Naurata and Others vs Raunqi and Others

M.S. Liberhan, J.—The Plaintiffs Raunqi and Jit sons of Ram Chand, Bachni and Jito daughters of Ram Chand, filed suit for possession contending that they were minors and their mother Parsani sold the land in dispute to Naurata and Jewana Defendants without prior permission of the Guardian Court as envisaged by Section 8 of the Hindu Minority and Guardianship Act, 1956. Smt. Parsani was said to be the lady of feeble health and thus incapable of entering into the contract of sale, so sale was alleged to be non-est. It was said to be without consideration and free will. The Plaintiffs claimed to have come to know of the sale about a year prior to the date of filing of the suit which was admittedly filed on 17.9.1974, with respect to the sale deed having been executed on 6th June, 1973 in favour of Defendants Naurata and Jewana, who were already mortgagees in possession of the land in dispute.

The Defendant No 1 Naurata contested the said suit and. inter alia, alleged that the sale was for consideration, Smt Parsani was competent to sell the land in dispute the sale was for legal necessity as they were not capable of redeeming the land and it was for the benefit of the minors. The suit was alleged to be collusive between the Plaintiffs and their mother. The following issues were framed:

(1) Whether the sale in suit is valid without the permission of the Guardian Court ?

(2) Whether the sale in suit was made in good faith and for the benefit of the minors ? If so its effect ?

(3) Whether the suit is collusive and had been filed at the instance of Defendant No. 3 and Jota Singh ? If so, its effect ?

(4) Whether the suit is within time ?

(5) Whether the relief sought in the plaint is not properly assessed for purpose of Court fee and jurisdiction ?

(6) Whether the suit is not maintainable for the reasons given in para 4 of the Additional pleas in the written statement ?

(6-A) Whether the property sold was joint family property, If so its effect ?

(7) Relief

The trial Court found, that the sale can be avoided within three years of attaining majority if the Plaintiffs are proved to be minors on the date of sale. The mortgage was redeemed but there is no evidence that the redemption benefited the minors. There was no evidence to prove the suit to be collusive. The suit was properly valued for the purpose of court fee and juridiction. Further the suit held to be barred by time qua the share of Raunqi, Jit, Bachni and Parsini widow in as much as the same having been filed beyond three years from the date of sale as well as three years from the date of attaining the majority by the said Plaintiffs However, qua the share of Jito, the suit was held to be within limitation Since the sale was effected without the permission of the Guardian Court it was held that share of Jito i.e 1/5 shall not be effected by the sale and qua the remaining land the sale was to be valid.

Both the parties preferred appeals. The lower appellate Court came to the conclusion that qua the share of Jito, Bachni and Jit the sale was void since the same was effected without the permission of the Guardian Court and the suit was within 12 years from the date of sale as the same was governed by Article 65 and not by Article 60 of the Limitation Act As regards Raunqi it was found that he had failed to prove that he was minor at the time of sale and Mst. Parsani the original vendee was found to be major. The suit qua latters'' shares was found to be not maintainable Thus the suit to the extent of 3/5th share was decreed and the rest of the suit was dismissed.

The Appellants have challenged the said judgment and decree in this Court in second appeal

The sole question for consideration in this appeal is whether the suit in the present case shall be governed by Article 60 or Article 65 of the Limitation Act. The learned Counsel for the Appellants has relied upon Surta Singh v. Pritam Singh (1983) 85 P. L. R. 121 a Full Bench judgment of this Court wherein it has been held that in view of the facts and circumstances stated above it is Article 60 which shall govern the right to sue which provides the limitation of three years to challenge the sale after attaining Majority. Article 60 of the Limitation Act is as under:-

Description of Suit

Period of limitation

Time period

from begins

which to run

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

1

2

3

attained majority;

majority

(b)

by the ward''s legal representative -

(i)

when the ward dies within three years from the date of attaining majority;

Three year

When the ward attains majority.

(ii)

when the ward dies before attaining majority.

-do-

When the ward dies."

In my view the judgment of the Full Bench as well as Article 60 make it obvious that in the fact and circumstances of the case in hand as stated above, the suit would be governed by Article 60 of the Limitation Act for which the period of limitation is three years after attaining the majority to challenge the sale effected by a guardian without the permission of the Guardian Court as not being binding on the minors.

It is not being disputed by the Respondents that the dates of birth of Jit is 21.9.1950. Bachni''s is 19.3.1947, that of Jito is 6.5.1974 and that of Raunqi is 2.3.1944. Admittedly, they all except Jito had attained majority much before 1971 and the was filed in 1974. It is only Jito whose suit is within limitation which fact is not challenged by the learned Counsel for the Appellants.

Application No 4474 of 1987 has been filed to seek permission to file cross objections. Counsel for the Appellants cotters that the cross-objections were filed as far back as on 25th of November, 1978 which were returned on 27.11.1978 to remove some clerical defects and to explain how the value had been fixed for the purposes of Court fee and jurisdiction as well as power of attorney was not filed with the cross-objections. The same were refilled without removing the objections. The cross objections were again returned on 18.12.1978 which were refiled on 23.4.1979, without removing objection Hence these were once again returned on ''4.4.1979 and now refiled on 8.12.1987. It is averred that the appeal came up for hearing on the list on 23rd of September, 1987. Taking the limitation of the cross-objections from any date as terminus quo the cross-objections are barred by time. I find force in his submission. In the absence of any explanation much less satisfactory, no permission can be granted at this belated stage.

Application No 4475 of 1978 for permission to lead additional evidence by placing on record the birth entry of Raunqi showing him to have born on 2.3.1944 also pales into insignificance in view of my above observations to the effect that limitation for filing the suit is three years.

Lastly Application No. 4476 of 1987 was pressed into service to contend that since Naurata Appellant has died on 3.8.1980 and legal representatives of Jewana Smt. Ishro died on 2.3.1986 the appeal had abated. However, the counsel for the Appellants contended that the sola heir of Naurata and Jewana was appelant No 2, who is already on record. Further mutation of the inheritance had been sanctioned in his favour as far back as on 2.8.1981. The counsel for the Respondents wanted to produce on record some unregistered will in favour of some lady to show that she was the heir. I need not go into this controversy regarding the legal heir inasmuch as the estate of the deceased has been sufficiently represented on the record. Further in view of Mahabir Prasad Vs. Jage Ram and Others, , even if one of the legal representatives is on the record the appeal does not abate.

In view of my above observations, judgment and decree of the lower appellate Court is set aside and that of the trial Court is restored Suit to the extent of 1/5th share of Smt Jito is decreed and qua the share of other Plaintiffs the suit stands dismissed with no order as to costs. The appeal is accepted to the extent indicated above.