Nannekhan vs Ganpati and Others

The whole case has been referred to us by the Division Bench for consideration. The facts "of the case briefly are that Ganpati, Respondent 1 filed a suit for possession of the suit lands and for mesne profits against Nannekhan, the present Appellant who was Defendant 1 in the lower Court. The other three Defendants Savla Ram and his two sons (Ganpat and Narain) were impleaded on the ground that they along with Defendant 1 has dispossessed the Plaintiff on 6th Meher 134 (August 1937). The Plaintiff stated in his plaint that he purchased the land from Defendant 1 who was a minor, per his guardian, on 30th Isfandar 1328F, under a registered sale deed and that he was given possession on that date of the land conveyed; that he was dispossessed on 6th Meher 1346F. by the Defendants; that he filed a suit under the provisions of the Specific Relief Act which was dismissed; he, therefore, filed the present suit on 16th Amardad 1348F. for possession.

Defendants 1 and 2 filed a joint written statement. Defendant 1 denied the fact of sale by his guardian and also questioned the validity of the sale on the ground that the guardian had no right to sell the land. He denied Plaintiff''s allegation that he was in possession from the date of the sale deed till the date of his dispossession and stated that he (the Defendant) was in possession from the very beginning. Defendants 3 and 4 were set ''ex parte'' and the case went on for trial. On the pleadings, the first Court framed several issues of which issue No. 3 is the relevant issue for consideration of this appeal. One issue was whether the suit was in time; the second issue was whether the sale deed in question was completed and executed by the guardian of Defendant 1 and whether that was binding upon him. Another issue was with regard to the fact of possession and dispossession as alleged by the Plaintiff. There was an issue also with regard to the mesne profits.

The trial Court after recording the evidence of parties came to the conclusion that the allegation of the Plaintiff that he was in possession from the date of the Sale deed to the date of dispossession was proved, that the sale deed-also was proved but the sale by the mother was not binding on Defendant 1. Therefore the Court dismissed the suit. There was no discussion by the lower Court on the question of adverse possession.

The first appellate Court agreed with the findings of the trial Court that the sale deed and the fact of possession and dispossession as alleged by the Plaintiff was proved and came to the conclusion that the title of Defendant 1 had become extinguished by reason of the possession of the Plaintiff for over the statutory period. The Court, therefore, decreed the suit to the extent of possession and dismissed the same with regard to mesne profits.

Against that judgment the present appeal has been filed by Defendant 1. The Plaintiff has not filed any appeal with respect to his claim for mesne profits disallowed by the lower Court.

The question for decision in this appeal briefly is whether the Plaintiff completed his title by adverse possession and had become the absolute owner of the property. The facts as held to have been proved by both the lower courts are (a) that the sale deed was executed on 30th Isfandar 1328F. in favour of the Plaintiff by the guardian of Defendant 1 when the latter was of 10 years of age; (b) that the Plaintiff got possession on 30th Isfandar 1328F. and (c) that he was dispossessed on 6th of Meher 1346F. It is also clear that the guardian of Defendant 1 had no right to sell the property on behalf of the Defendant who was then a Minor. The plea of the Defendant-Appellant in this case is that, as his guardian was not legally entitled to sell the property, no title passed to the Plaintiff.

The argument of the learned advocate for the Plaintiff-Respondent is that the possession of the Plaintiff had become adverse and that under the provisions of Section 28, Limitation Act read with Sections 6 and 8, the title of Defendant had become extinguished and therefore he had no right to dispossess the Plaintiff. We have, therefore, to decide as to whether the possession of the Plaintiff which was from 30th Isfandar 1328F. to 6th Meher 1346F. had become adverse to that of the minor.

Section 28, Limitation Act lays down that at the termination of the period laid down under the law of limitation to any person for instituting a suit for possession of any property, the right of that person to such property shall be extinguished. Ordinarily the right would get extinguished but here the person against whom adverse possession is set up is a minor. The question, therefore, is whether the title of the Respondent had become perfect by prescription even against him.

Section 6, Limitation Act relates to the period of limitation for filing suits with respect to persons suffering under a legal disability. It lays down that where a person entitled to institute a suit is a minor at the time from which the period of limitation is to be reckoned, he may institute the suit within the same period after disability has ceased as would otherwise have been allowed from the time prescribed therefor. It has to be borne in mind that the provisions of this section are governed and controlled by Section 8, Limitation Act which lays down that nothing in Section 6 shall be deemed to extend for more than 3 years from the cessation of the disability the period within which any suit must be instituted.

From a reading of these two sections, it would be evident that if the minor has, at the date of his attaining the majority, a larger period than that of 3 years as provided under the law of limitation for filing a suit he can file that suit within the original period of limitation though it may, in some cases, be of more than 3 years. But if the period prescribed under the law expires during the time when he is a minor nevertheless the suit would have to be brought within 3 years from the date of his attaining majority. In this case Defendant 1 who was out of possession could have, under the provisions of these two sections, filed the suit for possession in or before 1340F as the cause of action for filing the suit for possession accrued to him on the date of the sale deed and the taking over of the possession of the land by the Plaintiff, i.e., from 30th Isfandar 1328F. By reason of his minority, he is entitled to have a longer period for filing the suit until three years had elapsed after the ceasing of the disability. From the records it is clear that he (Defendant 1) was out of possession since 1328F. and he could have filed a suit for possession as stated above, by 1340F. but he did not do so.

The result is that under the provisions of Section 28, Limitation Act his title to the suit property had become extinguished. He could no Longer be said to be the owner of the property in question and as such he was not entitled to dispossess the Plaintiff on 6th Meher 1346F the Plaintiff''s title having become perfect by prescription in 1340F.

In--''Vasudeva Padhi Khadangat Garu v. Maguni Devan Eakshi Mahapatrulu Garu 24 Mad 337 (PC) (A), the Privy Council held that a poison under disability may, after the disability has ceased, institute a suit within the same period that would have been allowed to him under the schedule, as if he had not been under a disability. The case was decided under the provisions of the Indian Limitation Act, 1877. Section 8 of the present Limitation Act corresponded to the proviso to Section 7, Limitation Act of 1877. With reference to that pro-visa, their Lordships held that the proviso further governed the provisions of ''sections pertaining to the provisions with regard to the persons under disability and laid down that the time allowed after the period when the disability ceased could not, in any case, be extended to more than three years from the date when the disability ceased.

In-- Kalidindi Seetaramaraju Vs. Vegesana Subbaraju and Others, (B), their Lord-shins of the Madras High Court held a similar view. Therein the question of adverse possession and it''s nature were discussed. It was observed that where a person entering into possession a lunatic''s property was in no fiduciary relationship to the lunatic, he must be deemed to have entered into possession for has own benefit and in assertion of a title hostel to, the lunatic, and therefore limitation would begin to run from the date when he took such possession although the lunatic would be entitled to sue for the recovery of the property within 3 years from the date when his disability ceased. The facts presented in the appeal before us are very much similar to this. In this case also the Plaintiff entered into possession on the basis of a sale deed and in assertion of a title based on that document which was clearly hostile to the interests of Defendant 1. There was no fiduciary relationship between the Plaintiff and Defendant 1. Thus the principle laid down in--Morgan v. Morgan (1737) 20 ER 310 (C), cannot be applied to this case.

The Bombay High Court in--Vasudco v. Eknath 35 Bom 79 (D), based its judgment on the observations of the case of--''Morgan v. Morgan (C) but that view was dissented from in the later decisions of the Bombay High Court in-- Rachappa Totappa Vs. Madivalawa Rachappa, (E), and-- Fakirgowda Basangowda Patil Vs. Dyamawa Gowdappagowda Patil, (F). The Nagpur High Court also held a similar view in--Narainbhai Ichharam v. Narbada Prasad AIR 1941 Nag 357 (G) and-- AIR 1948 253 (Nagpur) H). The Patna High Court also has followed the same line of reasoning in-- Bibhuti Bhusan Modak and Another Vs. Girish Chandra Pal and Others, (I), in which it has been held that where the period of 12 years for making possession adverse expires after three years from the date on which the minor attains majority, the minor is not entitled to any extension of time under the combined effect of Sections 6 and 8, Limitation Act.

The learned advocate for the Appellant relied upon--Kachrulal v. Nurkhan 36 Deccan LR 163 (J). We have perused the ruling: fully. We do not find in this ruling any discussion of the provisions of Section 6, Limitation Act. It has only been stated u/s 6 a minor would be entitled to have a further period of limitation from the date of his attaining majority; but there is no reference to the provisions-of Section 8 which clearly and specifically curtails that period as stated above.

We are, therefore, inclined to follow the Privy Council view and the view expressed in Nagpur, Madras and Patna rulings. The result is Defendant 1''s right has been extinguished in the property by virtue of Section 28, Limitation Acts and so he cannot dispossess the Plaintiff. Plaintiff''s suit has, therefore, been rightly decreed by the lower appellate Court. This appeal is therefore dismissed with costs.