Krishna Kr. Roy vs Satyajit Sukul and Others

J.N. Sarma, J.—This appeal has been filed by the Defendants. The Plaintiff brought a suit being Title Suit No. 75/1975 in the Court of Assistant District Judge at Silchar. The suit was instituted on 7.7.75 and it was subsequently transferred to the Court of the Munsiff No. 2 at Silchar where the preliminary jurisdiction of the Court was established and it was numbered as Title Suit No. 264/1981. The suit was dismissed by the learned Munsiff on 30.5.1988. There was an appeal being Title Appeal No. 39/1988 and that appeal was allowed by the learned Asstt. District Judge No. 1, Cachar at Silchar. Hence this Second Appeal.

I have heard Mr. N.M. Lahiri, learned Sr. counsel for the Appellant assisted by Mr. N. Choudhury, learned advocate and also heard Mr. B.K. Goswami, learned Sr. Advocate for the Respondent assisted by Mr. C.K.S. Baruah and Smti T. Goswami.

The brief facts of the case are as follows:

The story behind the suit is that the suit land described in schedule 2 of the plaint appertaining to dag No. 3529 of patta No. 379 of Silchar town which is described in schedule 1 of the plaint. The land in schedule 1 of the plaint belonged to Defendant No. 6 i.e. Sri Narsing Bigraha from whom late Lasman Prasad took settlement in the year 1907 by a registered Kabulivat. Lasman Prasad Sukul was the resident of Kanauj in Uttar Pradesh and was governed by the Benaras School of Mitakshara Law of Hindu Succession. Lasman Prasad Sukul died leaving his son Ram Datta Sukul. Said Ram Datta Sukul also died leaving two minor sons namely, Surendra Narayan Sukul and anOrs. son and his wife Jhumkon Debi. Jhumkon Debi appointed one Bholanath Sukul as guardian of her two minor sons. Her minor son Radha Raman died bachelor and thereafter Surendra Narayan Sukul on attaining majority removed Bholanath Sukul from guardianship by a suit. Sukul family had a sweet-meat shop which was subsequently wounded up due to extravagant style of Surendra Narayan Sukul. The sons and grand sons who are Plaintiffs in the suit also acquired the right in the ancestral property left behind by Lasman Prasad Sukul. On 1.2.1962 Surendra Narayan Sukul sold the 2nd schedule land to Defendant No. 1 without the knowledge of the Plaintiffs who are coparceners and enjoyed the same right as Surendra Narayan Sukul enjoyed. Surendra Narayan Sukul had no legal necessity to transfer the property but illegally transferred the 2nd schedule land to Defendant No. 1. On 7.7.1972 the suit property was gutted and then the Plaintiffs went to put fencing over the same when Defendant No. 1 raised objection and then it was divulged for the first time that he had purchased the suit property from Surendra Narayan Sukul. Thus, the Plaintiffs came with the suit on 7.7.1975 for declaration of their jote right over the suit property and also for confirmation of possession as well as for recovery of khas possession if it was found that the Plaintiffs have been dispossessed.

The Defendant No. 1 alone contested the suit. His case is that his father Kali Kumar Roy who was made Defendant No. 2 in the suit was a tenant in one of the rooms of the suit property under Surendra Narayan Sukul and through his father Defendant No. 1 was in possession of the same and was also running his own business. Surendra Narayan Sukul was involved in litigation and his family members increased. So he was unable to manage his family and was in debt severely. Defendant No. 1 also gave loan to Surendra Narayan Sukul on various occasions for the marriage of his daughter and also for education of his sons. Surendra Narayan Sukul was in need of money and also with a view to settle his debts, he sold the 2nd schedule land to Defendant No. 1 and delivered possession thereof. Thereafter Defendant No. 1 took a fresh settlement from Defendant No. 6 and also mutated his name in the Municipal record by way of transfer of holding in his favour and also collected rents from Ors. tenants in the suit property. Apart from the above the Defendant took the plea of want of cause of action, maintainability and limitation in respect of the suit.

The two issues which are relevant for the determination of the controversy are issue No. 3 and issue No. 7. These issues are as follows:

Issue No. 3. is the suit barred by limitation. Issue No. 7 whether the Plaintiff has jote right, title and interest of whether the Defendant No. 1 acquired jote right in the 2nd schedule of the said land and possession since the date of his alleged purchase.

The learned Munsiff discussed all the evidence and the materials on record and found as follows with regard to the issue No. 7:

It is also admitted fact that vide Ext. A, Surendra Nr. Sukul, Defendant No. 7 sold on 1.2.62, 2 Kathas 5 Chattacs 8 gondas of land as described in 2nd schedule -of the plaints along with the houses thereon. It appears from the evidence of P.W. 1 that his father sold the land and delivered possession to Defendant No. 1 on 1.2.62 and since the then Defendant No. 1 is in possession of the 2nd schedule land and houses thereon, and possession of the 2nd schedule land by Defendant No. 1 is supported and corroborated by D.W. 1, 2, 3 and 4.

Moreover, Defendant No. 1 vide Ext. U took permission from the Municipality for construction of houses on the 2nd schedule land. Defendant No. 1 paid Municipal Taxes vide Ext. G. Defendant No. 1 filed ejectment suit over the 2nd schedule land against Banku Bihari Ghose and in that suit Defendant No. 7 Surendra Nr. Sukul was made a party vide T.S. 128/65 and got decree. T.S. 128/65 Ext. G.H.J. clearly shows that Defendant No. 1 is controlling the affairs of monthly tenants in respect of the houses on 2nd schedule land.

Again Defendant No. 1 constructed R.C.C. building and boundary wall entires costs more than Rs. 40,000/- and this is admitted by P.W. 1 in his evidence. Defendant No. 1 got holding in his name and paid revenue and Ors. Municipal and Urban Taxes in his name.

It appears from Ext.-A that due to financial need Defendant No. 7 sold the land of the 2nd schedule and the houses thereon to Defendant No. 1. D.W. 1 and 2 also stated that the Defendant No. 7 sold the said land as he was burdened with debts and Ors. legal necessity, educational expenses of the children, marriages of daughters, and Ors. necessary purpose. It also appears from the evidence of P.W. 1 Biswajit Sukul that Defendant No. 7 is the Karta of their family. So it is a clear proof that Defendant No. 7 sold the 2nd schedule land to Defendant No. 1 for legal necessity on behalf of the family and this with the sale of 2nd schedule land by Defendant No. 7 the Plaintiffs have lost their jot right, title and interest. Learned advocate for the Plaintiffs referred AIR 1977 which is not applicable here in this present suit. Again, Defendant No. 1''s continuous possession over the 2nd schedule land since 1.2.62 and adverse possession of the Plaintiffs since 1.2.62 date of his purchase, Defendant No. 1 acquired jote right and her Plaintiffs adverse possession is more than twelve years.

Hence, this issue is accordingly decided in favour of the Defendant No. 1.

Regarding issue No. 3 the learned Munsiff has found as follows:

The Plaintiffs case is that on 7.7.72 when the houses on the 2nd schedule land was gutted by fire, they came to know about the alleged sale deed executed on 1.2.62 and limitation would run with the knowledge of Defendant No. 1''s purchase and the suit was filed within the period of limitation (within 12 years). From the decision of the foregoing issue No. 7 it appears that Defendant No. 7 sold the 2nd schedule land to Defendant No. 1 on 1.2.62 and delivered possession of the land and the houses there on to Defendant No. 1 and it was within the knowledge of the Plaintiffs. Hence, the Plaintiffs contention cannot be accepted. The alleged alienation took place on 1.2.62 and the present suit was filed on 7.7.75 which is beyond the period of limitation (beyond 12 years).

Again, it is contended that some of the Plaintiffs are minors 5 to 9 and question of limitation will not run. Learned defence Advocate referred Rano Dip Singh v. Parameshwar Prasad, ILR 47 AH 165, AIR 1925 PC 33 --Limitation Act, Section 6, 7 and 8 alienation of property by Hindu Copercener. It is held that whose a suit is brought to contest an alienation of joint family property it is from the date on which the cause of action arose that the period of limitation must be reckoned. Subsequent birth of copercener does not create a fresh cause of action. By the express terms of the section, the extended period of three years after majority can only be claimed by a person entitled to institute the suit at the time from which the period of limitation is to be reckoned. A person who was not in existence at the time does not come within his descriptions and therefore, is not entitled to the three years extension.

This issue is thus answered in affirmative and is decided in favour of the Defendant.

Having held so the suit was dismissed by the learned Munsiff. On appeal the learned Judge found that there was no legal necessity to sell the suit land. But in the finding with regard to the sale of the suit land and with regard to limitation finds that the Plaintiffs have notices of the sale earlier to 7.7.72 when the suit house was gutted by fire and the Defendant No. 1 wanted to construct his own house on the land. Earlier the Plaintiffs were under the bonafide impression that the Defendant No. 1 was continuing in possession as a tenant. Relying Article 109 read with Clause 271 of Mulla''s Hindu Law 16th edition he held that the period of limitation shall run from the date on which an alienee takes possession of the property. Accordingly the findings were set aside and the appeal was allowed. The substantial question of law formulated in this appeal are as follows:

Whether the learned appellate Court erred in law in putting the onus to prove the validity of the sale dated 1.2.62 on the Defendant.

Whether the learned Court below erred in law in not holding the suit to be barred by limitation although the suit was instituted beyond twelve years from the date of execution of registered deed by Defendant No. 12 on 1.2.62 in favour of the Appellant-Defendant No. 1.

Whether the learned lower appellate Court committed error of law in holding that the Defendant No. 1/Appellant acquired no right by virtue of Ext. F, that is, the registered lease deed executed by Narsing Vigraha.

Whether the learned appellate Court below erred in law in not holding that the suit is bad for waiver, estoppel and acquiescende in view of the fact that the Defendant No. 1 purchased the suit land by valid registered sale deed on 1.2.62 from the predecessor-in-interest of the Plaintiffs and having in peaceful possession of the land in pursuance thereto well within the knowledge of the Plaintiffs.

Whether, in the facts and circumstances of the case, the learned appellate Court below erred in law in presuming that the Plaintiffs are guided by Mitakshara law.

It is not necessary to discuss all the questions separately. The two questions which requires consideration in this case is the question of limitation and the question of legal necessity as well as the locus standi of the Plaintiff to file the suit. In Clause 270 of the Mulla''s Hindu Law 16th Edition Page 313 it has been noted who are the persons who can object the alienation by coparceners at the time of alienation what is quoted below was admittedly Plaintiff No. 5 and 6 who are the minors at the time of institution of the suit are not the persons who can object to such alienation made by Defendant No. 7, as there is no evidence what-so-ever to show that these two grounds was in existence on that of sale on 1.2.62.

Clause 270. Objections to alienations by coparceners existing (born or conceived) at the time of the alienation (1) where an alienation is made by a coparcener in excess of his powers, it may be set aside to the extent mentioned in 268 and 269 at the instance of any Ors. coparcener who was in existence at the time of the completion of the alienation (u). It may also be set aside at the instance of any coparcener who, though born subsequent to the date of alienation, was in his mOrs. ''s womb at the date of alienation; the reason is that under the Hindu law a son conceived is, in many respects, equal to a son born (v).

Regarding the minority of the Plaintiffs there is no averments in the plaint that the Plaintiffs No. 1 to 4 were minors on the date of execution of the deed of sale rather it has been conclusively proved by ext. N-OP that Plaintiff Nos. 1 & 2 were majors before the institution of the suit and Plaintiff No. 3 was aged about 17 years 2 months 27 days. Regarding Plaintiff No. 4 nothing has been stated that he was in existence on that particular date. There is no evidence also. There is nothing with regard to this Plaintiff No. 4.

Regarding legal necessity in Mulla''s Hindu Law Clause 243 broadly stated as follows:

Clause 243. What is legal necessity: The following have been held to be family necessities within the meaning of 242,

(a) payment of Government revenue and of debts which are payable out of the family property (a);

(b) maintenance of coparceners and of the members of their families (b);

(c) marriage expenses of male coparceners (c), and of the daughters of coparceners (d);

(d) performance of the necessity funeral or family ceremonies (e);

(e) costs of necessary litigation in recovering or preserving the estate (f);

(f) costs of defending the head of the joint family (g), or any Ors. member (h) against a serious criminal charge;

(g) payment of debts incurred for family business or Ors. necessary purpose. In the case of a manager Ors. than a father, it is not enough to show merely that the debt is a pre-existing debt (i).

It should be borne in mind in this connection that the burden of proof of necessity lies on the purchaser and in this case it shall lie on the Defendant No. 1. The Defendant No. 1 adduced some evidence with regard to this and that was accepted by the learned trial Court as quoted above. Further, in the plaint itself there is statement in para 4 that Surendra Narayan Sukul the Defendant No. 7 could not properly manage properties even after being a major and used to take loans at random for his personal necessity and under such circumstances, their paternal sweet meat shop from which there used to be sufficient income by which more properties were earned in different parts of Cachar district, got wound up. There is no averments in the plaint that these debts incurred by Surendra Narayan Sukul was for immoral purpose and there is also no evidence to show that these dates were for the personal purpose and if the dates were for the moral purpose it would be the pious obligation of the sons to discharge the debt which is necessary to be noted, as it will have some effect on the decision of this case. In para 5 it has been stated that the sale was made not for the legal necessity. In para 15 of the written statement it has been stated as follows:

As Surendra Narayan Sukul was involved in various litigation, his business collapsed and as such used to taken debts from the answering Defendants very often to defray the expenditure of his family including education, marriage of his children and for running litigation for protection of his property and the answering Defendant used to give loans to him sometime on hand note and sometimes believing in his oral statement. Thus Surendra Narayan Sukul remained indebted to the answering Defendant after 1954. Surendra Narayan Sukul is the father of 5 daughters apart from Plaintiffs No. 1 to 4 and his family expenditure could not be managed by the meagre rents. Apart from that there was education, marriage of his children and litigation also. Thus for the necessity of the family and litigations, he was always in need of money and he used to collect the same by way of loans. Under such situation, Surendra Narayan Sukul became indebted to answering Defendant for a big sum of money and for maintaining necessary family expenses, proposed to sell the land and houses described in Schedule II to the answering Defendant and answering Defendant being aggrieved purchased the same having fixed the price at Rs. 12,075/- only and came into possession thereof and on such liquidation of the loan returned the hand notes and paid same amount in cash and Surendra Narayan Sukul from that amount repaid loans incurred due to marriage of his off springs and his Ors. loans, paid expenditure for his litigation and for his family expenses.

It was put to PW-1 in the cross examination that when the 5 sisters were given in marriage the brOrs. s were young and they did not have any independent income. It was further admitted by PW-1 that the father had to incur expenditure for their family expenses. It was also admitted that in the shop was itself closed. However, there is no clear admission by this witness that in the suit instituted being Title Suit No. 185/72 wherein his father deposed as the witness his father admitted that this land was sold in favour of Krishna Kumar Roy and possession was handed over to him after sale. It was also admitted by him that the property had to be mortgaged to run the costs of the family but later on that property was recovered. However, there is clear recital in Ext. A the deed of sale to the fact that he was in dire need of money. All these things would go to show that there was legal necessity to sell the property by Defendant No. 7 in favour of Defendant No. 1 and that was rightly found by the learned Munsiff. The finding of the learned Assistant District Judge on this point is perverse one as he did not consider the relevant piece of evidence and ignored them, as a matter of fact in the entire judgment of the learned Assistant District Judge. There was no discussion of any oral evidence on this point, as in the judgment of reversal it was the bounded duty of the Appellate Court to meet with reasons the finding arrived at by the trial Court, he can set aside the findings of the trial but only with cogent reasons, that is what is not there in the particular case. There was no discussion in that aspect of the matter. Accordingly the finding of issue No. 7 by the learned Assistant District Judge shall stand set aside and I hold that the sell vide Ext. A was by way of legal necessity. The next question is limitation. Mr. Lahiri, learned Sr. counsel submits that the matter is covered by Article 60(a) of the Limitation Act, Article 60(a) is as follows:

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

(a) by the ward three years when the

who has ward attains attained majority. majority.

An unauthorised transfer by an authorised person that is by a guardian is voidable. The suit to set aside such a transfer is covered by this article, under the law when the natural guardian having authority to sell the property of the ward for proper purpose to effect the transfer which is in excess of the power it can not be put in the same position as alienation by unauthorised person. An unauthorised alienation by wrongful guardian is also voidable and must be set aside within the time prescribed by Article 60(a) of the Limitation Act unlike an alienation by an unauthorised person which is void under the law and require not to be set aside under this Article. Article 60 applies to alienation made by guardian de jure as well as guardian de facto. Of course in this case there may be an argument that the Article 60 still apply only if the guardian pretends to act and is shown to have acted as guardian when selling minors property, and if the alienation is made by from claiming that property this article may not apply belongs to the guardian solely. That is what has been made in the instant case. The property appears to be sold by Ext. A is claimed by the Defendant No. 7 be the sole property, so Article 60(a) may not be brought in this case. Next let us see whether Article 109 applies to this case as found by the learned Assistant District Judge. In this connection the learned Assistant District Judge relies on Rano Dip Singh v. Parameshwar Prasad, ILR 47 AH 165, AIR 1925 PC 33 That is a case on different point as that case decided as follows:

Where a suit is brought to contest an alienation of joint family property it is from the date on which the cause of action arose that period of limitation must be reckoned. Subsequent birth of a co-parcener does not create a fresh cause of action or a new starting point from which limitation should be reckoned. By the express terms of the section the extended period of three years after majority can only be claimed by a person entitled to institute the suit at the time from which the period of limitation is to be reckoned. A person who was not in existence at the time does not come within this description and therefore is not entitled to the three years'' extension.

That is the situation in hand but of course this decision shall apply with regard to Plaintiff No. 4, 5 and 6. There is anOrs. aspect of the matter which is to be borne in mind in deciding this controversy as noted by Mulla at page 311 "Sixteenth Edition" which is quoted below:

There is a conflict of opinion whether a sale is effected by the father, and the suit is brought by the sons in their father''s lifetime to set aside the sale, the sale not being one either for legal necessity or for the payment of an antecedent debt, the sons are entitled to a decree without refunding the whole or any part of the purchase money to the purchaser. The High Court of Calcutta has held that they are not entitled to a decree without refunding the whole of the purchase money, the reason given being that immediately the sale is set aside, the purchaser would be entitled to recover the whole of the purchase money from the father, and it would thus become a debt due by the father for which the whole of the joint family property, including the property sold, would be liable by reason of the son''s pious obligation to discharge the father''s debt, unless it was contracted for an immoral purpose (n). This view has been dissented from by the High Court of Lahore (O), Madras (P) Allahabad (q) and Orissa (r).

Shri Goswami, learned Sr. Advocate for the Respondent in this case placed reliance in 1985 P&H 313 Full Bench wherein the Punjab and Haryana High Court pointed out as follows:

It cannot be said that in the States where Mitakshara law applies, alienation of coparcenary property would be binding qua the share of the vendor even though it was made without the consent of Ors. recoparceners and legal necessity nor for the benefit of the estate.

But with all humility I accept the decision of Calcutta High Court as noted by Mulla in the portion quoted above, it is because if the decision of the Punjab and Haryana High Court is accepted the very concept of pious obligation shall fall through as pointed out by the Calcutta High Court in the decision quoted above by Mulla, so even if that view is taken the share of the father shall be the valid sale. Regarding Article 109 of the Limitation Act even if Article 109 is apply it will be barred by time. Article 109 is quoted below:

By a Hindu governed Twelve When the

by Mitakshara years alienee takes law to set aside possession his father''s of the property, alienation of ancestral property.

The admitted position in this case as admitted by the PW-1 himself as indicated above that the alienee took possession of the property on 1.2.62 and the suit having been filed on 7.7.75 i.e. after 12 years and even it is barred by Article 109 of the Limitation Act. From all these angles I arrive at the finding that the Defendant No. 1 acquired valid right to the land. It is not necessary to discuss Ors. aspect of the matter in view of the decision I have arrived at. Accordingly, considering from all these angles the present second appeal is allowed. The judgment passed by the Asstt. District Judge in Title Appeal No. 19/88 shall stand quashed and the judgment passed by the learned Munsiff No. 2 at Silchar in T.S. No. 264/81 shall hold the field.