Punjab-Haryana High Court
Abnash Chander And Anr. vs Surat Singh (Deceased) Represented By ... on 3 May, 1991
Equivalent citations: I(1993)DMC469
JUDGMENT G.C. Garg, J.
1. This is a plaintiffs appeal who remained unsuccessful in the two Courts below. The facts giving rise to this appeal are that the plaintiffs filed a suit for joint possession of half share of the land sold by their brother Jagdish Chander through a registered sale deed dated 25-6-1257 on the ground that on the date of* sale both the plaintiffs were minors. Abnash Chander, Plaintiff was born on 9-7-1939 and Ramesh Chander was born on 20.4.1943. The vendor was not the guardian and thus had no right to sell their half share in the land in question. The sale was also challenged on the ground that it was not for the benefit of the plaintiffs and had been sold without permission of the Court.
2. The defendants contested the suit and alleged that the plaintiffs and the vendors constituted Joint Hindu Family and the sale made by Jagdish Chander who was the Karta of the family was perfectly legal. It was also pleaded that the sale in question was for the benefit of Joint Hindu Family and that the sale proceeds of the property were required for construction of the house and for trade and thus was for legal necessity. Sale of the Joint Hindu Family property was an act of good management and the vendees had made proper inquiries before purchasing the property. It was pleaded that the sale was for consideration and Jagdish Chander was Karta of the Joint Hindu Family of the Plaintiffs and vendors and thus had right to sell the property. Out of the pleadings of the parties, the following issues were framed :-
(1) Whether Plaintiffs are the owners to the extent of half share in the property in dispute ? OPP.
(2) Whether sale in question is void and is, therefore, not binding on the right of plaintiffs ? OPP.
(3) Whether the suit is within time ? OPP (objected to) (4) Whether plaintiffs and the vendors defendants formed Joint Hindu Family at the time of sale ? OPD (Onus objected to).
(5) Whether property in suit was Joint Hindu Family property and the sale was by Karta ? If so, to what effect ? OPD.
(6) Whether the sale in question was for consideration legal necessity and was of good management and for the benefit of Joint Hindu Family ? If, so, to what effect ? OPD.
(7) Whether suit is bad on account of non-joinder of necessary party? OPD.
(8) Relief.
The learned Trial Court concluded that the plaintiffs were the owners of the half share and that the property was Joint Hindu Family Property and the sale made by Karta was valid and binding on the plaintiffs. Under issue No. 6, it was found that the sale was for consideration and legal necessity and an act of good management for the benefit of the Joint Hindu Family Under issue No. 3, however, it was found that the suit was within limitation having been brought within 12 years, from the date of sale. In view of the above findings, the Trial Court dismissed the suit.
2. On appeal by the plaintiffs, the only point argued before the Lower Appellate Court was regarding the character of the Property. The argument was that the property was not Joint Hindu Family Property and thus the sale made by Jagdish Chander not binding on them.
3. The learned Additional District Judge found that the property was Joint Hindu Family Property. The question whether the suit was within limitation or not was not raised before the lower Appellate Court.
4. The learned Counsel for the appellants argued that sale in question was not by the Karta of Joint Hindu Family but by a co-owner. He submitted that the sale deed Ex. D 2 clearly showed that it was a sale by Jagdish Cbander in his individual capacity as also as an attorney for his brother and the minors through their mother and thus not binding on the plaintiffs. He further contended that the sale even if taken to be by Karta cannot bind them in view of the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956. The learned Counsel further argued that the findings recorded by the Courts below that the property is Joint Hindu Family Property is not correct and is based on misreading of evidence. He submitted that it is proved on the record that the property was held by the parties as tenants-in-common and not as joint tenants.
5. The learned Counsel for the respondents on the other hand contended that the sale made by Jagdish Chander was as Karta of the Joint Hindu Family and binding on the plaintiffs and that the property had rightly been held to be Joint Hindu Family Property of the Plaintiffs.
6. In my view, it is not necessary to consider the respective contentions of the learned Counsel for the parties in face of the admitted facts. The dates of birth of the plaintiffs are 9.71939 and 20.4.1943 respectively. The sale admittedly took place on 25.6.1957 and the suit was filed on 30.5.1969. In case the findings of the Courts below are affirmed that the property is Joint-Hindu Family Property and the sale is made by a Karta, the sale cannot be set aside as a firm finding has been recorded that the sale was for consideration and legal necessity apart from the fact that it was an act of said management and for the benefit of the Joint Hindu Family. Once the findings of consideration and legal necessity are not questioned as has happened in the present case, plaintiffs cannot succeed.
7. On the other hand, even if it is found that the property is not proved Joint Hindu Family Property and was held by the brothers as tenants-in-common, the sale cannot be set aside in view of the fact that Jagdish Chander sold the property acting for himself and as Mukhtiar of his brother and as Mukhtiar of the plaintiffs. The mother who is a natural guardian of the minors had authorised the major son to sell the property of the minors through a power of attorney Ex. DJs. The sale of the minors, property would thus be by the natural guardian of the minors. When the property is sold by a natural guardian or by any other person under the authority of the natural guardian, the sale is voidable at the instance of the minors, Section 8 of the Hindu Minority and Guardianship Act may be read with advantage in that behalf which reads as under :--
Section 8(1) The natural guardian of a Hindu minor has power, subject to the provisions of this Section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the Court-
(a) mortgage or charge, or transfer by sale, gift exchange or otherwise, any part of the immovable property of the minor, or
(b) lease any part of such property for a term excel ding more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian in contravention of Sub-section (1) or Sub-section (2) is voidable at the instance of the minor or any person claiming under him."
8. Article 60 of the Limitation Act provides a period of three years for avoiding such a sale on attaining majority. In the present case, the plaintiffs attained majority on 8-7-1957 and 19-4-1961. They could thus avoid the sale at the latest on or before 19-4-1964 and the present suit filed on 30-5-1969 is clearly barred by time. The question whether transfer of immovable property by a natural guardian in contravention of Section 8 (1), (2) of the Hindu Minority and Guardianship Act, 1956 can be challenged by way of suit by the minor only within the prescribed period of three years from attaining majority under Article 60 of the Limitation Act, 1961, happened to be considered by a Full Bench of this Court in Surta Singh v. Pritam Singh, AIR 1983 Pb and Har. 114. The Full Bench concluded the answer to this question in the following words :-
"To conclude finally, the answer to the question posed at the very outset is rendered in the affirmative. It is held that a quondam minor plaintiff challenging the transfer of an immovable property through his natural guardian in contravention of Section 8 (1) and (2) of the Hindu Minority and Guardianship Act, 1956 and seeking possession of the property can bring the suit only within the prescribed period of three years after attaining majority under Art. 90 of the Indian Limitation Act, 1963. The view of the Division Bench in Pran Nath v. Bal Kishan, AIR 1959, Punjab 313. Holding to the same effect, is hereby affirmed".
Thus the suit filed on 30th May, 1969 by the minors is hopelessly barred by time.
9. The sale had been effected in this case of the property of the minors by the natural guardian, mother, through her major son without seeking permission of the Guardian Court under Section 8 of the Hindu Minority and Guardianship Act, 1956. If the permission bad been taken, nothing would have survived, but even if the permission is not taken sale made by the natural guardian would be a voidable sale and could be avoided within a period of three years on attaining majority and not thereafter. The finding recorded by the Trial Court under Issue No. 3 that the suit is within limitation having been filed within 12 years of the sale is not correct and deserves to be reversed which I hereby do.
10. I am conscious of the fact that the Trial Court while recording the finding under Issue No. 3 has held that the suit is within limitation having been filed within a period of twelve years from the date of sale and this finding had not been challenged in the Lower Appellate Court. Order 41, Rule 33 of the Civil Procedure Code authorises the appellate Court to pass any decree and make any order which ought to have been passed or made and to pass or make such decree or order as the case may require and this power can be exercised by the Court notwithstanding that the appeal is as to part only of the decree and although the respondents against whom such finding had been recorded had not filed any appeal on cross-objections. I called upon the parties to address arguments to show as to how the suit was within limitation. The learned Counsel for the appellants could not show as to how the suit filed beyond a period of three years be said to be within limitation especially in the face of the judgment of the Full Bench in Surta Singh's case (supra).
Thus to conclude, I am of the view that the suit was not filed within the period of limitation and thus reverse the findings of the Trial Court under Issue No. 3. Consequently, the appeal fails. The judgment and decree of the Courts below is affirmed though on a different ground. Even otherwise as already held, if the finding of the Courts below as regard the Joint Hindu Family property is accepted, the appeal is to fail, the sale being for legal necessity. I have even otherwise considered the evidence on the record and find no reason to differ with the findings recorded by the Courts below as regards the character of Joint Hindu Family Property. The appeal fails on this ground as well. In view of what has been discussed above, the appeal fails and is dismissed. There will, however, be no order as to costs.