Madras High Court
G. Murugan And Ors. vs Manickam on 23 October, 2002
Equivalent citations: AIR2003MAD129, AIR 2003 MADRAS 129, (2003) 1 MAD LJ 55
ORDER K. Gnanaprakasam, J.
1. The petitioners are the plaintiffs in OS No. 144/1996, on the file of the District. Munsif Court Polur.
2. The plaintiffs have filed the suit for declaration of their title to the 'B' Schedule property and to direct the defendant to deliver vacant possession of the same and for permanent injunction.
3. The plaintiffs claim 'A' Schedule property under a registered Will dated 25-7-1997. At the time of the execution of the Will, the plaintiffs 3 and 4 alone were born and the plaintiffs 1 and 2 were born subsequently. The father of the plaintiffs was the de facto guardian for the minors. As per the terms of the Will, the plaintiffs are entitled to equal share in the 'A' Schedule property, The father and de facto guardian of the minors, without any necessity, nor for the benefit of the minors, had alienated the 'B' Schedule property to the defendant and the said sale is not valid and binding upon the plaintiffs.
4. The defendant filed a written statement, denying the Will relied upon by the plaintiffs and also their claims. Yet another contention raised by the defendant in the written statement is that the suit is barred by limitation as per the provisions of Hindu Law. If the eldest male member fails to question the sale before he attains the age of 21 years, the suit would be barred as regards the other members of the family as well. The plaintiffs 3 and 4 were aged 27 and 24 years respectively, on the date of the filing of the suit and they have not chosen to question the sale in favour of the defendant and therefore, the plaintiffs 1 and 2 also precluded from questioning the sale in favour of the defendant.
5. A check slip was issued in the above case, wherein it is observed as here under ;--
'This is a suit for declaration of plaintiffs that to the suit 'B' Schedule properties, for possession of the same, for permanent injunction against the defendants restraining them from alternating or encumbering the 'B' Schedule property for past and further mesne profits and for costs.
According to the plaint averment, the 'A' Schedule properties have been bequeathed on favour of the plaintiffs by their paternal grand father under a registered Will dated 21-5-1970, appointing the plaintiffs' father Gopal as Guardian. The plaintiffs' father died about a year ago. The plaintiffs' de facto guardian/father Gopal without any necessity seems to have alienated the 'B' Schedule property to the defendant under a registered sale deed dated 23-10-1972, during the minority of the plaintiffs. But. the registration copy of the said sale deed has not been filed by the plaintiff along with the plaint. The plaintiffs may be co-nominee parties to the said sale deed. Further it is alleged in the plaint that the plaintiffs came to know about the said alienation only ten months back. The age of plaintiffs 3 and 4 are 27 and 24 respectively, as per cause title in the plaint. As such the claim by the plaintiffs 3 and 4 is barred by limitation. The plaintiffs valued the suit under statutory minimum of Rs. 300/- under Section 25(a) of the Court Fees Act and paid Rs. 23,000/-. The plaintiffs ought to have prayed for cancellation of the sale deed dated 23-10-1972 and to pay Court Fee under Section 40(1) of the Court Fees Act.
Hence, the market value of 'B' Schedule properties as on the date of the suit to be ascertained and Deficit Court Fee to be ascertained and Deficit Court Fee to be paid. besides maintainability of claim by the plaintiffs 3 and 4."
6. The plaintiffs filed objections to the Check Slip, wherein they have stated that if any alienation is made by a De facto guardian, the same can be questioned within the period, as stated under Art. 65 of the Limitation Act and not as stated under Art. 60 of the Limitation Act. It is further stated that the alienation made by the father/de facto guardian need not be set aside as the plaintiffs were not parties to the said sale deed. The trial Court accepted the check slip and rejected the contention of the plaintiffs and also passed an order, rejecting the plaint itself, holding that the same is barred by limitation. As against the same, the plaintiffs have preferred this civil revision petition.
7. As there is delay in filing the petition, an application to condone the delay has been filed in CMP No. 5791 of 2002. The respondent, on notice represented by their advocate. The application to condone the delay and the unnumbered Civil Revision Petition have been taken and heard together and passed the following order :---
8. The plaintiffs have filed the suit for declaration of their title to the 'B' Schedule 'property and for recovery of possession and for permanent injunction, against the defendant, not to alienate or encumber the 'B; Schedule property, till the deposal of the suit. The plaintiffs' case is that the 'A' Schedule property was bequeathed to them, by their paternal grand father Vasiyan. under the registered Will dated 21-5-1970 and at that time, the plaintiffs 3 and 4 alone were born and subsequent to the Will, the plaintiffs 1 and 2 were born to the de facto guardian, Gopal, i.e. the father of the plaintiffs. The Will was executed by Vasiyan, while he was in a sound and disposing state of mind. As per the terms of the Will, all the plaintiffs are entitled to the properties in equal moiety. The plaintiffs and their father were the members of the Hindu joint family and the plaintiffs were represented by their father, including the plaintiffs 1 and 2. who were born subsequent to the Will. The plaintiffs' de facto guardian and father Gopal without any necessarily nor for the benefit of the minors, bad alienated the 'B' Schedule properly to the defendant. without getting proper sanction from the Court also. The sale in favour of the defendant Is not valid and binding upon the plaintiffs. The plaintiffs, therefore, sought for declaration of their title to the 'B' Schedule property and also for recovery of possession.
9. The defendant has filed written statement, denying the claim of the plaintiffs, especially the alleged Will. In order to discharge the family debt, the plaintiffs' father Gopal sold the property and therefore, the sale is valid. Gopal, as a natural guardian for the minors/plaintiffs, sold the property to discharge the antecedents debt and therefore, the sale if at all could only be said as voidable and not a void transaction. It is stated that the suit in also barred by time. if the eldest male member fails to question the sale deed before he attains the age of 21 years, the suit is barred as regards the other members of the family as well. The plaintiffs 3 and 4, were aged 27 and 28 years respectively, on the date of the filing of the suit and they have not chosen to question the alienation made by Gopal and therefore, the plaintiffs 1 and 2 also cannot question the sale deed.
10. The defendant further stated that if the plaintiffs desire to set aside the sale deed dated 1-10-1972, they have to value the suit under Section 40(1) of the Court Fees Act. In the check slip issued also, it. is stated that the plaintiffs' de facto guardian/father Gopal sold the 'B' Schedule property and the same is challenged by the plaintiffs In the suit. The plaintiffs should have prayed for cancellation of the sale deed dated 23-10-1972 and should have paid Court Fee under Section 40(1) of the Court Fees Act. That apart, the plaintiffs 3 and 4 are aged 27 and 24 years respectively, oh the date of the filing of the suit and as such, the claim of the plaintiffs 3 and 4 is barred by limitation.
11. The learned advocate for the defendant has submitted that as against the order of rejection of plaint, an Appeal alone would lie and not a Revision and that therefore, the CRP is not maintainable.
12. The points arise for consideration in this civil revision petition are :--
i. Whether the order, rejecting the plaint, is a decree or order and if so, whether the civil revision petition is maintainable?
ii. Whether the suit, filed by the minors, questioning the validity of the sale deed beyond three years, after attaining majority, is in time?
13. The learned advocate for the petitioners would contend that the sale deed executed by their father is a void document and the same is not valid and binding upon them. In such circumstances, they need not pray for setting aside of the sale deed. The plaintiffs' suit is one for declaration of their title to the suit properties and it is the contention of the plaintiffs that the cancellation of the sale deed is only an incidental and it does not require a separate prayer and also the payment of court fee under S. 40(1) of the Court Fees Act. The plaintiffs claim to the 'B' Schedule property is not in dispute and the same was alienated by their father and de facto guardian of the minors. which is not valid and binding upon them.
14. Section 11 of the Hindu Minority and Guardianship Act, 1956 prohibits the sale of minors* property by the de facto guardian and it says, "After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor." As such, any alienation made by the de facto guardian, after the, commencement of this Act, would be void ab initio and the alienee would not acquire any title to the property. The minors can very will ignore the sale made by the de facto guardian and it may not be necessary for them to pray for a declaration that the sale made by their de facto guardian is not valid.
15. The learned advocate for the petitioners further contended that the order passed by the trial Court on the check slip is only an order and not a decree and therefore, revision would lie. On the contrary, the learned advocate for the respondent would submit that the order, rejecting the plaint, is only a decree and only an appeal would He, under S. 96 of CPC.
16. Both the learned advocates for the petitioners and the respondent relied upon few decisions to support their contentions, which would be referred infra.
17. The learned advocate for the petitioners relied upon the case of Ratansingh v. Vijaysingh, AIR 2001 SC 279, wherein. the Supreme Court considered the definition of 'decree'. That is the case where an application to condone the delay was dismissed and consequently, the appeal was also dismissed as time barred. In the said context, it was held that the dismissal of the application to condone the delay and consequent appeal are not a decree and it is only an incidental order.
18. But, on the contrary, the learned advocate for the respondent relied upon the case of Nesammal v. Edward, , wherein, the learned Judge of. this Court (S. S. Subramani, J.), has held that since the order, rejecting the plaint, is a decree under the Code of Civil Procedure, revision is not maintainable. Even if the plaint is rejected on some other grounds not covered by Order 7, Rule 11 of C.P.C., the remedy is only an appeal under Section 96 of Code of Civil Procedure. That is the law declared by this Court in the case of R. Shanmughavelu Pillai v. R. Karuppannan Ambalam, AIR 1976 Mad 289 also.
19. A similar question arose for the consideration of this Court in the case of K. S. Geetha v. Stanleybuck, 2002 (2) Mad LJ 823, wherein the learned Judge (A. S. Venkatachalamoorthy, J.), after referring to various decisions, including the one , has held that as against the rejection of plaint, appeal alone will lie and not a revision. In view of the established and unassailed principles laid down by this Court, the 1st question is answered against the plaintiffs.
20. The next question is with regard to the validity of the sale deed, executed beyond 3 years after attaining majority. In the case of T. M. Kishnamoorthy Pillai v. Mangalam, 1998 Mad LJ 173, a question arose for the consideration of the Court, whether the alienation by the de facto guardian of the minors' property without prior permission of the Court is a void transaction and the period of limitation, within which the minor, in such circumstances, would seek for relief. After referring to various decisions rendered by this Court and also the Apex Court and placing reliance upon the decisions in the case of Mayilswami Chettiar v. Kaliamman, 1969(1) Mad LJ 177 and Kallathil Sreedharan v. Komath Pandyala Prasanna, 1997 (1) Mad LJ 61 (SC), held that the alienation was a void transaction, and the prayer would fall within the period of limitation under Article 65 and not under Article 60 of the Limitation Act.
Article 60 of the Limitation Act is meant to set aside a transfer of property made by the guardian of a ward, which prescribes 3 years time for the ward, who has attained majority, from the date on which the ward attained majority Article 65 of the Limitation Act deals with, for filing a suit for possession of an immovable property or any interest therein based on title, which prescribes 12 years time, when the possession of the defendant become adverse to the plaintiff. Our case is by the ward to set aside the sale made by the guardian and therefore, it falls only under Article 60 of the Limitation Act and not under Article 65.
21. In our case, out of four plaintiffs, the plaintiffs 3 and 4 were aged 27 and 24 years, on the date of the institution of the suit and they have not challenged the alienation made by the father within three years after they have attained majority. But, however, the plaintiffs 1 and 2 were aged only 20 and 16 years and in fact, the 2nd plaintiff was a minor, represented by one of his brothers. Ezhumalai. Though the suit filed on behalf of the plaintiffs 1 and 2 was within a period of 3 years from their attaining majority, the failure on the part of the 3rd plaintiff, who was the Manager of the family and neither himself nor the 4th plaintiff having failed to take action within the period of limitation provided for, the property itself was lost to the family and the suit was barred as against the younger brother also, whose suit independently was within the period of limitation. The above said view of mine was fortified by the judgment in the case of Natarajan v. Karuman Gounder, 1963 (1) Mad LJ 81 and the said view was accepted by the Division Bench of this Court, in the case of Venkatesan v. Neelayathakshiammal, .
22. In the case of Subramanyam v. Venkataraman, . it was held that "It is very well settled 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. The above said ruling is squarely applicable to the case on hand, as in our case also, the plaintiffs 3 and 4 have attained majority long back and they have not chosen to question the sale within a period of 3 years, but, the plaintiffs 1 and 2, who are well within 3 years have filed the suit and the said suit is barred, in view of the principles laid down by this Court, These views flow from the decisions in the case of Doraiswami Sirumadan v. Nondisami Saluvan, (1913-25 Mad LJ 405 : ILR 38 Mad 118 (FB)).
23. In the case of Vishwambhar v. Laxminarayana (Dead) (sic) "Article 60 of the Limitation Act prescribes a period of 3 years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority, it has, therefore, to be concluded that the suit is not filed by the plaintiffs 3 and 4 within a period of 3 years from the date of their attaining majority and that the suit filed by the plaintiffs 1 and 2 also can be barred, though they have not barred independent of their claim.
24. It is also to be noticed that under the Limitation Act. three types of declarations are provided under Articles 56, 57 and 58. Article 56 states, "To declare the forgery of an instrument issued or registered, the period of limitation is three years and the time from which period begins to run is. when the issue or registration becomes known to the plaintiff." Article 57 states. 'To obtain a declaration that an alleged adoption is invalid, or never, in fact, took place, the period of limitation is three years and the time from which period begins to run is, when the alleged adoption becomes known to the plaintiff." Article 58 states. "To-obtain any other declaration, the period of limitation is three years and the time from which period begins to run is, when the right to sue first accrues." Articles 56 and 57 are inapplicable to our case. But, the residuary clause provided under Article 58 deals with any type of declaration, which also prescribes only three years from the date when the right to sue first accrues. The right to sue first accrues when the plaintiffs attain majority and three years from the date of majority. The article is similar to Article 60 of the Limitation Act. The proper article would be Article 60. which states. "To set aside a transfer of property made by the guardian of a ward (a) by the ward, who has attained majority, three years from the date on which the ward attains majority." The plaintiffs have not filed the suit within three years from the date of their attaining majority. This article has got to be read conjointly with Section 7 of the Limitation Act, which reads as under:--
"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 was 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 purposes 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."
As the 3rd plaintiff is the eldest male member and Manager of the Hindu undivided family, he shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family and when he has not chosen to file his suit within a period of three years from the date of attaining majority, the said disability would extend to the plaintiffs 1 and 2 also and therefore they are barred from bringing the suit. In the said view of the matter, even if the plaintiffs have paid the Court-fee under Section 40(1) of the Court-fees Act to declare the sale as invalid, their very right to file the suit itself is barred under Article 60 of the Limitation Act read with Section 7 of the Limitation Act. 1963 and therefore, the very suit instituted by the plaintiffs is not maintainable and hence, the plaintiffs prayer cannot be complied with.
25. For the reasons stated above, the application in C.M.F. No. 5791/2002 to condone the delay is dismissed and the unnumbered civil revision petition is also dismissed on both the grounds: (1) that as against the rejection of the plaint, revision will not lie and only an appeal will lie; (ii) that the suit brought out by the plaintiffs 1 and 2 is barred as the plaintiffs 3 and 4 have not brought the suit within a period of 3 years from their attaining majority, as provided under Article 60 of the Limitation Act read with Section 7 of the Limitation Act, 1963.