Patna High Court
Kishori Chandra And Anr. vs Suraj Narain Singh And Ors. on 21 February, 1955
Equivalent citations: AIR1955PAT386, 1955(3)BLJR239, AIR 1955 PATNA 386
JUDGMENT Jamuar, J.
1. This appeal is by the plaintiffs, and has been brought from a judgment and decree of the Additional Subordinate Judge of Hazaribagh, dated 20-12-1946, by which he dismissed their suit.
2. There were three brothers, Silwant Sahay, Balwant Sahay and Bhagwat Sahay. The last brother died' leaving a widow named Deoki Kuer and a son named Rup Chander. The plaintiffs are two in number, Kishori Chander and Umesh Chander, and they are the sons of Silwant Sahay. Silwant Sahay had brought a partition suit in 19Z8, and it has been numbered as partition suit No. 273 of 1918, in which his brother Balwant Sahay and his nephew Rup Chandar were the defendants. A preliminary decree was passed in the suit, and a first appeal was brought to the High Court. The appeal ended in a compromise under which the shares of Silwant Sahay and Balwant Sahay were defined as being half and half in respect of the joint family properties but property No. 2 as described in the plaint of the suit out of which this appeal has arisen was given to Deoki Kuer as maintenance for her life. Her son, Rup Chander, had died during the pendency of the appeal. This agreement arrived at between the parties was registered on 14-6-1920. As a result of this agreement, the partition suit, which was then pending in the trial Court for preparation of a final decree, was dismissed for non-prosecution on 17-3-1922.
3. On 17-4-1925, the two brothers, Silwant Sahay and Balwant Sahay, executed a mortgage bond in favour of the original defendant, Bishun Lal Singh, for a sum of Rs. 4,000/-, and the property mortgaged Was property No. 1 of the plaint of the suit. In 1931, the mortgagee brought a suit on the basis of the bond, and obtained an 'ex parte' decree, and, in execution of that decree, property No. 1 was sold and purchased by him on 8-8-1934. As the mortgage debt was not satisfied out of the proceeds of that sale, action was taken under Order 34, Rule 6, Civil P. C. with the result that, on 26-10-1938, property No. 2 of the plaint was also sold, and the mortgagee took delivery of possession of this property as well,
4. The suit out of which this appeal has arisen was instituted on 14-12-1944, and the reliefs sought by the plaintiffs were for a declaration that the mortgage bond dated 17-4-1925, executed in favour of Bishun Lal Singh was without legal necessity and without consideration, and that the plaintiffs had not been benefited by that loan, if any, with the result that neither the alienation of property No. 1 by that bond nor its sale in question of the mortgage decree was binding upon them. The further relief sought by the plaintiffs was that, as the sale of property No. 1 or of No. 2 as a result of the mortgage decree was not binding upon them, their right, title and interest in the same to the extent of 10 annas 8 pies be declared as being unaffected by the sale, and, after dispossessing Bishun Lal Singh, possession of the properties to this extent may be- delivered to them. An alternative relief was also sought, namely, that, in case the mortgage be held, to be binding upon the plaintiffs, they may be ordered to be put in possession "on such terms as to redemption or otherwise" as the Court thinks fit and proper.
5. The mortgage bond in question was executed for payment of dues to the extent of Rs. 1,369/8/- borrowed on three previous mortgage bonds executed by Balwant Sahay alone, and this amount was set off from the consideration money for that mortgage bond. The balance of the consideration money, namely, Rs. 2,630/8/-, had been paid in cash before the Sub-Registrar. It was also stated in the bond that money was required for the payment of a decree obtained by one Srilal Seth amounting to about Rs. 1,900/- as also for purchase of cattle and for meeting other expenses.
6. The plaintiffs' case was based upon the footing that, by reason of the partition suit of 1918, their father, Silwant Sahay, and their uncle, Balwant Sahay, ought to be held to have separated so that Silwant Sahay was not bound to pay the debt of Balwant Sahay upon the three previous mortgage bonds executed by the latter, and their further case was that they had in no way been benefited by the loan alleged to have been taken upon the mortgage bond in suit.
7. The defence to the suit was that Silwant Sahay and Balwant Sahay had, in fact, never separated and remained all along joint, or, at least, they so behaved by their act and conduct, and, even if it be held that they had separated, they had later reunited and were Joint at the time of the execution of the mortgage bond in suit. One important defence was that the suit was barred by limitation.
8. The learned Subordinate Judge found that Silwant Sahay and Balwant Sahay had, in fact, separated in 1918 but that they had clearly reunited later, and further, that, the bond being for consideration and for legal necessity, the plaintiffs are bound by the mortgage decree obtained by Bishun Lal Singh and by the subsequent sale of the properties in execution of that decree. The Subordinate Judge also held that the plaintiffs, though not parties in the mortgage action, were represented by their father. He also held in favour of the defendant that the suit was barred by limitation.
9. Mr. Umesh Chandra Sharma, who appeared for the appellants, (the plaintiffs), stated that he would confine his argument to the question whether the suit is barred by limitation, as, if the decision of the trial Court be upheld that the suit is barred, no further question arises in the appeal. He did not wish to press the other issues raised in the trial Court.
10. Therefore, the only question which need be considered is regarding limitation. It was alleged in para 4 of the plaint that plaintiff No. 1 was born on 14-12-1923, and attained his majority on 15-12-1941, so that he was a minor at the date of the mortgage action brought by Bishun Lal Singh, while plaintiff No. 2 was still a minor. Neither of them was a party to that action, so that they could not appear and contest the suit, and it has been further alleged in the next paragraph that their father negligently failed to contest the suit. In para 13 of the plaint, however, it has been stated that plaintiff No. 1 attained majority on 22-12-1941. The date of attainment of majority as given in para 4 of the plaint, as I have just said, was 15-12-1941. The original date typed in this paragraph also was 22-12-1941; but the date "22nd" has been corrected in ink to "15th". No corresponding correction was made in para 13. Mr. Umesh Chandra Sharma raised the argument that plaintiff No. 1, having been bora on 14-12-1923, would attain majority on 14-12-1941, and the suit, having been instituted on 14-12-1944, was not barred by limitation. His contention was that plaintiff 1 had to bring his suit within three years of the date of his attaining majority, so that the suit was instituted on the last day of limitation. According to his argument, therefore, the suit is in time.
11. The argument in the Court below also seems to have proceeded upon the footing that plaintiff 1 was entitled to bring the suit within three years of his attaining majority, so that, if he was Born on 14-12-1923, the plaint having been filed on 14-12-1944, the suit was in time. On behalf of the defendant also it seems to have been suggested that plaintiff 1 was entitled in law to bring his suit within three years of his attaining majority; but the argument was that the plaintiff had given a wrong date of his birth, since he was, born much earlier than 1923, and the 'suit had been brought more than three years after his attaining majority. The learned Subordinate Judge commented that plaintiff 1 had not produced bis horoscope in support of his date of birth, and had not examined his mother, who was alive, to testify the date of his birth, nor had he produced any medical evidence in support of his age. The learned Subordinate Judge, however, said about this plaintiff that he seemed to have minimised his age, and further said: "In my opinion, the plaintiff. 1 is aged 26 years." This was in 1946, so that, according to the Subordinate Judge, the plaintiff's birth was in 1920. Accordingly, the Subordinate Judge held that "the present suit is barred by limitation as plaintiff 1 did not file the present suit within three years of his attaining majority."
12. In the course of the argument, we enquired from Mr. Sharma as to what provision of the Limitation Act was being considered in the Court below in this connection, and he suggested that, probably, Article 44, Indian Limitation Act was being applied. Article 44, Limitation Act may be reproduced:
By a ward who has Three When the ward attained majority, to years attains majority. set aside a transfer of property by his guardian.
Quite clearly, this Article has no application to the present suit. The present suit was not to set aside a transfer of property made by a guardian. The suit was for a declaration that the mortgage bond dated 17-4-1925, was without legal necessity and without consideration and, in any case, the plaintiffs had not been benefited by the loan, and further that neither the alienation made by that bond nor the sale held in execution of the mortgage decree was binding upon them. Article 44 can have no application where the alienation has been made by a person not as guardian of the plaintiff but in his capacity as manager of a joint Hindu family. It was then conceded that Article 44 had no application to the facts of the present case.
13. Mr. Sharma then contended that Article 144 would govern the present case. This Article contemplates a suit for possession of immovable property or any interest therein "not hereby otherwise specially provided for." The period is twelve years from the time "when the possession of the defendant becomes adverse to the plaintiff." The case before us is not one where the possession of the defendant adverse to the plaintiff. Article 144 is a residuary Article and it cannot be resorted to, if a specific Article is applicable to a suit.
14. The period of limitation governing suits to set aside certain sales is contained in Article 12, Limitation Act, and it includes a suit to set aside a sale held "in execution of a decree of a Civil Court." The period of limitation is one year, and limitation begins "when the sale is confirmed, or would otherwise have become final and conclusive had no such suit been brought." Section 6(1), Limitation Act provides that where a person entitled to institute a suit is, at the time from which the period of limitation is to be reckoned, a minor, e may institute the suit within the same period after the disability has ceased, "as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule"; and Section 8 of the Act provides that nothing in Section 6 "shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted ......."
Section 8 has to be read with each of the Articles of Schedule 1. When the period prescribed is three years or more, and expires within three years from the date of attainment of majority, the intention is that the minor should have the full term of three years. But when the prescribed period is less than three years and the minor gets that period (according to Section 6) from the date of the majority, the prescribed period is not to be enlarged to three years (See -- 'Subramania v. Siva Subramania', 17 Mad 316 at p. 323 (A).) Accordingly, if Article 12 applies, by reason of Section 8, the period will be one year after the attainment of majority, and this period cannot be enlarged to three years. Plaintiff 1, even according to the plaint, attained majority on 14-12-1941. The period of one year expired on 14-12-1942; but the suit was brought on 14-12-1944.
15. It was contended that Article 12 has no application to sales which are 'ab initio' void. This is true; for, it is then unnecessary for a plaintiff to seek to have it set aside, as he is not bound by it. In such a case, there is nothing to set aside, and Article 12 deals with cases where a plaintiff has to get the sales mentioned in that Article "set aside." In the present case before us, in my opinion, the sale held in execution of the mortgage decree was not void. The mortgagee, Bishun Lal Singh, had obtained his mortgage decree, and had brought the property to sale in execution of that decree. The sale was a good sale. The plaintiffs cannot call it a void sale in the sense that it is not necessary to have it set aside, as they are not bound by it. The plaintiffs seek a declaration of their right, title and interest to the extent of 10 annas 8 pies as being unaffected by the sale. They would, therefore, accept the sale in respect of the remainder as a good sale. In no view of the case, can it be found that the plaintiffs are treating the sale as being 'ab initio' void. And I construe the plaint to mean that before any relief can be given to the plaintiffs, the sale must be set aside.
16. Mr. Sharma for the appellants' relied upon the case of -- 'Motilal v. Karrabuldin', 25 Cal 179 (PC) (B). But that was a case where some property had been sold in 1882 in execution of a decree but then it was again sold in execution of another decree in 1884 and purchased by one other person. The first purchaser thereupon brought a suit for a declaration that the second sale was invalid. Quite clearly, it was so, as, after the first sale, there was no interest left in the property which could be sold to another purchaser. It was held that there was no occasion for setting aside the second sale which did not at alt affect the right of the first purchaser, and that, therefore, "Article 12 had no application. On the other hand, it is well settled that a suit brought by a son after attaining majority for setting aside the sale of his share sold at an auction sale held in execution of a decree against the father is governed by Article 12. When, therefore, the auction-purchaser buys the share of the son in execution of the decree against the father, the son cannot claim his share without having the sale set aside. Of course, if the alienation is void, the son need not sue to set aside the sale. But, in the circumstance just stated, the sale is not void but is, only voidable at the suit of the son, and so long as it is not avoided, the sale would be a good sale. In these circumstances, the son would be bound to have the sale set aside if he wants to recover his share of the family property, Article 12 commences with the words:
"To set aside any of the following sales-
(a) Sale in execution of a decree of a Civil Court."
On these opening words of the Article, if a sale held in execution of a decree by a Civil Court is to be set aside, a suit must be brought within one year of its confirmation or its becoming final and conclusive. In the case of -- 'Malkarjan v. Narhari', 27 Ind App 216 (PC) (C), their Lordships of the Judicial Committee made the following observations:
"The Limitation Act protects bona fide purchasers at judicial sales by providing a short limit of time within which suits may be brought to set them aside. If the protection is to be confined to suits which seek no other relief than a declaration that the sale ought to be set aside and is to vanish directly some other relief consequential on the annulment is sought, the protection is exceedingly small .... What is the justification for refusing to construe Article 12(a) according to its obvious meaning whenever a suitor goes on to pray for that relief which is the object, perhaps the only object, of setting aside the sale? Their Lordships hold, that both the letter and the spirit of the Limitation Act require that this suit, when looked on as a suit to set aside the sale should fall within the prohibition of the article."
17. Moreover, as will have been noticed in the earlier part of the judgment, an alternative relief claimed in the plaint was the right to redeem. In this connection, the case of -- 'Bhola Jha v. Kali Prasad', AIR 1917 Pat 693 (D) may be referred to. This was a case where one Raghunath Prasad, along with his two sons and one other person, who was defendant 2, formed a joint Hindu family governed by the Mitakshara law. Raghunath Prasad and defendant 2 had executed, at various times, four mortgage bonds mortgaging the family property. Then the mortgagees sued and obtained decrees on their bonds more than twelve years before the institution of the suits, and they themselves purchased the property and obtained possession of it. The sons of Raghunath Prasad were not made parties to the mortgage suits. These sons thereafter brought a suit, in 1911, to recover possession of the family property by setting aside the four mortgage bonds executed by their father, and, in the alternative, they prayed that they should be allowed to redeem the four mortgages.
The court of first instance had dismissed the suits, and the lower appellate Court reversed that decision. The defendants appealed to the High Court. It was argued on behalf of the defendant appellants that there could be no redemption until the sales made in the previous suits had been set aside, and that the period of limitation for setting aside such sales was one year. On behalf of the respondents, it was contended that the sales must be regarded as nullities, and that the decrees for redemption could be made without setting them aside. Relying upon the case of -- 'Ram Taran Goswami v. Rameshwar Malla', 11 Cal WN 1078 (E), it was held that, in order that a suit to redeem he maintainable, the first step necessary for redemption is a declaration that the sale should be set aside, and that the limitation for a suit to set aside a sale was one year, as provided by Article 12, Limitation Act. The decision was based upon a consideration of 'Malkarjan's case (C)' referred to above, and it was followed in the case of -- 'Bhan Prasad v. Bhirgunath' AIR 1929 "Pat 323 (F).
The test applied in 'Malkarjan's case (C)' was whether the sale was an irregularity or a nullity, and it was observed that general assertions of the invalidity of such sales are only misleading when applied to a case in which the distinction between irregularity and nullity is the cardinal point. In the present case before us, the decree against the Mitakshara father binds the sons,' interest in the joint estate, and it was within the jurisdiction of the Court to enforce the liability of the mortgaged estates, though the sons were not parties to the suit. It follows, therefore, that it is necessary for the plaintiffs to have the sale set aside in order to be able to redeem the mortgage. The plaintiffs, accordingly, cannot get possession without having the sale set aside, and the Article applicable would be clearly Article 12, Limitation Act. In this view or the case, the suit is barred.
18. The question of limitation only having been argued in this appeal, and, as I am of the opinion that the suit is clearly barred by limitation, this appeal must be dismissed with costs.
Sinha, J.
19. I agree.