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Tuesday, April 5, 2016

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.= 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 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 within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Act.

                                                                  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.
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 6th   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  (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 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  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 7/12th share and plaintiffs 3 to 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 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?
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  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 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           |Three years   |When the ward       |
|                    |              |attains majority.   |
|(a) by the ward who |              |                    |
|has attained        |              |                    |
|majority;           |Three years   |                    |
|                    |              |                    |
|(b) by the ward’s   |              |                    |
|legal               |Three years   |                    |
|representative-     |              |When the ward       |
|                    |              |attains majority.   |
|(i) When the ward   |              |                    |
|dies within three   |              |                    |
|years from the date |              |                    |
|of attaining        |              |When the ward dies. |
|majority;           |              |                    |
|                    |              |                    |
|(ii)  When the ward |              |                    |
|dies before         |              |                    |
|attaining majority. |              |                    |
|                    |              |                    |
|109.  By a Hindu    |Twelve years  |The date of the     |
|governed by         |              |dispossession or    |
|Mitakshara law to   |              |discontinuance.     |
|set aside his       |              |                    |
|father’s alienation |              |                    |
|of ancestral        |              |                    |
|property.           |              |                    |
|                    |              |                    |
|110.  By a person   |              |When the exclusion  |
|excluded from a     |Twelve years  |becomes known to the|
|joint family        |              |plaintiff.          |
|property to enforce |              |                    |
|a right to share    |              |                    |
|therein.            |              |                    |
|                    |              |                    |
|113.  Any Suit for  |Three years   |When the right to   |
|which no period of  |              |sue accrues.        |
|limitation is       |              |                    |
|provided elsewhere  |              |                    |
|in this Schedule.   |              |                    |

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.
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.
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  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
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 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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