Chinnaiah Kownder vs Kattayya Kownder

V. Ramaswami, J.—The defendant is the appellant. The suit was filed by the respondent for a declaration of his title to the suit property and

for an injunction. The suit property originally belonged to the defendant and his elder brother one Rama Gounder. In their hands it was a joint

family property. The elder brother of the defendant died somewhere in the year 1950 when the defendant was a minor. The defendant''s parents

had died earlier than that. Therefore the defendant was brought up by his maternal uncle. The maternal uncle sold the property to the plaintiff on

12-11-1956 as guardian of the defendant who was then minor. The present suit was filed by the plaintiff on 21-8-1970, as already stated for a

declaration and injunction. In the plaint it was stated that at the time when the sale deed was executed on 12-11-1956. the defendant was about

17 years old. But this was denied by the defendant in the written statement and he contended that he was only about 11 years old at the time of the

transaction. The main defence of the defendant was that the maternal uncle was not the legal guardian or the de facto guardian and that the sale

deed in favour of the plaintiff was void and inoperative. The defendant also pleaded that the sale was not supported by consideration and it was

also not for necessity binding on the minor. Both the courts below have concurrently hold that though the sale deed by the maternal uncle was void

and inoperative both on the ground that it was not for necessity or for any binding purposes, and also on the ground that the maternal uncle was

neither a legal nor a de facto guardian of the minor, the plaintiff is entitled to the declaration and injunction as on the date of filing of the suit, he had

prescribed title to the suit property by adverse possession.

In this second appeal, the learned counsel for the defendant-appellant contended that since the transaction was held to be void, the period of

limitation for prescribing title by adverse possession is 12 years from the date of the defendant attaining the age of majority, that the defendant has

stated in the written statement, that he was only 11 years in 1956 and he would have attained the age of majority only in 1963, and if 12 years is

reckoned from 1963, the plaintiff should prove adverse possession till 1975 in order to get a declaration of title on the basis of adverse possession

and since the suit itself was filed on 21-9-1970, the plaintiff was not entitled to the declaration of title as prayed for.

The defendant was 17 years old at the time of the sale in 1956, and therefore, he is not correct in contending that he was only 11 years old.

There is no finding on this question by the Courts below. But in view of the categorical statement in the written statement that he was only 26 years

old in 1971, and 11 years of the age in 1956, we shall proceed to consider the question on the basis that the plaintiff was only 11 years old in

1956.

The argument of the learned counsel for the defendant-appellant is that during the minority of the appellant, the plaintiff''s possession was not

adverse to him and that therefore his right to recover possession would not be lost until after the expiry of a period of 12 years from the date of

attaining the age of majority. In this connection, he relies on Article 65 of the Limitation Act, 1963 (Central Act 36 of 1963), which provided a

period of 12 years for a suit for possession of Immovable property based on title from the date when the possession of the defendant became

adverse to the plaintiff. The proposition advanced by the learned counsel for the appellant that in every case where the sale is void as against a

minor, the purchaser shall not be deemed to be in adverse possession during the minority cannot be accepted without any limitation. In Kalidindi

Seetaramaraju Vs. Vegesana Subbaraju and Others, , a similar question was considered in a case where a lunatic''s wife who was neither his

committee in lunacy nor his legal guardian sold his lands to a third party. It was held in that case that it could not be stated as a general proposition

that there could be no adverse possession of property which belongs to a lunatic or a minor during the continuance of the launcy or minority and

the question in each case had to be decided with reference to the anterior relationship between the person taking possession and the minor or

lunatic and to whether any circumstances exist which would entitle the court to hold that the person who entered into possession did so under

circumstances which would in law make him only an agent or bailiff of the minor or lunatic. The learned Judges observed that under the Limitation

Act, lunacy or minority, does not by itself prevent time from running as against the lunatic or minor, although an extended period is provided in such

cases. This decision is followed in Rachappa Totappa Vs. Madivalawa Rachappa, , where also it was hold that where the person entering into

possession is under no duty to the minor, and has entered into possession for his own benefit and in assertion of his title hostile to that of the minor,

limitation begins to run from the date when he has taken possession and his adverse possession against the minor commences from the date on

which he has taken possession, though the minor should be entitled to file a suit within three years from the date of his attaining majority. But the

learned counsel for the appellant relied on a decision of the Calcutta High Court in Lalit Kumar Das Chaudhury and Others Vs. Nogendra Lal Das

and Others, , where we find a general statement that the possession of the purchaser could not be adverse to the minor until he attained the age of

majority. For this proposition, the learned Judge has not given any authority, but as we found it, this is contrary to the various decisions of this court

and the Bombay High Court. It is also seen from Section 6 of the Limitation Act, that minority does not in any way affect the possession being

adverse. Clause (1) of that section reads as follows-

Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is

to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has

ceased, as would otherwise, have been allowed from the time specified therefore in the third column of the Schedule.

It is seen from the first part of this provision that the first question to be determined is assuming that the person against whom the provisions of the

Lim. Act are applied is a major and not suffering from any disability, what would be the time within which the suit will have to be filed. If the

transaction is void, the purchaser would be prescribing title by adverse possession from the date on which he took possession under the void

document. The possession thus becomes adverse from the date on which the sale took place. The second part of Section 6(1) provides that if the

person against whom the adverse possession had commenced is a minor, the minor will have an extended period of limitation for recovery of

possession from the purchaser and a suit for recovery of possession could be filed within the same period after the disability has ceased, as would

otherwise have been allowed from the time specified therefore in the third column of the schedule. If this clause alone had stood, probably the

learned counsel for the appellant would be well-founded in his contention that the period of 12 years for prescribing title by adverse possession will

have to be calculated from the date when the minor attained the age of majority. But u/s 8 of the Act, it is provided that nothing in Section 6 shall

be deemed to extend for more than three years from the cessation of the disability the period of limitation for any suit or application. There-fore,

though prima facie, under Article R5 read with Section 6(1) of the Lim. Act, a suit for recovery of possession could be filed! by the minor within

12 years from the date when he attained age of majority in case where the transaction was void, by reason of Section 8, such a suit will have to be

filed (within) three years of attaining of the age of majority and the minor could not claim the extended period of 12 years. The period of limitation

therefore for recovery of possession by a minor in respect of a void transaction is 12 years from the date of sale or three years after he attained the

age of majority whichever is longer. In this case whether it is three years after the attaining of majority or 12 years from the date of sale, the period

had already lapsed by the time the plaintiff filed the suit. In such a case, it is open to the plaintiff to ask for a declaration of his title, in effect the suit

is for a declaration that the defendant is not entitled to recover possession of the property from the plaintiff and that his remedy is lost or his right is

extinguished. Section 27 of the Limitation Act provides that at the determination of the period of limitation provided thereunder, his right to such

property shall be extinguished. If the defendant''s right is extinguished, the plaintiff is entitled to the declaration that he is entitled to the property.

The suit construed in that manner is maintainable. As already stated, that even if the defendant''s contention that he was only 11 years old in 1956,

is to be accepted, since his right having been extinguished, the courts below were right in giving the declaration of title to the plaintiff. The second

appeal accordingly fails and the same is dismissed. There will be no order as to casts.