Madras High Court
Thulasi Ammal vs A.Sivakumar on 21 March, 2012
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.03.2012 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN A.S.No.112 of 2003 1.Thulasi Ammal 2.Maruthachalam 3.Shanmugasundaram .... Appellants Vs. 1.A.Sivakumar 2.Manonmani 3.P.Indhumathi 4.P.Poovendhan 5.Arunachala Gounder 6.Palaniappan 7.Palanichamy 8.Chellakutty 9.Kaliammal 10.Chinnammal 11.Maragatham 12.Thevathal .... Respondents Prayer : Appeal filed under Section 96 of the Code of Civil Procedure against the Judgment and decree dated 19.12.2002 and made in O.S.No.105 of 2001, on the file of the learned Additional District Judge, Fast Track Court, Coimbatore. For Appellants : Mr.S.Subbiah For Respondents : Mr.S.V.Jayaraman, Senior Counsel for Ms.Vanathi Srinivasan RR1 to 4 Ms.V.S.Usha Rani for RR7 to 12 R5 & R6 notice served ***** J U D G M E N T
Challenge is made in this appeal to the Judgment and Decree dated 19.12.2002 and made in O.S.No.105 of 2001, on the file of the learned Additional District Judge, Fast Track Court, Coimbatore.
2. The defendants 3 to 5 are the appellants herein, whereas the plaintiffs 1 to 4 are the respondents 1 to 4 herein and the defendants 1, 2 and 7 to 12 are the respondents 5 to 12 herein.
3. The facts, which are absolutely necessary for the disposal of the appeal are as under:
3.1. For easy reference, the respondents 1 to 4 may hereinafter be referred to as the plaintiffs and the respondents 5 and 6 be referred as defendants 1 and 2, whereas the appellants 1 to 3 and the remaining respondents viz.the respondents 7 to 12 be referred as the defendants 3 to 5 and 7 to 12.
3.2. The six defendant in the suit had passed away. The respondents 9 to 12 have therefore been impleaded as the defendants 9 to 12 in pursuant to the Order dated 24.06.2002 and made in I.A.No.138 of 2002 on the file of the learned Additional District Judge, Fast Track Court, Coimbatore.
3.4. One Mr.Ramana Gounder and Mr.Palani Gounder are brothers. The first and second defendants are the sons of Mr.Ramana Gounder. The third defendant is his daughter. The plaintiffs 1 and 2 are the son and daughter of the first defendant. The plaintiffs 3 and 4 are the sons of the second defendant. The defendants 4 and 5 are the sons of the third defendant. The defendants 6 to 8 are the lessees in respect of the portions of the properties described in Schedule-A and C. During the pendency of the suit, the sixth defendant had passed away and therefore the defendants 9 to 12 have been impleaded as the legal heirs of the deceased sixth defendant.
3.5. The suit properties are the joint family properties, in respect of which a partition was effected and registered on 11.02.1960 between the grandfathers and fathers of the plaintiffs. During the said partition, the properties described in Schedule-A and other properties were allotted to the defendants 1 and 2. The property described under Schedule-C and other properties were allotted to Mr.Ramana Gounder, who is the grandfather of the plaintiffs. The said Mr.Ramana Gounder had executed a registered Will dated 03.08.1970 and thereby he had bequeathed the properties described under Schedule-C in favour of the defendants 1 and 2. The said Mr.Ramana Gounder had passed away on 03.10.1981 and after his demise the Will came into effect and therefore the properties described in Schedule-C were also treated as joint family properties.
3.6. The defendants 7 and 8 have been in possession of Item No.1 of Schedule-A properties in the capacity of lessee, while the ninth defendant is in possession of Schedule-C properties as a lessee. The defendants 1 and 2 have alienated some of the properties allotted to them and besides this they have also transferred certain properties in favour of the third defendant, who is none other than their sister, under a registered sale deed dated 28.08.1989.
3.7. In this connection, the plaintiffs stated that it was actually a sham and nominal deed. But, infact, they had settled the B-schedule properties in favour of the third defendant for which no consideration was passed. Since the properties described under Schedule-B are also joint family properties, the settlement in respect of that property by a coparcener even by a manager of the family is void and no title was conveyed to the third defendant under the above said deed.
3.8. The transactions in favour of the third defendant in respect of Schedule-B properties by the defendants 1 and 2 be it settlement or sale, will not bind upon the plaintiffs and therefore the plaintiffs are entitled to claim their 2/3rd share. Item No.2 in Schedule-A was left out in the partition of the year 1960, for common enjoyment wherein a Well, Salai, Kalam and Channel are situated. There are two Salais on the western side of the Well. In view of the close relationship with the defendants 3 to 5 they were permitted to remain in occupation of the Salai. The plaintiffs are entitled to 2/3rd share in the said Salai.
3.9. The Schedule-C properties, which was bequeathed by Mr.Ramana Gounder (grandfather of the plaintiffs) in favour of his sons viz., the defendants 1 and 2 were treated as joint family properties of the defendants 1 and 2 in which the plaintiffs are entitled to claim 2/3rd share. The said Mr.Ramana Gounder had also given four acres of land in the above said Will dated 03.08.1970 in favour of his daughter third defendant.
3.10. The properties specified in Schedule-B are in possession of the third defendant and her sons viz., the defendants 4 and 5. Therefore, the plaintiffs have claimed that the suit properties be divided into six equal shares and they may be allotted with four of such shares after declaring that the sale deed dated 28.08.1989 is void and not binding upon them.
3.11. Besides this, they have also sought the relief of permanent injunction rendition of accounts in respect of Schedule-A and C properties from the defendants 1 and 2 and also sought the relief of future mesne profits from the defendants 3 to 5 in respect of Schedule-B properties.
3.12. The defendants 1 and 2 had not chosen to contest the suit as they remained exparte before the Trial Court.
3.13. The defendants 3 to 5 (appellants herein) have contended in their written statement that the plaintiffs are having no locus standi to challenge the sale in favour of the third defendant. The sale was effected for a valuable consideration and possession was also given to the third respondent by the defendants 1 and 2. The properties described in Schedule-B are not coparcenery in nature and as such the plaintiffs are having no right to claim any share much less 2/3rd share. The defendants 3 to 5 are residing and in possession of the property situated at Keechanthottam.
3.14. The properties, which were bequeathed in favour of the defendants 1 and 2 by their father Mr.Ramana Gounder, were never treated as joint family properties of the defendants 1 and 2. Virtually, the said Mr.Ramana Gounder, who is the father of the defendants 1 to 3 had bequeathed the Schedule-C properties in favour of the defendants 1 and 2 and another four acres of land in favour of the defendant 3 under a registered Will dated 03.08.1970. The plaintiffs are not at all in joint possession of any of the properties.
3.15. The defendants 6 to 8 have contended that from time immemorial the suit properties and other properties were/are in possession of these defendants and their predecessors. They are the statutory tenants in the first item of Schedule-A. They are cultivating an extent of 4.01 acres and the remaining 1.05 acres are with one Mr.Marudhachala Gounder. These defendants and the said Mr.Marudhachala Gounder are entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act and they could not be evicted from the said properties unless otherwise under due process of law.
3.16. Asfar as Schedule-C properties are concerned, it encompasses S.F.No.224, 225, 226, measuring 7.56, 5.76 and 3.07 acres respectively. Of this, 16.39 acres and an extent of 6.0 acres of land is under the cultivation of one Mr.Kandappa Gounder, son of Mr.Nanjappa Gounder and another 6.00 acres of land is under the cultivation of the sixth defendant and the remaining 4.39 acres of land is under the cultivation of defendants 7 and 8. These defendants are paying the rent to the owners and actually some of the defendants have issued rent receipts for the same. These defendants are not aware of any sale as alleged.
3.17. Even if the properties are allotted to the plaintiffs, the rights of the defendants are to be protected and the plaintiffs are not entitled to the actual possession of the suit properties. The sixth defendant was granted Kudiyiruppu Patta for an extent of 0.11 acres and thus he is the absolute and exclusive owner of the same.
3.18. In their additional written statement, the defendants 3 to 5 have contended that the plaintiffs do not understand the distinction between the sale and settlement and therefore they have come forward with a plea with different footings. The sale in favour of the third defendant by the defendants 1 and 2 was effected for a valuable consideration and possession was also handed over to the third defendant by the defendants 1 and 2. The suit is bad for partial partition. The properties which are situated at Chadivayal and Coimbatore South Taluk have not been included. The suit is bad for non-joinder of necessary parties. The plaintiffs are not at all in joint possession of any of the properties. The suit has been filed by the plaintiffs only at the behest of the defendants 1 and 2.
3.19. In the written statement filed by the defendants 9 and 10, which is adopted by the defendants 11 and 12, they have contended that from time immemorial the suit properties mentioned in Schedule-A & C and certain other properties were/are in possession of these defendants and some other parties as cultivating tenants.
4. Based on the pleadings of the parties to the suit, the Trial Court has framed as nearly as eight issues and three additional issues for the better adjudication of the suit. Not with standing the facts that the defendants 3 to 5 have contended that the suit is bad for partial partition as certain properties have been omitted to be included in the plaint schedule, the Trial Court has not chosen to frame any such issue in this regard.
5. In order to substantiate their respective cases, the parties to the suit were allowed to go for trial. The first plaintiff has been examined as P.W.1 and during the course of his examination Exs.A1 to A6 were marked. On the other hand, the fourth defendant Mr.Maruthachalam and another Mr.Maruthachalan, son of Mr.Ramana Gounder have been examined as D.W.1 and D.W.2 respectively. During the course of their examination 23 exhibits were marked on their behalf and besides this the Commissioner's report and rough sketch have also been marked as Court exhibits under C1 and C2 respectively.
6. On appreciation of the evidences both oral and documentary, the learned Trial Judge has found that:
a. The sale effected on 28.08.1989 in favour of the third defendant by the defendants 1 and 2 will not bind upon the shares of the plaintiffs, but it will bind in respect of the shares of the defendants 1 and 2, b. The plaintiffs are entitled to get 4/6th share in Item No.2 of Schedule-A property, c. Since the third defendant is also one of the coparcener, the plaintiffs are not entitled to get the relief of permanent injunction against the defendants 3 to 5, d. The defendants 1 and 2 being the fathers of the plaintiffs are liable to render accounts in respect of the income derived from the properties, which are in their possession, e. The defendants 3 to 5 are liable to pay the future mesne profits to the plaintiffs in respect of the schedule properties.
f. The plaintiffs are entitled to get 4/6th share in all the properties subject to the rights of the defendants 7 to 9 as they are lessees in respect of some of the properties as specified in Schedule-A and C, g. In sofar as Item No.2 of Schedule-A is concerned, the third defendant has become the owner based on the sale made in favour of her by the defendants 1 and 2 and therefore the plaintiffs are not entitled for the relief of permanent injunction against the defendants 3 to 5, h. The plaintiffs are entitled to the relief of declaration that the sale dated 28.08.1989 will not bind upon the plaintiffs in respect of their shares and it will bind upon the shares of defendants 1 and 2, and i. The plaintiffs shall take separate proceedings under Order 20 Rule 12 C.P.C., to ascertain the mesne profits.
With the above findings the learned Trial Judge has passed a preliminary decree on 19.12.2002.
7. Being aggrieved by the preliminary decree dated 19.12.2002 and made in O.S.No.105 of 2001, the defendants 3 to 5 in the suit have come forward with this appeal.
8. Mr.S.Subbiah, learned counsel appearing for the appellants/defendants 3 to 5 has mainly advanced his arguments on the following two grounds:
i. The suit in respect of the appellants is hopelessly barred by limitation in view of Article 58 and Section 7 of the Limitation Act, 1963, (hereinafter, in short, it may be referred to as 'Act') and ii. The sale deed dated 28.08.1989 (Exs.A3 and B6) executed by the defendants 1 and 2 in respect of 0.53 Cents in favour of the third defendant will definitely bind upon the plaintiffs 1 to 4.
Ground No.I:
9. It is apparent from the averments of the plaint that the plaintiffs have mainly attacked the sale deed (Exs.A3 and B6), which has been executed by the defendants 1 and 2 in favour of defendant 3. It is significant to note here that the defendants 1 and 2 are the brothers of defendant 3. As rightly argued by Mr.S.Subbiah, the learned counsel for the defendants 3 to 5, the suit ought to have been filed within three years from the date of execution of the sale deed ie.from the date of 28.08.1989. With this calculation he would submit that the suit ought to have been filed on or before 28.08.1992. But, it is obviously filed on 28.09.1995 i.e. after six years.
10. It is quite relevant to note here that in the first portion of the prayer, the plaintiffs while seeking the relief of partition in respect of their 4/6th share they have also sought the relief of declaration declaring that the ostensible sale deed dated 28.08.1989 is void and not binding on them. According to the plaintiffs, the sale deed dated 28.08.1989 (Exs.A3 and B6) is an ostensible deed. Since they have resisted the above said sale deed, as contemplated under Article 58 of the Act, the period of limitation to file the suit is three years and the starting point of the period of limitation is 'when the right to sue first accrues'. It is palpable from the evidence of P.W.1 that the plaintiffs are aware of the execution of the sale deed even on 28.08.1989 on which the sale deed was executed.
11. In this connection, P.W.1, in his cross-examination has admitted that in the year 1989 his father and his junior paternal uncle viz., second defendant had jointly executed the sale deed in favour of defendant 3 Thulasi Ammal. He has also conceded that at the time of execution of the sale, the plaintiffs had raised objection.
12. P.W.1 has further admitted during the course of his cross-examination that he was aware of the sale deed (Exs.A3 and B6) and that he was also present at the time of the sale and that he was aware of the sale on the same day when it was registered. Besides this, he would go one step further and admitted that he was called by his father and junior paternal uncle and after raising objection he went there.
13. It is also the candid admission of P.W.1 in his cross-examination that in respect of the sale in favour of the defendant 3, they had assured that they would execute the sale deed in favour of the third defendant, provided she vacates the residential premises, which is in her occupation. He has also admitted that since the third defendant had refused to vacate the house which is in her occupation and therefore they had filed the present suit immediately.
14. In this connection, Mr.S.Subbiah, learned counsel for the appellants has adverted to that these specific admission made by P.W.1 would make it clear that the plaintiffs 1 to 4 were aware of the sale deed even on the date of execution of Exs.A3 and B6 on 28.08.1989 and as such the suit with the prayer to grant the relief of partition after declaring the sale deed under Ex.B6 is void and clearly barred by limitation.
15. Suits relating to declarations are enumerated under Part-III of the Act. Part-III contains Articles 56, 57 and 58. Article 58 squarely applies to this suit. Suits relating to declare the forgery of an instrument issued or registered comes under Article 56. Suits to obtain a declaration that an alleged adoption is invalid, or never, in fact, took place comes under Article 57. Suits to obtain any other declaration comes under Article 58. Therefore, Article 58 has been construed to be a residuary article relating to declaratory suits and now it will govern all suits for declaration which are not covered by any other article.
16. As discussed in the fore going paragraphs, the plaintiffs, among other reliefs such as partition in respect of their 4/6th share, permanent injunction, rendition of accounts and future mesne profits, have also sought for the relief of declaration declaring the sale deed dated 28.08.1989 is void and not binding upon them.
17. According to the third column of Article 58, time will begin to run from the day 'when the right to sue first accrues'. As per the specific admission of P.W.1, in his cross-examination saying that the plaintiffs knew the execution of the sale deed even on 28.08.1989. Therefore, it is crystallised that the right to sue first accrues on 28.08.1989. As per the second column of Article 58, the period of limitation, within which the suit shall have to be filed is three years. But, it is crystal clear that the suit has been filed by the plaintiffs only on 28.09.1995 i.e.after more than six years instead of filing it on or before 28.08.1992.
18. As envisaged in State of Punjab vs. Gurdev Singh, reported in (1991) 4 SCC 1 : AIR 1991 SC 2219 and Kandaswamy vs. Muniswamy, reported in AIR 1932 Mad 589, the right to sue ordinarily signifies the right to seek relief in a Court of law and it accrues with the cause of action. The question when the right to sue exactly accrues depends on the facts and circumstances of each case. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.
19. It may be significant to note here that any suit, for which no period of limitation is provided elsewhere in the schedule of the Act, would come under the purview of Article 113. For filing such suit, the period of three years is given as limitation. In column No.III, it is stated that the period of limitation will run when the right to sue accrues. There is a clear distinction between Article 58 and 113.
20. Under Article 58 the period of three years is to be counted from the date 'when the right to sue first accrues'. Under Article 113, the period of limitation would be counted 'when the right to sue accrues'. The distinction is apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time, whereas in terms of Article 58, the period of limitation would be reckoned from the date on which the cause of action arose first. In the latter, the period of limitation would be differently computed depending on the last day when the cause of action arose. This proposition of law with regard to the distinction between Article 58 and Article 113 of the Act has been laid down in Union of India vs. West Coast Paper Mills Ltd., reported in (2004) 2 SCC 747 para 21 : JT 2004 (2) SC 183 : AIR 2004 SC 1596.
21. It may also be argued that in a suit for declaration that the deed of sale is null and void the cause of action does not start per se from the date of execution or registration of deed of sale. But, it actually starts from the date the plaintiffs obtained knowledge about the fact. It may also be argued that the right to sue first accrues from the date of knowledge of execution of the sale deed. For example, in Neelam Kumari and another vs. U.P. Financial Corporation, reported in AIR 2009 Uttarakhand 5, the suit was filed in the year 2007 to declare the said sale deed as null and void. In this regard, His Lordship the Hon'ble Mr.JUSTICE V.K.GUPTA, Chief Justice, has observed that the period of limitation does not start per se from date of execution or registration of sale deed. But, actually it starts from date when plaintiff obtains knowledge about that fact and therefore His Lordship has held that the suit filed in the year 2007 cannot be held to be time barred.
22. This ratio, which is applied in the above cited decision, cannot be made applicable to the present case on hand. Because, it is not the case of the plaintiffs that they had obtained knowledge about the execution and registration of the sale deed dated 28.08.1989 after some months or some years. It is the specific admission of P.W.1 that he knew the facts of the execution of the sale on the very date itself i.e.on 28.08.1989 and therefore there may not be any hesitation to hold that the rights of the plaintiffs to sue had first accrued on 28.08.1989. Therefore, the present suit in respect of the relief of declaration to declare the sale deed (Exs.A3 and B6) dated 28.08.1989 has definitely been barred under Article 58 of the Act.
23. Apart from this, Mr.S.Subbiah, learned counsel for the petitioner has also argued that the learned Trial Judge should have also seen inasmuch as the first plaintiff was in a position to give discharge for the plaintiffs 3 and 4, who were minors at that time viz., as on 28.08.1992, on or before which date the suit ought to have been filed and in view of Section 7 of the Act the suit is barred as against the plaintiffs 3 and 4 also.
24. In regard to the second plaintiff, the learned counsel has also adverted to that he had not claimed that he was not aware of the execution of the sale deed dated 28.08.1989 (Ex.B6) and he had also not given any evidence to show that he was not aware of the execution of the sale deed (Ex.B6) and hence the suit is clearly barred by limitation even in respect of the second plaintiff also as he was a major at the age of 20 years as on the date of filing of suit.
25. In support of his contention, the learned counsel has also placed reliance upon the following decisions:
i. Veni and 3 others vs. Perumal and 2 others, reported in 2002 (4) CTC 686, and ii. Subramanyam vs. Venkataraman and others, reported in 1984 LW 766.
26. In Veni's case, reported in 2002 (4) CTC 686, the learned Single Judge of this Court has held that the suit to set aside the sale of minor minors' property to be filed within three years from the date of minor attaining majority.
27. In Subramanyam's case, reported in 1984 LW 766, it is held that a suit to set aside an alienation filed more than three years after the attainment of majority by the elder brother who was the manager of the family would be barred by limitation under Section 7 of the Limitation Act, 1908, even though the suit was filed within three years of the attainment of majority of the younger brother.
28. It is also observed that it would be seen that after the first defendant became a major, he would be the Manager of the joint family and that he could give a valid discharge. He having not filed the suit within three years, the younger brother could not file the suit thereafter.
29. While writing the Judgment on behalf of the Division Bench of this Court, the Hon'ble Mr.JUSTICE V.RAMASWAMI has made reference to a Full Bench decision of this Court in Doraiswami Sirumadan vs. Nondisami Saluvan, reported in 25 MLJ 405 : 32 Madras 118. In that case, a suit by two brothers to set aside a sale effected by their mother as guardian during their minority was dismissed as barred by limitation. On the date of institution of the suit, the first plaintiff was 23 years old and the second plaintiff was 20 years old. Their case was that the suit was not barred by limitation as it was brought within three years of the second plaintiff attaining the age of majority. But, the Full Bench held that the claim being a joint claim and the suit having been brought more than three years after the attainment of the majority by the elder brother (who was the manager of the joint family competent to give discharge), the claim was barred by limitation even in respect of the share of the younger brother, who had not yet completed 21 years. Therefore, it was held that the suit was barred by limitation. In this connection, it may be more relevant to refer both the sections 6 and 7 of the Act.
30. Section 6 of the Act deals with legal disability. It reads as follows:
6. Legal disability. -
(1) 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.
(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified.
(3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section(3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections(1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.
31. Section 7 of the Act deals with disability of one of several persons. It reads as follows:
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.
32. The scope and application of sections 6 and 7 of the Act: Section 3 of the Act enunciates the general rule concerning the bar of limitation. Section 6 of the Act does not in terms extend the period of limitation prescribed for any legal action, but merely enable a person under disability at his choice to have limitation reckoned against him either from the accrual of cause of action or from the date of cessation of disability. This section refers to the period of limitation for the suit which the person under disability or some one through whom he claims, is entitled to institute and not to a period of limitation for a similar suit which some other person may have been entitled to institute. The section enable persons under disability to exercise their legal rights within a certain time, but its applicability is limited to suits and applications for execution of decrees and not to appeals or to the period of limitation fixed by C.P.C. This principle is laid down in Sharanappa vs. Shrishailappa, reported in AIR 1975 Karnataka 121 and Shilawati vs. R.B.Kishore, reported in AIR 1977 P & H 369.
33. Section 7 supplements Section 6 and they are not mutually exclusive. The principle of this section is that if there are some persons in existence who are adults and who could have safeguarded the common interests of themselves and others similarly situated, the failure of the persons, who are 'suit juris' to litigate the right, will start the cause of action not only against themselves, but also against persons unless similar circumstances. The main object of the legislature, in this section, is to limit the indulgence which is otherwise given to the minors, so that if there are several minors who can claim the benefits of Section 6, that concession does not extend to cover the whole period of time upto the youngest of the minors becoming major, but can only be availed by the eldest of them. This principle is laid down by both Bench of this Court in Doraiswami Situmadan vs. Nondisami Saluvan, reported in 25 MLJ 405 : 32 Madras 118.
34. Section 7 is an exception to the general principle enunciated by Section 6. Section 7 contemplates two cases:
(1) where there are several persons, jointly entitled to constitute a suit, but one of such persons is under disability, limitation will run against all provided a discharge can be given without concurrence of such person, (2) where no discharge can be given, time will not run against any of them
(a) until one of them becomes capable of giving such discharge without the concurrence of the others,
(b) or until the disability of all have ceased.
Section 7 is really an appendix to Section 6. In both sections the period of limitation is only extended, Section 7 is only an application of the principle in Section 6 to a joint right inhering in a group of persons, some or all of whom are under the disability.
35. With regard to the question of limitation, Mr.S.V.Jayaraman, learned senior counsel appearing for Mrs.Vanathi Srinivasan, learned counsel, who is on record for the plaintiffs 1 to 4 has advanced his arguments on the following three grounds:
i. The defendants 3 to 5 have never raised any plea with regard to the limitation as against the plaintiffs 1 to 4 before the Trial Court. Therefore, their competency to raise the plea of limitation before the Appellate Court for the first time has been ceased to exist.
ii. In sofar as the plaintiffs 1 to 3 are concerned the question of limitation does not arise and therefore Article 64 of the Act would alone applicable.
iii. As contemplated under Order VIII Rule 6 C.P.C., if there is no specific plea of denial in the written statement, it would be seemed to be an admission.
36. Countering the arguments advanced by Mr.S.V.Jayaraman, learned senior counsel for the plaintiffs 1 to 4, Mr.S.Subbiah, learned counsel appearing for the defendants 3 to 5 has canvassed that it is admitted fact that the question of limitation was not raised in the written statement and therefore no such issue was also framed by the Trial Court.
37. He has also maintained that not with standing the fact that the question of limitation was not raised during the trial, as contemplated under Section 3 of the Act, it could be raised even in the appeal stage. He has also submitted that since the question of limitation has basically been emerged from question of law it could be raised at any time even before the Appellate Court also. He would submit further that at the time of filing the suit by the plaintiffs 1 to 4, the Trial Court must have been more vigilant and cautious at the time of taking the suit on its file and since the suit itself is barred by limitation the plaint could have been rejected by the Trial Court at the threshold. Having been taken the suit on its file and allowed the plaintiffs and other parties including the defendants 3 to 5 to contest the suit the Trial Court has committed a serious and flagrant violation of law.
38. Section 3(1) of the Act is extracted as under:
'3. Bar of limitation.- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.'
39. This Section contemplates that either it may be suit or appeal or application, if it is made after the prescribed period shall be dismissed despite the fact that the question of limitation has not been set up or raised as a defence.
40. Section 3 of the Act is peremptory and it is the duty of the Court not to proceed with a suit, appeal or application if it is made beyond the prescribed period of limitation, irrespective of the fact whether the plea of limitation has been set up in defence or not. This proposition of law has been laid down in Maqbul Ahmad vs. Pratap Narain Singh, reported in ILR 57 All 42 : AIR 1935 PC 85 : 68 MLJ 665 (PC).
41. It may be quite relevant to refer the decision in Jacab vs. Natho, reported in AIR 1960 Punj 207 and Subbaramayya Chetti vs. Premier Bank of India Ltd., reported in AIR 1959 AP 96 to add more dimension in this proposition of law. In the above quoted decision it has been laid down that the question of limitation may be raised at any time in the course of the proceedings.
42. In Food Corporation of India vs. Babulal Agarwal, reported in (2004) 2 SCC 712 : AIR 2004 SC 2926, the Apex Court has held that A suit filed beyond limitation is liable to be dismissed even though limitation may not have been set up as a defence. This position, as provided under the law, cannot be disputed. But in all fairness, it is always desirable that if the defendant would like to raise such an issue, he had better raise it in his pleadings, so that the other party may also note the basis and the facts by reason which the suit is sought to be dismissed as barred by time. It is true that the Court may have to check at the threshold as to whether the suit is within limitation or not. There is always an office report on the limitation at the time of filing of the suit. But in cases, when the Court does not prima facie find it to be beyond time, at that stage, it would not be necessary to record any such finding on the point, much less a detailed one. Where the trial Court does not enter a finding that the suit is barred, the appellate Court is not bound to record any such finding unless the defendant raises such plea before appellate Court.
43. From the above context, the Apex Court has thus made it clear that the Office of the trial Court must be more vigilant and act as a sentinel quivive to check every suit, which is filed before it, is within the period of limitation as contemplated under the Act and shall make a report to that effect and place it before the Trial Judge when it is coming up for admission. Nowadays most of the trial Courts are not following this procedure.
44. In this connection, this Court wishes to throw more light on this proposition of law in the following manner:
A plea of limitation may be raised for the first time in first appeal. It may also be raised in second appeal. Plea of limitation, though not raised in the trial Court, can be raised in second appeal and it is the duty of Court to see and go into question of limitation irrespective of the fact that the same was not raised in the suit before the trial Court. There cannot a waiver against the provision of limitation. The question of estoppal also cannot be pleaded by the plaintiff in such case. This legal principle is laid down in Dhanji vs. Secretary of State for India, ILR 45 Bom 920 : AIR 1921 Bom 381 ; Maharaj Sai v. Kedar Nath, AIR 1933 Nag 130 ; Narasingha Dana Goswami vs. Prolhodman Tewari, ILR 48 Cal 455 : 22 Cal WN 994 : 47 IC 25 ; Siddalingiah (deceased by Lrs) vs. Kariappa (2009) AIHC 1202 (Karn) ; M/s.Craft Centre vs. Kioncherry Coir Factories, AIR 1991 Ker 83 : 1990 (2) KLT 837 : 1990 (2) KLJ 135 ; Nagarao Narayan Diwane vs. Narayan Avadutrao Dighe, 2000 (2) Mh LJ 273 : 2000 (4) Bom CR 165.
45. Having given careful consideration to the above quoted decision and the submissions made by Mr.S.Subbia and Mr.S.V.Jayaraman, learned counsels for the parties to this appeal, this Court is of considered view that the defendants 3 to 5 are prevented from raising the question of limitation even at the appeal stage.
Ground No.II:
46. As discussed in the opening paragraph of this Judgment, the plaintiffs 1 to 4 never disputed the relationship between them and the defendants 1 to 5. It is admitted fact that a partition deed under Ex.A1 was effected on 11.02.1960 between the family members in respect of their joint family properties. It is also admitted fact that the properties described in Schedule-A and other properties were allotted to the defendants 1 and 2. The properties described under Schedule-C was allotted to Ramana Gounder, who is the father of defendants 1 to 3 and grandfather of the plaintiffs 1 to 4 and maternal grandfather of defendants 4 and 5.
47. In respect of the properties specified under Schedule-C of Ex.A1, Ramana Gounder had executed a Will under Ex.A6 dated 03.08.1970. This Will is a registered Will under which he had bequeathed four acres of land, which he had got under Schedule-C of Ex.B1 in favour of his daughter Thulasi Ammal, defendant No.3 and the remaining portion in favour of his sons viz., defendants 1 and 2 in the following manner:
i. 2 Acres 46 = Cents comprised in G.S.No.225 (total extent of G.S.No.225 is 5 Acres 76 Cents of which half portion viz.2 Acres 88 Cents belonged to Ramana Gounder, out of which 2 Acres 46 = Cents), and ii. 1 Acre 53 = Cents out of 3 Acres 7 Cents in G.S.No.226 (total extent 4 Acres), The remaining properties in Schedule-C were bequeathed to defendants 1 and 2.
48. The plaintiffs 1 to 4 did not question the land measuring 4 Acres, which has been given to defendant 3 by her father Ramana Gounder under the registered Will, Ex.A6, dated 03.08.1970. It is apparent that under Ex.B6(A3) the defendants 1 and 2 have alienated 53 Cents in favour of their sister defendant No.3 (0.26 Cents comprised in new Survey No.351/A/1A and 0.27 Cents in new Survey No.352/A/1A). The sale in respect of this 53 Cents under Ex.B6 (A3) in favour of defendant 3 alone has been attacked by the plaintiffs 1 to 4. This property measuring 53 Cents has been described under Schedule-B of the plaint.
49. In this connection, Mr.S.V.Jayaraman, learned counsel appearing for the plaintiffs 1 to 4 has contended that no consideration was passed on under Ex.B6 and therefore this sale deed could not be considered as a valid one and on account of this reason the plaintiffs have employed the word 'Ostensible Sale Deed' in the plaint. He has also argued that since the property being the joint family property, a settlement or sale in respect of this property by a co-parcener or even by a manager of the family is void and it could not be presumed that valid title was conveyed to the third defendant.
50. The learned counsel would continue further that since the sale deed under Ex.B6 is a void one, it would not bind upon the plaintiffs as the sale was not effected neither for the necessity of the family nor did it bring any benefit to the family. He has also added that there was no pressing necessity on the part of the defendants 1 and 2 to bring the said transaction.
51. The learned counsel has also continued that the transaction under Ex.B6 in favour of defendant 3 cannot bind other co-parcener and therefore the plaintiffs are entitled to claim their 2/3rd share over the Schedule-B property.
52. It is pertinent to note here that as discussed in the earlier paragraphs the defendants 1 and 2 being the father of the plaintiffs 1 to 4 never chosen to contest the suit. Since they voluntarily remained absent, they were set exparte by the trial Court.
53. During the course of his arguments, Mr.S.Subbiah, learned counsel has drawn the attention of this Court to the evidence given by P.W.1. In his cross-examination, P.W.1 has admitted that in the year 1989 in sofar as their family was concerned a family debt was on the increasing scale and therefore defendants 1 and 2 took responsibility to liquidate the family debts. He has also stated that on 27.01.1989 a sale was effected in favour of Subbulakshmi and on the same date another sale was effected in favour of one Vijayalakshmi.
54. P.W.1 has also admitted that this sale was a bonafide one and apart from this on 27.01.1989 a property was also sold to one Vijayalakshmi. Besides this on 22.06.1995 a property situated at Vellakinaru was sold in favour of one Ashok Kumar. Ex.B3 is the certified registration copy of the above said sale deed. In respect of Ex.B3, he has stated in his cross-examination that his sisters Sumathi and Malathi had also singed in the sale deed under Ex.B3 as they are having right over the properties. He would go one step further and admitted that his own sisters are also having rights over the suit properties like that of his rights and that rights were acquired based on the family partition effected in the year 1960.
55. With regard to the specific admission made by P.W.1 in his cross-examination, Mr.S.Subbiah, learned counsel for the defendants 3 to 5 has raised a question that when the other sales dated 27.01.1989 and 22.06.1989 have not been resisted by the plaintiffs, why they have precisely challenged the sale under Ex.B6 in favour of defendant 3. This question remained un-answered on the part of the plaintiffs.
56. The contention made on the part of the plaintiffs that the property measuring 53 Cents specified in Schedule-B was only gifted to defendant No.3 by the defendants 1 and 2 has not been substantiated with clinching evidence. Ex.B6 is the original registered sale deed dated 28.08.1989 in respect of Schedule-B property. In order to repudiate Ex.B6, no other legal document has been produced by the plaintiffs. In the absence of adequate evidence on the part of the plaintiffs and since the defendants 3 to 5 have produced Ex.B6 original sale deed to substantiate their case that the defendant 3 had purchased the property for valuable consideration, the contention of the plaintiffs resisting Ex.B6 has become pale into insignificance.
57. It has been specifically admitted by P.W.1 that their family was heavily indebted in the year 1989 and that defendants 1 and 2 took responsibility to liquidate the family debts and therefore certain properties were sold on 27.01.1989 and 22.06.1995 in favour of Subbulakshmi, J.Vijayalakshmi and Ashok Kumar. As rightly addressed by Mr.S.Subbiah, learned counsel for the defendants 3 to 5, the defendants 1 and 2 being the kartha of the family have jointly sold those properties on 27.01.1989 and 22.06.1995.
58. From the admission made by P.W.1, it is apparent that the family debts were not illegally acquired. Mr.S.Subbiah, learned counsel for the plaintiffs has also submitted that the plaintiffs would not say that the sale deed under Ex.B6 executed by the defendants 1 and 2 would not bind upon them. He would submit further that even according to P.W.1 some properties were earlier sold in favour of one Subbulakshmi, Vijayalakshmi and Ashok Kumar on 27.01.1989 and 22.06.1995 respectively. But, these properties have not been included in the plaint schedule for being placed for petition.
59. Barring those properties, the properties specified under Schedule-B alone has been challenged in the suit which shows that the suit is bad for partial partition. The properties, which were sold for discharging family debts have not been included in the suit and the conduct of the plaintiffs would lead to presume that the plaintiffs have purposefully and wilfully omitted to include those properties in the plaint schedule. The candid admission made by P.W.1, in his cross-examination also would lead the Court to presume that the suit is bad for non-joinder of necessary parties.
60. It may be quite relevant to reiterate the argument advanced by Mr.S.Subbiah, learned counsel for the defendants 3 to 5 that the kartha of the family is competent and entitled to alienate the joint family properties for the benefit of the family.
61. In order to substantiate his contention, the learned counsel has also placed reliance upon the decision in Minor S.Vijayakumar vs. Subbarayan, reported in (2002) 3 MLJ 43. In this case in paragraph No.18, the Division Bench of this Court has held that:
18.It is settled law that minors' impugning alienations by joint family Manager/father should allege and prove that they were for immoral or illegal purposes. The onus is on them to show that the recitals in the deeds are false and that the vendor did not receive consideration or that the consideration was for immoral or illegal purposes.
62. On coming to the instant case on hand, P.W.1 has specifically admitted in his cross-examination that there were family debts during the year 1989. He has miserably failed to establish that those debts and the subsequent alienation were brought about by defendants 1 and 2 for illegal and immoral purposes. It is significant to note here that P.W.1 has specifically admitted that there were antecedent debts and that there was compelling necessity for the defendants 1 and 2 to alienate some of the properties in favour of Subbulakshmi, Vijayalakshmi and Ashok Kumar.
63. On careful appreciation of the testimony of P.W.1 as well as D.W.1, this Court finds that the alienation under Ex.B6 in favour of defendant 3 was also made for discharging antecedent debts and also for necessity and benefit of the family.
64. In an another decision in S.Badrinarayanan vs. M.Purushothaman and others, reported in 2010 (1) TLT 216, the learned Single Judge of this Court has held that the kartha of the joint family can alienate the joint family properties for the family necessity even without consulting any adult member of the family.
65. As discussed in paragraph No.3.5, Schedule-C of Ex.A1 was allotted to Ramana Gounder. Ramana Gounder inturn had executed a Will under Ex.A6 and therefore he had bequeathed 4 Acres in favour of his daughter defendant 3 and the remaining portion in favour of his sons i.e., the defendants 1 and 2.
66. On a perusal of Ex.A6, Ramana Gounder has stated that since he got the property from the family partition, it is his exclusive property and no one is having any right or interest over that property and therefore he is fully competent to dispose of these properties. From the averments of the Will it could be visualized and understood that the properties allotted to the share of Ramana Gounder could not be charatarized as the joint family properties consisting of Ramana Gounder and his two sons viz.defendants 1 and 2.
67. Excepting 4 Acres, the remaining portion of Schedule-C was passed on the defendants 1 and 2 under Ex.A6. Therefore, it cannot be heard to say that it is the joint family properties. As rightly addressed by the learned counsel for the defendants 3 to 5, the properties received by the defendants 1 and 2 under Ex.A6 are their exclusive properties and they can dispose of the same in accordance with their whims and fancies and therefore they can alienate the property either in favour of defendant No.3 or in favour of somebody else for which the plaintiffs cannot maintain any question. They can also not claim any share in that property in any manner either as co-parcenery properties or otherwise.
68. On meticulous analysis of the evidences both oral and documentary available on record, this Court finds that the sale under Ex.B6 is not tainted with any illegality or any immorality and therefore the contention of the plaintiffs that the sale would not bind upon them is not discernible. It is also important to note here that the defendants 1 and 2 have not entered into box to say that they have not executed the sale deed under Ex.A6 in favour of sister. When the sale deed under Ex.B6 was executed by the defendants 1 and 2 in favour of their sister the third defendant, it should have been held by the trial Court that the sale deed under Ex.B6 would be binding upon the plaintiffs 1 to 4.
69. Keeping in view of the above findings, this Court is of considered view that the appeal is deserved to be allowed.
70. In the result, the appeal is allowed and the decree and Judgment dated 19.12.2002 and made in O.S.No.105 of 2001, on the file of the learned Additional District Judge, Fast Track Court, Coimbatore, in respect of the defendants 3 to 5 are set aside and the suit in O.S.No.105 of 2001 in respect of the defendants 3 to 5 is dismissed. The Judgment and Decree in respect of the remaining defendants remain undisturbed. Consequently, connected miscellaneous petitions are closed. Considering the relationship between the parties to the appeal, there is no order as to costs.
21.03.2012
Index : Yes/No
Internet : Yes/No
krk
To
1.The learned Additional District Judge,
Fast Track Court, Coimbatore
T.MATHIVANAN, J.
krk
Pre-Delivery Order
in
A.S.No.112 of 2003
21.03.2012