provision. When bare

reading of the provision makes it very clear and unequivocally gives a

meaning it was to be interpreted in the same sense as the Latin

maxim says “dulo lex sed lex”, which means the law is hard but it is

law and there cannot be any departure from the words of the law.

31. Hence, in view of our above discussion, the limitation to file the

present Suit is governed by Article 60 of the Act and the limitation is 3

years from the date of attaining majority. When once we arrive at a

conclusion that Article 60 of the Act applies and the limitation is 3

years, the crucial question is when there are several plaintiffs, what is

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the reckoning date of limitation? A reading of Section 7 makes it clear

that when one of several persons who are jointly entitled to institute a

Suit or make an application for the execution of the decree and a

discharge can be given without the concurrence of such person, time

will run against all of them but when no such discharge can be given,

time will not run against all of them until one of them becomes

capable of giving discharge.

32. In the case on hand, the 1st plaintiff was 20 years old, the 2nd

defendant was still a minor and the plaintiffs 3, 4 and 5, who are

married daughters, were aged 29, 27 and 25 respectively, on the date

of institution of the Suit in the year 1989. As per Explanation 2 of

Section 7, the manager of a Hindu undivided family governed by

Mithakshara law shall be deemed to be capable of giving a discharge

without concurrence of other members of family only if he is in

management of the joint family property. In this case, plaintiffs 3 to 5

though majors as on the date of institution of Suit will not fall under

Explanation 2 of Section 7 of the Limitation Act as they are not the

manager or Karta of the joint family. The first plaintiff was 20 years

old as on the date of institution of the Suit and there is no evidence

forthcoming to arrive at a different conclusion with regard to the age

of the 1st plaintiff. In that view of the matter, the Suit is instituted well

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within three years of limitation from the date of attaining majority as

envisaged under Article 60 of the Act.

33. Hence, in view of the above discussion, as the appeal is devoid

of merits, we deem it appropriate to dismiss the appeal and

accordingly the appeal is dismissed but in the circumstances without

costs.

..................................J. (MADAN B. LOKUR)

……………................J. (N.V. RAMANA)

New Delhi, April 5, 2016

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NARAYAN Vs BABASAHEB .