Karnataka High Court
Sri M Ramaiah vs Sri E G Ramamurthy on 18 May, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 1516 OF 2010 (DEC)
BETWEEN:
SRI. M. RAMAIAH
S/O. LATE. MUTHURAYAPPA
AGE: 56 YEARS
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
... APPELLANT
(BY MR: ASHOK B PATIL, ADVOCATE)
AND:
1. SRI. E.G. RAMAMURTHY
S/O LATE GANGADHARAIAH
AGE: 69 YEARS
R/O. BHAGIRATHAMMA CHOULTRY
BANGALORE NORTH TALUK.
SINCE DEAD BY HIS LRs
1(A) SMT MEERABAI P S
W/O LATE RAMAMURTHY E G
AGED 70 YEARS
R/AT NO.1, 22ND CROSS
MARUTHI NAGAR
YELAHANKA
BANGALORE - 560 064
1(B) SMT.SHYLAJA
W/O RAMACHANDRA
D/O LATE RAMAMURTHY E G
AGED ABOUT 49 YEARS
BYATARAYASWAMY TEMPLE STREET
GUDIHATTI, TURUVEKERE
TUMKUR DISTRICT - 577 227
2
1(C) SMT VIJAYLAKSHMI
W/O B K MANJUNATH
D/O LATE RAMAMURTHY E G
AGED ABOUT 45 YEARS
R/O NO 32, 5TH MAIN
8TH CROSS, MALLESWARAM
BANGALORE - 560 003
1(D) SMT.HEMALATHA Y R
W/O N L N SWAMY
D/O LATE RAMAMURTHY E G
R/O C/O RAGHAVENDRA RAO
NO.135, GAYATHRI NILAYA
GOKUL EXTENSION
DEVASANDRA, K R PURAM
BANGALORE
2. SRI. GANGADHAR
S/O. E.G. RAMAMURTHY
AGE: 41 YEARS
R/O. BHAGIRATHAMMA CHOULTRY
BANGALORE NORTH TALUK.
3. SRI. MUNICHINNAPPA
FATHER'S NAME NOT
KNOWN TO APPELLANT
SINCE DEAD BY L.R.
3(A) SRI. MUNIYAPPA
S/O. LATE MUNICHINNAPPA
AGE: 78 YEARS
R/O. VARTHUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
4. SRI. MUNINARASIMHA
SINCE DECEASED BY HIS L.R.
ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
4(A) SRI. MUNIRAMA
S/O. MUNINARASIMHA
AGE: 73 YEARS
3
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
5. SRI. KANTHAIAH
S/O. THIMMAIAH
AGE: MAJOR
R/O. PARASANAPALYA
BIDADI HOBLI
RAMANAGAR TALUK 560 064.
6. SRI. KENCHAPPA
SINCE DECEASED BY HIS L.R.
S/O. HOBALIAH
AGE: MAJOR
R/O. ATTUR VILLAGE
YELAHANKA HOBLI,
BANGALORE NORTH TALUK 560 064.
6(A) SRI. MUNIYAPPA
S/O. LATE KENCHAPPA
AGE: 81 YEARS
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
7. SRI. POOJAPPA
SINCE DECEASED BY HIS L.R.
S/O. HOBALAIAH
AGE: MAJOR
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
7(A) SRI. RAMAIAH
S/O. LATE POOJAPPA
AGE: MAJOR
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
8. SRI. VENKATESHA
S/O VENKATARAMANAPPA
4
AGE: MAJOR
R/O ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
9. SMT. GANGAMMA
W/O. RAMADASU
AGE: MAJOR
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
9(A) SRI. RAMDAS
HUSBAND OF GANGAMMA
AGE: 88 YEARS
9(B) SRI. VENKATESH
S/O RAMDAS
AGE: 51 YEARS.
9(C) SRI. KRISHNAMURTHY
S/O. RAMDAS
AGE: 48 YEARS.
9(D) SRI. GOVINDA
S/O. RAMDAS
AGE: 46 YEARS.
9(E) SRI. SRINIVAS MURTHY
S/O RAMDAS
AGE: 38 YEARS.
9(F) SRI. GOPAL
S/O. RAMDAS
AGE: 34 YEARS
9(G) SMT. SHANTHAMMA
D/O. RAMDAS
AGE: 59 YEARS
ALL RESIDING AT ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
5
10. SRI. MUTHURAYAPPA
SINCE DECEASED BY HIS L.RS.
S/O PUTTAMADAPPA
AGE: MAJOR
R/O. VEERASAGARA VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
10(A) SMT. SHAKARBYRAMMA
W/O. LATE MUTHURAYAPPA
AGE: MAJOR
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
11. SRI. PILLAPPA
SINCE DECEASED BY HIS L.R.
S/O. HOBALAPPA
AGE: MAJOR
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
11(A) SRI. NARASIMHAIAH
S/O. PILLAPPA
AGE: 66 YEARS
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
12. SRI. CHIKKARAMA
SINCE DECEASED BY HIS L.RS.
S/O. MUNIYAPPA
AGE: MAJOR
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
12(A) SMT. CHINNAMMA
W/O. CHIKKARAMA
AGE: MAJOR.
12(B) SRI. RAMAKRISHNA
S/O. CHIKKARAMA
AGE: MAJOR
6
BOTH ARE RESIDENT OF
R/O. ATTUR VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK 560 064.
... RESPONDENTS
(BY MRS: SONA VAKKUND, ALONG WITH
MR. H.N. BASAVARAJU, ADVOCATE FOR R1 (A-D) & R2
NOTICE TO R3 TO R12(B) IS DISPENSED WITH
VIDE ORDER DATED 28.06.2010
R1(B) TO 1(D) AND R-2 ARE TREATED AS LRS OF DECEASED
R1(A))
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 13.04.2010, PASSED IN
R.A.NO.65 OF 2001, ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACT COURT-II, BANGALORE RURAL DISTRICT,
BANGALORE, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 12.02.2001 PASSED IN O.S.NO.78
OF 1968, THE FILE OF THE II ADDITIONAL CIVIL JUDGE, (JR.DN.),
BANGALORE RURAL DISTRICT, BANGALORE.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.11.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant No.9(b) is before this Court being aggrieved by the judgment and decree dated 13.04.2010 passed in RA No.65 of 2001 on the file of the learned Sessions Judge, Fast Track Court-II, Bengaluru Rural District (hereinafter referred to as 'the First Appellate Court' for brevity), allowing the appeal and setting aside the judgment and decree dated 12.02.2001 passed in OS No.78 of 1968 on the file of the learned Additional Civil Judge (Jr.Dn.), Bengaluru Rural 7 District (hereinafter referred to as 'trial Court' for brevity), declaring that plaintiffs are the owners of the plaint schedule properties and directing defendants to hand over the vacant possession of the same to plaintiffs.
2. For the sake of convenience, parties are referred to as per their status and rank before the trial Court.
3. Brief facts of the case are that, plaintiff 1 and 2 have filed OS No.78 of 1968 before the trial Court against the defendants seeking declaration that they are the owners of the plaint schedule properties in possession of the same. The schedule appended to the plaint describes 11 items of the properties with boundaries.
4. It is contended by the plaintiffs that first item of the property was the self-acquired property of late Venkannaiah. Defendant No.1 - Subbamma is the daughter of said Venkannaiah and mother of plaintiff No.1. Thus, Plaintiff No.1 is the grandson of Venkannaiah. The said Venkannaiah executed a registered Will dated 02.03.1945 bequeathing first item of the plaint schedule in favour of plaintiff No.1 and in case, plaintiff No.1 begets a son, creating 8 absolute interest in his favour. Venkannaiah died about 15 years back and defendant No.1 was said to be managing the properties. It is stated that defendant No.1 - the mother of plaintiff No.1 alienated the said item No.1 of the schedule in favour of other defendants bit by bits. Item Nos.2 to 12 are the smaller extents of land comprised in item No.1.
5. The plaintiffs contended that defendant No.2 is in possession of item No.2 of the schedule. Similarly, defendant No.3 is in possession of item No.3; defendant No.4 is in possession of item No.4; defendant No.5 is in possession of item No.5; defendant No.6 is in possession of items 6 and 11; defendant No.7 is in possession of item No.7; defendant No.8 is in possession of item No.8; and defendant No.9 is in possession of item No.10. It is also contended that defendant No.1 sold item No.12 of the schedule property in favour of defendant No.11 and he is in possession of the same.
6. It is stated that the possession of the schedule properties by various defendants are illegal and defendant No.1 had no authority to alienate any portion of the properties and said alienations are not binding on the plaintiffs. It is 9 stated that cause of action for the suit arose about seven years back when plaintiff No.1 attained majority, but the suit is in time from the date of knowledge, as it was brought to the notice of plaintiff No.1 about the sale of the properties only during first week of February, 1968. Therefore, plaintiffs prayed to declare them as owners of the plaint schedule properties and to direct the defendants to deliver the possession of the same.
7. Defendants 2 to 10 have filed the written statement denying the contentions of the plaintiffs. It is contended that Venkannaiah had three wives and children. Plaintiff No.1 is the son of Venkannaiah through his second wife i.e., defendant No.1. She was married to one Sri Gangadharaiah of Edagur Village and had begotten a daughter by name Venkatamma. Defendants pleaded ignorance about the relationship of plaintiff No.2 with plaintiff No.1.
8. Defendants pleaded ignorance about the Will dated 02.03.1945, but contended that defendant No.1 was the owner of the schedule lands and she was collecting rent from defendants prior to the date of sale. It is denied that the 10 ownership over the properties was bequeathed in favour of plaintiffs under the Will. The contention of plaintiff No.1 that he came to know about various alienations done by his mother defendant No.1 very recently is denied. It is contended that defendant No.1 was never in possession of the schedule lands, but was only collecting rent. Plaintiff No.1 being the son was aware of various sale deeds executed by defendant No.1. It is contended that defendant No.1 persuaded defendants to purchase the schedule lands for family necessities i.e., for upbringing and educating the minor
- plaintiff No.1.
9. It is contended that defendants 2 to 10 are in continuous possession and enjoyment of the schedule lands initially as tenants; and after purchase, as owners. Therefore, the possession of the properties is legal and the plaintiffs or defendant No.1 have no authority to seek possession of the properties. It is also contended that even as per the cause of action stated by the plaintiffs, the suit is barred by limitation. The plaintiffs have no right whatsoever to maintain the suit and therefore, not entitled for declaration and possession. Accordingly, prayed for dismissal of the suit. 11
10. The plaintiffs filed the rejoinder in the form of reply to the written statement denying the contention of the defendants that Venkannaiah had three wives and children. It is denied that defendants 2 to 10 were aware of the Will dated 02.03.1945 or that defendant No.1 was collecting the rent from defendants before the dates of sale deeds. The other contentions taken in the written statement are all denied.
11. During the pendency of the suit, defendant No.9 died and his legal representatives i.e., defendants 9(a) and
(b) have filed the written statement denying execution of Will by Venkannaiah bequeathing item No.1 of the schedule properties in favour of the plaintiffs. It is contended that Venkannaiah had no absolute right over the properties to execute the Will and the same will not convey any right, title or interest in favour of the plaintiffs. It is contended that plaintiff No.2 was not even born on the date of filing the suit and therefore, the suit is liable to be dismissed.
12. It is contended that after the death of Venkannaiah, his daughter-Subbamma derived title in respect of item No.1 and she became the absolute owner of the 12 properties. She alienated the schedule properties in favour of the defendants. Plaintiff No.1 was aware of such sale transaction even when he was minor. Immediately, after attaining the majority, he had not taken any steps to avoid those sale deeds. It is stated that defendant No.1 after the death of her husband, had no source of income and therefore, persuaded the defendants to purchase the schedule properties to meet family necessities, including educating plaintiff No.1. Under such circumstances, defendants 2 to 8, 10 and 11 have purchased the schedule items under various sale deeds. There was no express prohibition to alienate the schedule properties, as the same was for family necessities.
13. It is contended that defendant No.9 purchased an extent of 2 acres of land in Sy.No.31 of Attur Village from Sri Gangappa under the registered sale deed dated 29.08.1967. The said Gangappa had purchased the property under the registered sale deed dated 24.04.1959. Thus, defendant No.9 had acquired absolute right over the same and after his death, his legal representatives i.e., defendants 9(a) and (b) have acquired title over the same.
13
14. It is contended that plaintiffs deliberately have not stated the total extent of item No.1 and therefore, they were put to strict proof that the properties purchased by defendant No.9 falls within item no.1 of the schedule property. It is also contended that the suit filed by plaintiffs is bad for non- joinder of necessary parties i.e., Sri Gangappa, the vendor to defendant No.9, is not arrayed as the defendant. It is further contended that defendant No.9, after purchase of the property, along with his family members, carried out several developmental activities and improved the land in question. Defendant No.9 constructed a choultry by name Sri Ranganathaswamy Kalayana Mantapa by spending several lakhs of rupees. Several other constructions like, residential house, were built on the property. The plaintiffs never objected for any of these developmental activities.
15. It is also contended that plaintiff No.1 and defendant No.1 have sold 2 acres of land in Sy.No.31 of Attur Village which is described as item No.11 of the schedule, in favour of defendant No.6 under the registered sale deed dated 12.02.1956. After the death of defendant No.6, his sons who acquired title, have sold the said item No.11 in favour of 14 defendant No.9 under the registered sale deed dated 11.01.1982. It is further contended that defendant No.9 during his life time sold 3/4th portion of the item No.11 and had retained only 1/4th portion with him. In the retained portion, defendant No.9 and his son Ramaiah have constructed a temple and several shops by investing several lakh of rupees. In the remaining 3/4th portion sold by defendant No.9, various other persons have constructed houses, shops etc., Now it is a developed layout and the nature of the property itself has changed.
16. It is further contended that plaintiffs have not challenged any of the sale deeds executed in favour of defendant No.6 in respect of item Nos.6 and 11 which were subsequently sold by defendant No.6 and his son in favour of defendant No.9. Even the subsequent purchasers of items 6 and 11 are not arrayed as parties to the suit. It is stated that 3 acres of land was purchased by Dodda Muniswamappa from plaintiff No.1 and defendant No.1, and out of the same, the said Dodda Muniswamappa sold 1 acre of land in favour of Sri Munimarappa under the registered sale deed dated 04.06.1961, which is described as item No.6 in the schedule 15 property. The said Munimarappa, in turn, sold item No.6 in favour of defendant No.6 under the sale deed dated 07.06.1965. After the death of defendant No.6, his sons sold the said properties in favour of defendant No.9 under the registered sale deed dated 22.08.1997.
17. It is submitted that the purchase of item No.6 from defendant No.6 was never challenged by plaintiffs or by defendant No.1. Several sites were formed in the said land and each of the sites were sold in favour of different purchasers; in turn, purchasers have constructed several houses and shops. Some of the properties were further sold in favour of other parties. Therefore, item no.6 is now fully converted into a layout and none of the purchasers have arrayed as defendants.
18. It is submitted that defendant No.11 sold item No.12 of the schedule property in favour of defendant No.9 and the revenue entries also changed in his name. It is further submitted that plaintiff No.1 and defendant No.1 have sold 3 acres of land in item No.1 of the schedule property in favour of one Dodda Muniswamappa under the registered sale 16 deed dated 15.12.1956 who, in turn, sold one acre of land in favour of Smt. Akkayamma under the registered sale deed dated 25.04.1961, which is described as item No.7. The said Akkayamma sold item No.7 in favour of defendant No.7 under the registered sale deed dated 14.03.1965, who in turn, sold it in favour of defendant No.9. Entire item No.7 is now converted into layout with several sites. Several such sites were purchased by various purchasers. None of the sale deeds were challenged by plaintiffs or by the defendant No.1 at any point of time. All the sale deeds are binding on the plaintiffs and they are not entitled for any declaration.
19. It is stated that defendants 2 to 10 were in continuous possession and enjoyment of the suit schedule properties much prior to the sale of the land in his favour. The possession was valid. The purchasers and defendants 2 to 10 were in possession and enjoyment of various bits of properties as absolute owners. Plaintiffs now cannot claim possession of the properties without arraying any of them as parties to the suit. It is submitted that the suit was filed by plaintiffs in collusion with defendant No.1 and the suit is barred by limitation. The suit is liable to be dismissed for non 17 description of the suit schedule properties in a proper manner, so also, for non-joinder of necessary parties. Therefore, prayed for dismissal of the suit.
20. On the basis of these pleadings, the Trial Court framed the following issues and additional issues for consideration:
"1. Whether plaintiffs prove their title to suit property?
2. Whether plaintiffs prove the due execution of the will dated: 02/03/1945?
3. Whether the alienations made by first defendant in favour of the other defendants are binding on plaintiffs as alleged ?
4. Is the suit barred by limitation?
5. Whether plaintiffs are entitled to the relief of declaration and possession?
6. What relief?"
Additional Issues:
"1. Whether the first plaintiff proves that he is the grand son of Venkannaiah and whether 18 second plaintiff proves that he is the great grand son of Venkannaiah?
2. Whether the plaintiffs prove that Venkannaiah had absolute right and title over item No.1 of suit property?
3. whether the plaintiffs prove that item No.1 of the suit properties are self acquired properties of Venkannaiah?
4. whether the suit is bad for non-
joinder of necessary purchasers of suit schedule properties?
5. Whether LRs of 9th defendant proves that they have developed the portion properties which they have purchased and they are in lawful possession of the same as averred in written statement as absolute owners?"
21. Plaintiffs examined themselves as PWs.1 and 2 and got marked Exs.P1 to 26 in support of their contention. Defendants examined DWs.1 to 6 and got marked Exs.D1 to 25 in support of their defence. The trial Court, after taking into consideration all these materials on record, answered issues 1, 2 and 5 and additional issue No.3 in the Negative 19 and issues 3 and 4 and additional issues 1, 2, 4 and 5 in the Affirmative and dismissed the suit of the plaintiffs.
22. Being aggrieved by the same, the plaintiffs preferred RA No.65 of 2001 before the First Appellate Court. The First Appellate Court, on re-appreciation of the materials on record, allowed the appeal and decreed the suit of the plaintiffs declaring them as the owners of the schedule properties and directed the defendants to vacate and hand over the possession of the properties in favour of plaintiffs. Being aggrieved by the same, defendant No.9(b) is before this Court.
23. Heard Sri Ashok B Patil, learned counsel for the appellant and Smt Sona Vakkund along with Sri H N Basavaraju, learned counsel for respondents 1(a to d) and 2. Notice to respondents 3 to 12(b) is dispensed with vide order dated 28.06.2010. Perused the materials on record including the Trial Court records.
24. Learned counsel for the appellant contended that the Will said to have been executed by Venkannaiah is not proved in accordance with law. None of the attesting 20 witnesses were examined to prove the execution of the Will nor the procedure contemplated to prove the Will when the attesting witnesses are not found, is followed. Even the evidence of PWs.3 to 5 are not helpful for the plaintiffs. PW4 has not identified any of the signatures of deceased Venkannaiah. Exs.P1 or P7 do not bear the signatures of Venkannaiah, while PW4 categorically states that Venkannaiah used to sign the documents. Therefore, due execution of Ex.P1 is not proved.
25. Learned counsel further submitted that Ex.P1 is the certified copy of the so-called Will dated 02.03.1945. The original Will is also not produced before the Court. No foundation is laid to admit the secondary evidence. He further submitted that the entire extent of the schedule property are sold by defendant No.1 and her son who is plaintiff No.1. The plaintiffs themselves produced Exs.P3 to P7 under which various portions of the properties were sold in favour of different persons. The details of various alienations are not furnished. All the purchasers are not arrayed as parties to the suit. The original sale deeds are not produced 21 before the Court nor there is any prayer with regard to the said sale deeds.
26. Learned counsel further submitted that on the date of alleged Will-Ex.P1, plaintiff No.1 was said to be aged 9 years. He attained majority during 1958 and the suit came to be filed on 15.02.1968 i.e., after lapse of 10 years which is hopelessly barred by limitation.
27. Learned counsel further submitted that even as per the recital found in Ex.P1 in respect of 'B' schedule property, plaintiff No.1 is entitled to enjoy the property and only after his death, plaintiff No.2 would succeed to his interest. Therefore, plaintiff No.2 had no manner of right, title or interest to file and maintain the suit. He further contended that plaintiff No.2 is said to have born in 1967 i.e., about 18 years after the death of Venkannaiah, who died in the year 1949 bequeathing properties in favour of unborn person or the person who is not in existence, and the same is void. Therefore, plaintiff No.2 will not succeed to any interest.
28. Learned counsel placed reliance on Murugan and Others Vs Kesava Gounder (Dead) Through Legal 22 Representatives and Others1, to contend that when once the properties are said to have been vested with plaintiff No.1 immediately after the death of Venkannaiah, the birth of plaintiff No.2 subsequently, will not have any consequence and it will not divest the right of plaintiff No.1.
29. Learned counsel also placed reliance on the decision in the case of Suhrid Singh alias Sardool Singh V. Randhir Singh and Others2 in support of his contention that the plaintiff had not claimed relief of annulling any of the sale deed in respect of the schedule properties. He further stated that in view of Section 8 of Hindu Minority and Guardianship Act, defendant No.1 was the natural guardian of the minor plaintiff No.1 and she sold many of the items of the properties to meet the family necessities representing the minor plaintiff No.1. Under such circumstances, he should have sought for setting aside those sale deeds immediately after attaining the age of majority.
1 AIR 2019 SC 2696 2 (2010) 12 SCC 112 23
30. Learned counsel placed reliance on Bailochan Karan Vs Basant Kumari Naik and Another3, Utha Moidu Haji Vs Kuningarath Kunhabdulla and Others4, Vishwambhar and Others v. Laxminarayan (Dead) Through Lrs. And Another5, in support of his contention that the suit filed by plaintiffs is barred by limitation.
31. Learned counsel further submitted that it is for the first time, before this Court, an attempt is being made to contend that plaintiff No.1 was having the right over the properties only till the birth of plaintiff No.2. Plaintiffs have not taken such contentions in the plaint nor it was their contention while deposing before the Trial Court. The examination-in-chief of PWs.1 and 2 makes this position very clear about the recital in Ex.P1. Admittedly, plaintiff No.1 died during 2013. By that time, all the schedule properties were sold either by defendant No.1 or by plaintiff No.1 or by both of them together. Nothing remains for plaintiff No.2 to succeed.
3 (1999) 2 SCC 310 4 (2007) 14 SCC 792 5 (2001) 6 SCC 163 24
32. Learned counsel further submitted that even if the contention of plaintiffs that all the sale deeds are void and not binding on them is to be accepted, at least, all those sale deeds are to be identified and the purchasers under various registered documents should have been arrayed as parties, who are admittedly in possession of the properties in question. He further contended that the appellant purchased all the schedule properties under various sale deeds. Some of the sale deeds were obtained during the pendancy of the suit. Except retaining a bit of land over which a temple and a school were built, all other properties are already converted and a layout is formed. The sites formed in the layout were sold in favour of innumerable persons who in turn have constructed various structures/houses and are enjoying the properties. Even if the doctrine of lis pendens is to be applied, the same cannot be for an indefinite period. The Limitation Act bars the remedy after expiry of certain period to have certainty in the matter.
33. Learned counsel placed reliance on the decision in Rajender Singh and Others Vs Santa Singh and Others6, 6 (1973) 2 SCC 705 25 in support of his contention that when the suit is barred by limitation, the plaintiffs cannot take advantage of Section 52 of Transfer of Property Act. The trial Court, on appreciation of the materials on record, rightly held that the plaintiffs are not entitled for any of the relief's and dismissed the suit. The First Appellate Court, without proper appreciation of the materials on record, allowed the appeal. The reasons assigned by the First Appellate Court in decreeing the suit is perverse and the same is liable to be set aside. Therefore, learned counsel for the appellant prays for allowing the appeal and to set aside the impugned judgment and decree passed by the First Appellate Court, in the interest of justice.
34. Per contra, learned counsel for the respondents opposing the appeal submitted that the only question that is to be decided is, "whether defendant No.1-Subbamma had right to alienate the properties?" As per the Will executed by Venkannaiah, neither plaintiff No.1 nor defendant No.1 were having any right to alienate the schedule properties. Such a right is created only in favour of plaintiff No.2 who is the son of plaintiff No.1. Learned counsel further submitted that even if the suit filed by plaintiff No.1 is to be held as barred by 26 limitation, the suit filed by plaintiff No.2 is well within time, because the suit was filed during the minority of plaintiff No.2. The sale deeds that were executed by defendant No.1 were during the minority of plaintiff No.1 and also plaintiff No.2. Defendant No.1 could not have represented plaintiff No.2 as his minor guardian for the purpose of executing the sale deed and alienating the properties. Moreover, she has not taken permission to alienate the property belonging to the minor. Therefore, it is her contention that the suit filed by plaintiff No.2 is maintainable and it is well within time.
35. Learned counsel contended that even though a defence was taken that the schedule properties are the ancestral properties and Venkannaiah had no right to gift the property under Will, the recitals found in the Will itself make it clear that the properties are his self-acquired properties. Therefore, the testator had right to bequeath the property in favour of plaintiff No.2. When the suit filed by plaintiff No.2 is to be held as within the period of limitation, he is entitled for the relief sought for in the suit. To seek decree of declaration and possession of the properties, the details as to how many sale deeds were executed, and in whose favour, are all 27 irrelevant. Even though a defence was taken that defendant No.1 sold the properties to meet the family necessities i.e., for upbringing and education of plaintiff No.1, the said contention is not proved by producing the relevant sale deeds.
36. Learned counsel further submitted that the defence taken by the appellant holds good only against plaintiff No.1. Plaintiff No.2 has got independent and different right. The same cannot be denied when the suit is instituted during his minority. Learned counsel also submitted that the plaintiffs who preferred Regular Appeal before the First Appellate Court, filed application under Order XLI Rule 27 of CPC and examined the Sub-Registrar as PW3 and grandson of one of the attesting witnesses, as PW4. Ex.P27 is the copy of the thumb impression register produced before the Court. Ex.P1, along with Ex.P27 coupled with evidence of PWs.3 and 5, would prove the contention of plaintiffs regarding the bequeath made in favour of plaintiff No.1 till the birth of plaintiff No.2 and thereafter absolutely in favour of plaintiff No.2. None of the defendants have produced any document nor led any evidence to prove their contention that they are the bonafide purchasers for value without notice. On the 28 other hand, the material on record discloses that even after knowing about the suit, the defendants got constructed the house which is wholly at their risk.
37. Learned counsel further submitted that since all the sale deeds said to have been executed in favour of defendant No.9 and other defendants, the plaintiffs are not required to seek any declaration or any other relief in respect of those sale deeds as the same is void ab initio and against the interest of minor-plaintiff No.2, in contravention of Section 8 of Hindu Minority and Guardianship Act, 1956.
38. Learned counsel submitted that recital in Ex.P1 makes the intention of the testator clear. Ex.P1 is to be read as a whole to know the intention of the testator. The properties were bequeathed in favour of plaintiff No.1 till the birth of plaintiff No.2. The moment plaintiff No.2 is born even plaintiff No.1 will not be entitled for any right. Learned counsel also submitted that in view of Section 113 of Indian Succession Act, bequeath can be in favour of unborn person. Section 112 of the said Act is not applicable to the facts of the present case.
29
39. Learned counsel submitted that initially defendants 2 to 10 filed the common written statement. No specific defence was taken with regard to the Will Ex.P1. Only after the death of defendant No.9, his legal representatives i.e., defendants 9(a) and (b) have filed their written statement denying Ex.P1, by filing the rejoinder. Both the plaintiffs were examined as PWs.1 and 2 in support of their contention. Nothing has been elicited from them during cross-examination. The trial Court committed an error in dismissing the suit of plaintiffs by holding that Ex.P1 is not proved. Before the First Appellate Court, since the plaintiffs adduced additional evidence, it could come to a proper conclusion and decreed the suit of the plaintiffs.
40. Learned counsel further submitted that the original of Ex.P1 i.e., Will dated 02.03.1945 could not be produced before the Court, as the same is lost. There are several beneficiaries under the Will in respect of various items of the properties. The contention of the plaintiffs that the original Will is lost is more probable. Moreover, none of the attesting witnesses or scribe are alive to examine before the trial Court. Ex.P1 is the copy of the registered Will, which has 30 got a presumptive value regarding its genuineness. PWs.3 and 4 have deposed regarding the signatures of the testator and the attesting witnesses. Moreover, Ex.P1 was admitted in evidence without any objection. Therefore, the appellant now cannot contend that Ex.P1 is not proved.
41. Learned counsel placed reliance on the decision in the case of Govindbhai Chhotabhai Patel and Others Vs Patel Ramanbhai Mathurbhai7, Gafarsab @ Sati Gafar Sab Vs Ameer Ahamed8, Dhanpat Vs Sheo Ram (Deceased) through Lrs. and Others9 to contend that the procedure contemplated to produce secondary evidence and prove the same in the absence of primary evidence is followed by the plaintiff. No objection was raised when Ex.P1 was admitted in evidence. Reliance was also placed on the judgment in the case of Hutchegowda Vs Chennigegowd10, in support of her contention that Ex.P1 has a presumptive value. Reliance was placed on the judgments in the case of Revanna Devaru Vs Dr. A.V. 7 2019 (2) KLJ 739 (SC) 8 ILR 2006 KAR 169 9 AIR 2020 SC 2666 10 AIR 1953 Mysore 49 31 Ranga Rao and other11 and P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Others12, to contend that certified copy of the registered Will would suffice, in view of the presumption under Section 114 of Evidence Act and Section 60 of Registration Act.
42. Learned counsel further submitted that execution of Ex.P1 is not in serious dispute. Under such circumstances, the First Appellate Court was right in decreeing the suit of the plaintiffs. It is only defendant No.9(a) who is challenging the judgment and decree passed by the First Appellate Court. The appellant purchased the properties during the pendency of the suit, knowing fully well about the claim of the plaintiff. If at all, any developments were undertaken, it is at his risk. The appellant who is examined as DW1 during cross- examination, categorically admitted that he purchased the property during the pendency of the suit and knowing fully well the claim of the plaintiffs.
43. Learned counsel placed reliance on the decision in Chetti Balakrishnamma @ Balakrishna Vs Chetti 11 AIR 1952 Mysore 119 12 1995 Supp (2) SCC 664 32 Chandrasekhar Rao and Others13, Bajrang Factory Ltd., and Another Vs University of Calcutta and Others14, Gnanambal Ammal vs T. Raju Ayyar And Others15, and Sivasankar V.K. v. V.K. Sivan and Others16, in support of her contention that proof of Will and appreciation of its recitals is very well settled by these judgments. She also placed reliance on Konahally Vasanthappa Vs Konahally Channabasappa and others17, in support of her contention that bequest in favour of unborn plaintiff No.2 is valid.
44. Learned counsel contended that even though the sale by Subbamma during the minority of plaintiff No.1 is voidable, it is void ab initio against plaintiff No.2. She placed reliance on the decision in the case of Sri Nanjappa Vs Sri Doddaiah and another18, and in the case of Murugan and Others Vs Kesava Gounder (Dead) Through Legal Representatives and Others19 to contend that no right is acquired by defendant No.9 as even if the suit by plaintiff No.1 is to be held as barred by limitation, the suit by plaintiff 13 AIR 1991 Orissa 332 14 (2007) 7 SCC 183 15 AIR 1951 SC 103 16 (2019) 11 SCC 809 17 AIR 1962 Mysore 98 18 ILR 2009 Kar 2294 19 (2019) 20 SCC 633 33 No.2 is well within time and he is entitled to ignore all those sale deeds which are void ab initio.
45. The appeal was admitted vide order dated 29.09.2010 and the following substantial questions of law were formulated:
"1. Whether the lower appellate court was justified in holding that the Will, which was set up by the defendants, could be held to have been proved in variance with Section 63 of the Indian Evidence Act? Whether there was material available to hold that it could be proved in variance with Section 63 of the Indian Evidence Act?
2. Whether the lower appellate court was justified in holding that the suit was not barred by limitation, contrary to article 58 of the Limitation Act, 1963?"
46. Even though three additional substantial questions of law were framed vide order dated 20.01.2020, during the course of arguments, both the learned counsel submitted in unison that those additional substantial questions of law may not arise for consideration. Hence, vide order dated 34 07.11.2022, the said additional substantial questions of law is ordered to be deleted.
47. Learned counsel for the appellant filed IA.1 of 2019 praying to frame additional substantials question of law. Learned counsel for the respondents submitted no objection for allowing the application. Accordingly, the application was allowed and the following additional substantial questions of law were formulated vide order dated 07.11.2022.
"1. Whether the suit for declaration of ownership and for possession is maintainable without seeking to set aside the various sale deeds that are executed in respect of the suit schedule properties?
2. Whether the suit is liable to be dismissed for non joinder of necessary parties?"
48. It is the specific contention of the plaintiffs before the trial Court that the schedule properties are the self- acquired properties of late Venkannaiah. Plaintiff No.1 is his grandson. It is their further contention that Venkannaiah executed a registered Will dated 02.03.1945, the certified copy of which is produced as per Ex.P1. As per Ex.P1, Venkannaiah bequeathed his properties, including the 35 schedule properties, in favour of his various legal representatives including plaintiff No.1. It is stated that the schedule properties were bequeathed in favour of plaintiff No.1 and if, in case, he begets a son, he would get absolute interest over the said properties. Defendant No.1 being the mother of plaintiff No.1 without any right, title or interest over the schedule properties, alienated the same in favour of various persons bit by bit. Therefore, the said alienations are not binding on the plaintiffs. Accordingly, the plaintiffs prayed for declaration of their title and also possession of the schedule properties from defendants 2 to 12.
49. The averments made in the plaint by the plaintiffs either about the Will that is executed by Venkannaiah, alienations made by defendant No.1, the capacity under which defendant Nos.2 to 12 are in possession of the properties, the reason for which the plaintiffs are contending that the alienation made by defendant No.1, are not binding on them; are all very bald and lacks material particulars. The plaint do not contain the details of even a single sale deed executed by defendant No.1 in favour of any of the defendants with its date and other particulars. Strangely item No.1 in the 36 schedule appended to the plaint refers to the dry land bearing Sy.No.31 situated at Attur Village, Yelahanka Hobli, but its extent was never mentioned in the plaint initially. Only by amending the plaint, extent of item No.1 is mentioned as 16 acre 13 guntas. It is stated that items Nos.2 to 12 are various portions of item No.1 which are in possession of different defendants. It is stated that items 2, 3, 6, 7, 8 and 10 each measures 1 acre of land and are possessed by defendants 2, 3, 6, 7, 8 and 9 respectively. Similarly items 4, 5, 11 and 12 each measure 2 acres and possessed by defendants 4, 5, 6 and 11 respectively. There is no mention as to who is in possession of 2 acres of land described in item No.9.
50. The plaintiffs filed the suit for declaration of their title and for possession of schedule properties. Plaintiffs contend that the cause of action for the suit arose about 7 years earlier to filing of suit, while plaintiff No.1 attained majority and also from the date of knowledge i.e., when he came to know of all the things during first week of February, 1968. The plaint do not contain the date of birth of plaintiff No.1 nor it states as to what was the information got by 37 plaintiff No.1 to treat it as a cause of action or when and how such information was gathered by him. When these particulars are lacking in the pleadings, practically it is impossible to determine the period of limitation as pleaded by the plaintiffs.
51. According to the plaintiffs, Venkanaiah executed the Will as per Ex.P1 on 02.03.1945, bequeathing item No.1 in the schedule in favour of plaintiff No.1 and in case he begets a son, the said properties to devolve on the plaintiff No.1 and his son absolutely. Unfortunately, the plaint do not contain any particulars regarding the age of testator Venkannaiah, his mental and physical condition at the time of executing the Will and even his date of death. Strangely, the plaintiffs have not examined any of the witnesses to speak about execution of the Will to prove the same before the trial Court. Only when the trial Court dismissed the suit by holding that the Will put forth by plaintiffs is not proved in accordance with law by examining the attesting witness/witnesses, before the First Appellate Court, an application was filed seeking permission to lead further evidence and examined PWs.3 to 5 and got marked Ex.P27. Therefore, it is clear that the plaint 38 filed by the plaintiffs lacks material particulars and there was no proof of the Will in accordance with law before the Trial Court, which they are trying to put forth at the subsequent point of time.
52. It is stated that Venkannaiah died about 15 years earlier to filing of the suit and defendant No.1 was managing the schedule properties, since plaintiff No.1 was a minor. It is specifically stated that when the suit was filed in the year 1968, the plaintiff had attained the age of majority about 7 years back and he was aged 28 years. But when plaintiff No.1 was examined as PW1, he has specifically stated that he retired from the service in the year 1996. The evidence led by PW1 disclose that he was born in and around 1938. Therefore, he must have attained majority in the year 1956 and he must have aged 30 years when the suit was filed. Even according to him, he was aged 28 years when the suit was filed.
53. Plaintiffs filed the suit seeking declaration of their title by referring to Article 58 of the Limitation Act. Under Article 58 of the Limitation Act, any declaration could be 39 obtained within three years from the date on which the right to sue, first accrues. The plaintiffs have never stated anything as to when the right to sue first accrued in their favour to seek the declaration. The plaintiffs have also not stated as to why they are seeking declaration of their title, since there is no averments in the pleadings as to any of the defendants denying their title over the properties and reason for such denial.
54. There is bald allegation made in the plaint that defendant No.1 sold item No.1 bit by bit in favour of other defendants. There is no further details about such alienations in favour of any of the defendants in particular. At the time of leading the evidence, PW1 stated that defendant No.1 has executed the registered sale deed in favour of several other persons and that the defendants are in possession and enjoyment of the schedule properties. But PW1 pleads ignorance about the dates on which defendant No.1 executed such sale deeds in favour of any of the defendants or any other person. When the plaintiffs themselves are not sure as to when defendant No.1 alienated the properties and also the fact that in whose favor such sale deeds are executed, the 40 plaintiffs cannot reckon the period of limitation for the purpose of filing the suit even under Article 58 of the Limitation Act. When it is the specific contention of the plaintiffs that defendant No.1, being the minor guardian of plaintiff No.1, alienated item No.1 of the schedule in favour of the defendants, the Article that would apply to reckon the period of limitation is Article 60 of the Limitation Act and the period of limitation is three years, when the ward attains majority. Therefore, plaintiff No.1 should have approached the Court seeking to set aside the transfer of properties made by his guardian mother, within three years from the date on which he attained majority.
55. As noted earlier, the plaint is silent about the date of birth of plaintiff No.1 or the date on which he attained majority. When on the materials that are available on record it could be safely concluded that he must have attained the majority in or about 1956, the cause of action to seek setting aside the transfer of properties made by his guardian mother began to run from the said date and within three years i.e., in or about 1959, the suit seeking setting aside the transfer of properties made by defendant No.1 should have been 41 instituted. But the suit OS No.78 of 1968 was filed on 14.02.1968 i.e., about 9 years after plaintiff No.1 attaining majority. Even if these calculations are to be ignored and the plaint averments, as it is, is to be taken into consideration, the cause of action had arisen about 7 years earlier to filing of the suit. However, it is pleaded that the suit is within time from the date of knowledge as plaintiff No.1 came to know of all these things in or about first week of February 1968. This pleading is very bald to reckon the cause of action for the suit. However, Article 60 of the Limitation Act prescribes the period of limitation as three years and the period of three years is to be reckoned from the date on which the ward attains majority. The date of knowledge of any of the things stated in the plaint would not give extension of the period under Article 60 of the Limitation Act.
56. Section 6 of the Limitation Act refers to the legal disability to institute a suit etc. at the time from which the prescribed period is to be reckoned. Minority is one such legal disability recognized under law and it ceases upon attaining the age of majority. But Section 8 of the Limitation Act makes it clear that nothing contained in Section 6 shall be 42 deemed to extend, for more than three years from the cessation of the disability, the period of limitation for any suit. Section 9 of the Act deals with continuous running of time where once the time has begun to run. No subsequent disability or inability to institute a suit stops such running of time which has already began to run.
57. In Utha Moidu Haji (supra), the Hon'ble Apex Court considered Sections 6 and 8, Articles 60 and 65 of Limitation Act and held in paras 5 and 28 as under:
"5. The learned trial Judge opined that Article 60 of the Schedule appended to the Limitation Act, 1963 being applicable, the suit was barred by limitation. The plaintiff filed an appeal thereagainst. The appellate court was of the opinion that the plaintiff could have instituted the suit within a period of 12 years from the date of execution of the sale deed i.e. till the year 1986, and thus, the suit was not barred by limitation. The appellant herein carried the matter in second appeal before the High Court. By reason of the impugned judgment, a learned Single Judge of the Kerala High Court although opined that in terms of Sections 6 and 8 of the Limitation Act, 1963, the suit was required to be filed by the 43 respondent-plaintiffs within 3 years from the date of his attaining majority or 12 years from the date of execution of the sale deed, but dismissed the second appeal of the appellant herein inter alia on the premise that he as also his predecessor-in- interest having become co-owner in the suit property with the respondent-plaintiffs, the provisions of Article 65 of the Limitation Act, 1963 would be applicable. Having held so, it was further opined that as Defendant 1-appellant had failed to plead and prove "ouster" as against the plaintiff, the suit was bound to fail.
6 to 27. xxx xxx xxx "28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court."
(Emphasis supplied)
58. In Bailochan Karan (supra), the Hon'ble Apex Court dealing with the period of limitation available for the 44 plaintiffs to challenge the dispossession held in para 6 as under:
"6. In the present case, the maximum period of limitation available to the appellant was only three years from the date of his attaining majority, in other words, cessation of the disability. This position has been considered by this Court in Darshan Singh v. Gurdev Singh. It is clearly laid down that Section 8 is a proviso to Section 6 or 7. A combined effect of Sections 6 and 8 read with the third column of the appropriate article would be that a person under disability may sue after cessation of disability within the same period as would otherwise be allowed from the time specified therefore in the third column of the Schedule. But such extended period would not be beyond three years from the date of the cessation of the disability. Consequently, the right to file a suit of the appellant got expired at the end of three years from the date of his attaining majority, whether it was 1963 or 1966. In this case, it is unnecessary for us to consider whether the appellant attained majority in 1966 on completion of 21 years or in 1963 on completion of 18 years, as it is not relevant for the purposes of this case. The 45 plaintiffs, therefore, perfected their title by virtue of Section 27 of the Limitation Act".
(Emphasis supplied) In the present case, if the period of limitation is reckoned as stated above, the period of 3 years have lapsed long back. Therefore, viewed from any angle, the suit filed by the plaintiffs is barred by limitation.
59. An attempt was made by the learned counsel for the plaintiffs that even if the suit filed by plaintiff No.1 is held to be barred by limitation, the suit filed by plaintiff No.2 was well within time, since he was a minor who was aged 8 months when the suit was filed. In this regard, the recitals in the Will Ex.P1 was highlighted by both the learned counsels. Ex.P1 refers to bequeathing of schedule 'B' property in the Will in favour of plaintiff No.1. If, in case, he begets a son, he would get absolute interest over the said properties. If in case, he does not begets a son, then the properties would devolve on the beneficiaries who are entitled for 'A' and 'C' schedule properties. The Will does not refer to a life interest in favour of plaintiff No.1 only till the birth of plaintiff No.2. Even if the contention of the plaintiffs that plaintiff No.1 had 46 life interest over item No.1 of the schedule properties till the birth of Plaintiff No.2 and since he begotten plaintiff No.2, it is plaintiff No.2 who acquires absolute right over the properties upon his birth is to be accepted, plaintiff No.2 was born on 16.07.1967 as per Ex.P25 and Ex.26 produced by the plaintiffs. But by that time, item No.1 of the schedule was already sold by defendant No.1 under various registered sale deeds in favour of third parties and they came in possession of the same. Neither defendant No.1 who is the executant of the sale deed, nor plaintiff No.1 who was said to be having the life interest over the same, have chosen to seek cancellation of any of those sale deeds within the time prescribed under law. Therefore, for all practical purposes, item No.1 of the schedule properties had already changed hands under the registered sale deeds. Even if the contention of the learned counsel for the plaintiffs is to be accepted that the suit filed by plaintiff No.2 was within time, admittedly, he had not filed any suit either to seek cancellation of the registered sale deeds executed by defendant No.1 nor he had sought for a declaration that the said sale deeds are not binding on him.
47
60. According to the plaintiffs, defendant No.1 being the natural guardian of plaintiff No.1 had no authority to alienate the schedule properties. In spite of that, she sold item No.1 of the schedule bit by bit in favour of several persons. As I have already stated, the plaint lack particulars as to when defendant No.1 sold which properties and in whose favour. Interestingly, plaintiffs have not taken the pain of producing even the copies of such sale deeds executed by defendant No.1. Learned counsel for the plaintiffs contended that since such sale deeds are void-ab-initio, there is no necessity to seek either cancellation of sale deeds or declaration that the same are not binding on the plaintiffs. Section 8 of the Hindu Minority and Guardianship act, deals with powers of natural guardian. Sub Section (1) of the Act empowers the natural guardian of a Hindu minor to do all acts that may be necessary or reasonable and proper for the benefit of the minor. Sub-Section (2) of the Act bars the natural guardian who do certain acts without previous permission of the Court. One such act prohibited under law is, sale of the immovable property of the minor. Sub-Section (3) specifically states that any disposal of immovable property 48 by the natural guardian in contravention of Sub-sections (1) or (2) is voidable at the instance of the minor or by any person claiming under him. This provision of law makes the position very clear that any of the alienations made by defendant No.1 without permission of the Court on behalf of minor plaintiff No.1 cannot be termed as ab-initio-void, but it is only voidable at the instance of the minor. If plaintiffs 1 or 2 seek to avoid the alienations made by defendant No.1 in contravention of Section 8 of Hindu Minority and Guardianship Act, they have to seek the legal recourse to set aside the registered sale deeds executed by defendant No.1. Admittedly, no such relief is claimed by the plaintiffs, for the reasons best known to them.
61. In Vishwambar (supra), the Hon'ble Apex Court dealt with a similar situation, but where a prayer in the plaint was sought to set aside the sale deeds executed by the mother guardian, in paragraphs 9 and 10, it is held as under:
"9. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-guardian Laxmibai were 49 void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis, the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14-11-1967 and 24-10-1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial court as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said alienations. The question is, in such circumstances, are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the court, transfer by sale any part of the immoveable property of the minor. In sub-section (3) of the said section, it is specifically provided that any disposal of immoveable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any 50 person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability, realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, Plaintiff 2 Digamber attained majority on 5-8-1975 and Vishwambhar, Plaintiff 1 attained majority on 20- 7-1978. Though the suit was filed on 30-11-1980 the prayer seeking setting aside of the sale deeds was made in December 1985. Article 60 of the Limitation Act prescribes a period of three years 51 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 the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar, it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for 52 seeking such a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff.
10. From the averments of the plaint, it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance, the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that".
(Emphasis supplied) In the present case, the situation is still worse as the plaintiffs never sought for setting aside the sale deeds executed by defendant No.1, till today.
53
62. In Murugan (supra), the Hon'ble Apex Court dealt with a situation where the father of a minor was given a life-interest and after his death, the absolute interest was created in favour of the minor and referred to Section 119 of the Indian Succession Act regarding date of vesting of legacy when possession was postponed. The Court had also referred to the sale deeds executed by the father for himself, as well as, on behalf of his minor son without obtaining permission from the Court. In view of Sections 8 and 8(2) of the Hindu Minority and Guardianship Act and the words 'voidable sale deed', by referring to the meaning of the word 'voidable' as defined in Black's Law Dictionary, it is held in paragraphs 14 and 24 as under:
"14. This Court time and again has considered the cases of alienation by natural guardian in contravention of Section 8 and Section 8(2) of the 1956 Act. This Court held that sale deed in violation of Sections 8(1) and 8(2) is a voidable sale deed. Voidable has been defined in Black's Law Dictionary, 10th Edn. as under:
"Valid until annulled; esp., (of a contract) capable of being affirmed or rejected at the option of one of the parties. This term describes a valid act that may be voided 54 rather than an invalid act that may be ratified."
15 to 23. xxx xxx xxx
24. We have noticed above that sub-section (3) of Section 8 refers to a disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) as voidable. When a registered sale deed is voidable, it is valid till it is avoided in accordance with law. The rights conferred by a registered sale deed are good enough against the whole world and the sale can be avoided in case the property sold is of a minor by a natural guardian at the instance of the minor or any person claiming under him. A document which is voidable has to be actually set aside before taking its legal effect...."
(Emphasis supplied)
63. In Suhrid Singh (supra), the Hon'ble Apex Court made the position of law very clear. Paragraphs 7 and 8 of the decision read as under:
"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not 55 binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B'
-- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non- binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.56
8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7".
(Emphasis supplied)
64. In the case on hand, the plaintiffs never sought either for setting aside any of the sale deeds which are admittedly executed by defendant No.1 or sought for declaration that the same are not binding on the plaintiffs. When the sale deeds executed by defendant No.1 could be held to be viodable at the option of plaintiffs, unless the same were held as invalid, that would bind them.
65. According to plaintiffs, the testator Venkannaiah executed the Will dated 02.03.1945 bequeathing item No.1 of the plaint schedule in their favour creating life interest in favour of plaintiff No.1 and absolute interest in favour of plaintiff No.2. As I have already noted, the plaint lacks 57 material particulars regarding requirement of law to prove the Will in question before the trial Court. None of the attesting witnesses were examined in spite of Section 68 of the Indian Evidence Act. However, plaintiff No.1 when he was examined as PW1 contended that the original Will is lost and the same could not be found even after due search. Therefore, he produced the certified copy of the Will and got it marked as per ExP1. During cross-examination, the witness has given a candid admission that the original Will executed by Venkannaiah was in the possession of one of the beneficiaries, viz. Smt. Venkatalakshmamma, who is the niece of Venkannaiah. This admission of PW1 during cross- examination goes a long way in proving the Will in question.
66. Section 64 of the Indian Evidence Act requires production of primary evidence in proof of the document. The plaintiffs have not made any effort to call upon the said Smt. Venkatalakshmamma to produce the original Will, which was in her possession. No efforts were made to lay a foundation for producing the secondary evidence i.e., copy of the Will. Section 65 of the Indian Evidence Act refers to the circumstances under which the secondary evidence relating to 58 documents may be given. Even if the contention of the plaintiffs that the original Will is lost is to be accepted, they have to make out a ground as required under clause-C of Section 65 of Indian Evidence Act. There is no such pleadings or proof as required under clause-C of Section 65 of the Act to permit production of the secondary evidence i.e., the certified copy of the Will in proof of the same.
67. It is the further contention of PW1 during his evidence that neither the scribe nor the attesting witnesses are alive to be examined in proof of attestation of the Will. Therefore, before the First Appellate Court, the plaintiffs examined PW5-Srikantaiah son of Patel Machappa. It is stated that Patel Machappa was one of the attesting witness to the Will Ex.P1. This witness has filed affidavit in lieu of examination-in-chief and stated that his father Patel Machappa is no more. He refers to the name of Patel Machappa, found in Ex.P1. Section 69 of the Indian Evidence Act deals with the proof of a document required by law to be attested and when no such attesting witness can be found etc. Under such circumstances, the document could be proved by placing materials that attestation of one attesting witness at 59 least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. None of these requirements were satisfied even while examining PW5. During cross-examination, witness pleaded his ignorance about the presence of the signature of his father on the original Will.
68. In Gafarsab @ Sati Gafar Sab (supra), this Court, considering adducing of secondary evidence, held in paragraph 6 as under:
"6. A party to the proceedings is not expected to file any application requesting the Court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the Court is satisfied from such evidence that a case is made out for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Act. However, when such permission is granted to the party by the Court to lead secondary evidence, it is open to the opposite party to object to the production of such secondary evidence, in which event the Court has to mark the document 60 subject to the objections and decide the objections at the time of final disposal of the suit on merits....."
69. The plaintiffs have examined PW4- Venkataramaiah who is the son of Ramakrishnaiah who is one of the beneficiaries under the Will said to have been executed by Venkanaiah. The witness stated that he had never seen the original Will nor he knows the details of the properties bequeathed under the said Will. He pleaded his ignorance as to who are the attesting witnesses to the Will and as to whether the original Will is available or not. Therefore, the evidence of this witness is of no avail to the plaintiffs to prove the Will in question.
70. PW3-K Chandrappa was examined before the First Appellate Court. He was working as senior Sub-Registrar, Bengaluru North. Witness stated that Ex.P1 was issued from his office. He produced the thumb impression book maintained in his office for the year 1944-45 and stated that in page No.80 the thumb impression and signature of one Venkannaiah is found in respect of the Will No.37 of 1944-45. Witness stated about the procedure for presentation of the 61 Will and the requirement of presence of the testator before the registering authority. However, during cross-examination, witness pleaded his ignorance about presentation of the original Will by testator Venkannaiah. Witness stated that he deposed before the Court on the basis of rules and procedure that are adopted in the office of Sub-Registrar and not on the basis of the records.
71. PWs.1 and 2 who were aged 64 and 33 years during 2000 when they were examined before the Court, could not say anything about execution of the Will by Venkannaiah. When there is no proper pleadings nor evidence as required under law is placed before the Court in proof of the Will said to have been executed by Venkannaiah, it cannot be held that the plaintiffs have proved Ex.P1. The additional evidence led by plaintiffs before the First Appellate Court is also not sufficient to prove the Will in question.
72. In Govindbhai Chhotabhai Patel (supra), the Hon'ble Apex Court referred to a gift deed which is a compulsorily attestable document in view of Section 123 of Transfer of Property Act, so also, referred Sections 63 and 68 62 of the Indian Evidence Act and in paragraph 24 of the judgment held as under:
"24) A gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882. Similar is the provision in respect of execution of a Will which is required to be attested in terms of Section 63 of the Indian Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of Will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with provisions of the Indian Registration Act, 1908, unless the execution is specifically denied".
73. In Dhanpat (supra), the Hon'ble Apex Court had an occasion to deal with a similar situation and held in paragraphs 15 and 17 as under:
"15. In a judgment reported as M. Ehtisham Ali for himself and then place of M. Sakhawat Ali, since deacesed v. Jamna Prasad, since deacesed and Ors., the appellants-plaintiffs filed a suit on the basis of a sale deed. During trial, the stand of the plaintiffs was that the original sale deed was 63 lost but since it was registered, secondary evidence by way of a certified copy prepared by the office of the Registrar was produced. It was not disputed that the copy produced was not the correct copy of the registered document. The suit was dismissed for the reason that the plaintiffs have not succeeded in satisfactorily establishing the loss of the original sale deed. The Court held as under :
"It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in addition he was not cross-examined, this result would follow all the more. There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the registrar, before registering, to examine the grantor, or someone whom he is satisfied is the proper representative of the grantor, before he allows the deed to be registered."
17. Even though, the aforesaid judgment is in respect of the loss of a sale deed, the said principle would be applicable in respect of a will as well, subject to the proof of the will in terms of Section 68 of the Evidence Act. In the present case as well, the will was in possession of the beneficiary and was stated to be lost. The will is 64 dated 30-4-1980 whereas the testator died on 15- 1-1982. There is no cross-examination of any of the witnesses of the defendants in respect of loss of original will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the will though it was alleged to be the result of fraud and misrepresentation. The execution of the will was not disputed by the plaintiff but only proof of the will was the subject-matter in the suit. Therefore, once the evidence of the defendants is that the original will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence."
(Emphasis supplied)
74. In Bajrang Factory Ltd., (supra), the Hon'ble Apex Court held that in the matter of interpretation of the Will, the Court is required to ascertain the dominant intention of the testator on a plain reading of the Will and it will also be the duty of the Court to implement such intention of the testator.
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75. In Gnanambal Ammal (supra), the Hon'ble Apex Court, construing a Will, in paragraphs 10 and 11 held as under:
"10. The cardinal maxim to be observed by courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy (1), "the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, 'his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure 'The court is entitled to put itself into the testator's armchair' ...... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the court is 66 to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions...... In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life."
11. A question is sometimes raised as to whether in construing a will the court should lean against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; "but it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Lord Justice Romer observed in Re Edwards; Jones v. Jones (1), "it cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning."
(Emphasis supplied) 67
76. In P P K Gopalan Nambiar (supra), the Hon'ble Apex Court considered a situation where the validity of the Will was questioned and held in paragraphs 4 and 5 as under:
"4. On appeal, the Subordinate Judge has given various reasons to accept the validity of the will. One of the reasons is that it is a registered will and the endorsement by the Registrar would show that the testator was in a sound disposing state of mind and that it was executed out of her free will and that, therefore, the discrepancy in the evidence of DW 2, an attestor does not vitiate the validity of the will. On appeal, the learned Single Judge without going into the evidence, has stated in one sentence that he agrees with the reasoning of the trial court and does not agree with the reasoning of the appellate court. We are at a loss to appreciate the view taken by the learned Judge. The High Court also stated that the whole of the estate given to the son under the will would itself generate suspicious circumstance. It is difficult to accept the reasoning of the learned Judge. Admittedly, the will was executed and registered on 1-11-1955 and she died 8 years thereafter in the year 1963. When the appellant had propounded the will in his written statement, nothing prevented either the respondent or any of the contesting defendants to file a rejoinder i.e. 68 additional written statement with leave of the court under Order 8, Rule 9 pleading the invalidity of the will propounded by the appellant. Nothing has been stated in the pleadings. Even in the evidence when the appellant was examined as DW 1 and his attestor as DW 2, nothing was stated with regard to the alleged pressure said to have been brought about by the appellant to execute the will. In the cross-examination by the first respondent, no attempt was even made to doubt the correctness of the will.
5. Under these circumstances, the suspicion which excited the mind of the District Munsif is without any basis and he picked them from his hat without fact-foundation. The Subordinate Judge had rightly considered all the circumstances and upheld the will. The High Court, without examining the evidence, by merely extracting legal position set out by various decisions of this Court has upset the finding of the fact recorded by the Subordinate Judge in one sentence. It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind."
(Emphasis supplied) 69
77. Even though the learned counsel for the plaintiffs has placed reliance on this decision, the facts of the case before the Hon'ble Apex Court was entirely different. When the Will was produced, there was no denial of the same and even in the cross-examination, no attempt was made to doubt its genuineness. But in the present case, in the common written statement filed by defendants 2 to 10, they have denied the execution of the Will and the plaintiffs were put to strict proof of the same. Later, the legal representatives of defendant No.9 who is the contesting defendant, filed the detailed written statement denying execution of the Will. When PWs.1 to 5 were examined, the witnesses were cross- examined at length regarding execution of the Will, loss of original Will etc. Under such circumstances, the decision relied upon by the learned counsel for the respondents is not applicable to the facts of the case. Only on the ground that the Will in question is a registered document and its certified copy is produced and got marked without objection by the other side, it will not dispense with the proof of the same in accordance with law.
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78. It is the contention of the plaintiffs that under Ex.P1 the testator bequeathed item No.1 of the plaint schedule in favour of plaintiff No.1 during his lifetime and in favour of plaintiff No.2 absolutely. The Will was executed on 02.03.1945. Admittedly, plaintiff No.2 was not born nor was he in the womb. Therefore, it is the contention of the learned counsel for the defendants that such bequeath was bad under law. Section 112 of the Indian Succession Act, refers to the bequest to a person who was not in existence at the time of testator's death and such bequeath is described as void. However, the exception appended to Section 112 refers to the bequest to a specified individual, but his possession of the property was deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description was alive at the time of death of testator, the same can be considered as a valid bequest.
79. Illustration-(ii) refers to a case where A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon B's 71 death, the legacy goes to C's son. This illustration could be made applicable to the facts of the case as contended by the plaintiffs even though it is already held that the Will is not proved in accordance with law. The bequest made by the testator was made in favour of plaintiff No.1 who is a minor at the time of the death of the testator. Even though plaintiff No.2 in whose favour the property is said to have been bequeathed absolutely was not in existence, at the time of death of testator, the possession of item No.1 of the schedule was deferred by reason of prior bequest in favour of plaintiff No.1. Such bequest is recognised under Section 113 of Indian Succession Act, which refers to the bequest to a person not in existence at testator's death subject to prior bequest. Illustration-(ii) to this Section refers to a situation where a fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has daughters some of whom were not in existence at the testator's death. The bequest to A's daughters comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A's daughters is valid.
72
80. In Chetti Balakrishnamma (supra), the High Court of Orissa formulated, in all, 4 questions for consideration and the second question being "can the Will be said to be invalid on the ground that it was in favour of a person who was not born on the date of death of the testator?" and it was answered in paragraph 9 as under:
"9. So far as the second question is concerned, it depends upon the provisions contained in Ss. 111 to 113 of the Succession Act. Under the old Hindu Law, a bequest in favour of a person not in existence at the time of testator's death was being considered to be invalid. But in view of the Hindu Disposition of Property Act, 1916, as well as the Succession Act, the said position no longer remains the correct position of law. Under S. 111 of the Succession Act, a bequest made to a class of persons described becomes valid only if the persons in whose favour the property is bequeathed are alive at the time of death of the testator. But there is an exception to said S. 111. Under Section 112, where a bequest is made to a person and that person is not in existence at the time of testator's death, then the bequest becomes void. But there is an exception to the said provision also. Where A bequeaths Rs. 1,000/- to the eldest son of C to be 73 paid to him after the death of B and on the death of the testator A, C had no son, but a son was born to him during the lifetime of B and was alive at B's death then the said son of C would be entitled to the sum of Rs. 1,000/- that had been bequeathed by A. This illustration fully applies to the facts of the present case. Under the will, Venkataswamy bequeathed all his lands in village Matiapalli in favour of defendant No. 8 and so far as the rest of the properties is concerned, his wife Ammayamma was given the right to enjoy during her lifetime without any right of alienation and after death of Ammayamma half of the property would go to defendant No. 6 and after excluding the said property, the sons of Krishnamurty would be entitled to 10 annas share in the remaining property and daughters of the eldest son would be entitled to six annas share from the property in question. This being the disposition, even though the plaintiff was not born on the date of death of the testator Venkataswamy, but was admittedly born during the lifetime of Venkataswamy's wife Ammayamma, the plaintiff having been born in 1961 and Ammayamma having died on 21-8- 1964. On death of Ammayamma the property as per the will and to the extent indicated therein devolved upon the plaintiff and the will cannot be said to be invalid being contrary to any of the 74 provisions of the Succession Act. The contention of Mr. Ramdas, the learned counsel for the appellant, to the contrary in this regard must be rejected and it must be held that in the facts and circumstances of the present case, the will in question though was in favour of the plaintiff and plaintiff was not born at the time of death of the testator, yet it was valid and binding."
(Emphasis supplied)
81. In Konahally Vasanthappa (supra), this Court, considered a similar situation where the grandfather of plaintiff No.1 created an interest in his favour who had not been born at the time of such transfer. The validity of such transfer in favour of a person who was not in existence was questioned and the Court, referring to Section 20 of the Transfer of Property Act, held in paragraphs 6 and 12 as under:
"6. On the facts established in this case what emerges is this. The maternal grand-father of plaintiff 1 and defendant 2 made a transfer of property under Exhibit B-2. That transfer purported to be a transfer in the first instance in favour of defendant 2. But the maternal grand-75
father did not merely content himself with making a transfer of his property in favour of defendant
2. What he did was to proceed further to create an interest for the benefit of plaintiff 1 and that, in my opinion, is the meaning to be given to the disposition contained in the second part of Exhibit B-2. It is true that plaintiff 1 was not born and was not in existence on the date of Exhibit B-2. But the mere fact that plaintiff 1 had not been born then, was no impediment in the creation of an interest in his favour, provided, the creation of such interest was on the transfer of property to someone else. In that situation the relevant provision of the Transfer of Property Act Which made the creation of interest in favour of plaintiff 1 permissible, clothing plaintiff 1 with the right to claim that interest is, Section 20 of the Transfer of Property Act. That section reads:
20. "Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth."
Now, in this case all the ingredients envisaged by this section are established. There was a transfer of property by the maternal grand- father of plaintiff 1 and that transfer was in favour 76 of defendant 2. That maternal grand-father also created an interest for the benefit of a person who was not then living and that person is plaintiff 1. Upon his birth, plaintiff 1 did, as provided by S. 20 of the Transfer of Property Act, acquire a vested interest, since from Exhibit) B-2 no contrary intention appears. What is of even greater importance is that Exhibit B-2 makes it clear that plaintiff 1 became entitled to the enjoyment of the interest created under it immediately on his birth.
7 to 11. xxx xxx xxx
12. In my opinion, the creation of the interest in favour of plaintiff 1 who had not Been born at the time of Exhibit B-2 was a valid disposition the creation of which was permissible under the provisions of Section 20 of the Transfer of Property Act. Under the terms of Exhibit B-2, the moment plaintiff 1 was born, he became entitled to a moiety of the property of his grandfather, and it was that moiety which plaintiff 1 sought to recover possession of in the suit which he brought".
(Emphasis supplied) 77
82. In view of the above, the contention of the learned counsel for the defendant that the properties could not have been bequeathed in favour of plaintiff No.2 who is not in existence at the time of death of the testator cannot be accepted.
83. Learned counsel for the defendants contended that defendant No.9 is a bonafide purchaser of the schedule properties under various sale deeds, without notice of the Will said to have been executed by Venkannaiah. After purchase of the properties, the very nature of the properties is changed and a layout is formed by getting necessary sanction. Hundreds of houses were built by subsequent purchasers who are in actual possession and enjoyment of the properties. In support of such contention, the defendants produced the photographs as per Exs.D1 to 7. When defendant No.9 purchased some of the schedule properties, developed it by forming layout and sites, during the pendancy of the suit, it cannot be concluded that he is the bonafide purchaser for value without notice of the Will in question. But the photographs supports the contention of the contesting defendants regarding change of nature of the land, 78 construction of various houses and other buildings etc., over the schedule properties.
84. Learned counsel for the plaintiffs contended that even though the nature of the land is changed, layout is formed, several houses were constructed by various persons, all these developments were hit by principle of lis pendens as provided under Section 52 of the Transfer of Property Act. As per Section 52 of the Act, the property involved in the litigation cannot be transferred or alienated during the pendency of the suit, except under the authority of the Court and on such terms as the Court may impose.
85. The discussions held above disclose that the plaintiffs, especially, plaintiff No.1 slept over his rights even after cessation of his legal disability and after attaining majority, by not filing a suit within the period of limitation. Admittedly, before filing of the suit, the schedule properties were sold by defendant No.1 being the natural guardian of plaintiff No.1 under various registered sale deeds. Regarding object of the doctrine of lis pendens, the Hon'ble Apex Court in Rajender Singh (supra) held in paragraphs 15 to 19 as under:
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"15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject-matter of litigation from the ambit of the Court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject-
matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.
16. It is very difficult to view the act of taking illegal possession of immovable property or continuance of wrongful possession, even if the wrongdoer be a party to the pending suit, as a "dealing with" the property otherwise than by its transfer so as to be covered by Section 52 of the Transfer of Property Act. The prohibition which prevents the immovable property being "transferred or otherwise dealt with" by a party is 80 apparently directed against some action which would have an immediate effect, similar to or comparable with that of transfer, but for the principle of lis pendens. Taking of illegal possession or its continuance neither resemble nor are comparable to a transfer. They are one sided wrongful acts and not bilateral transactions of a kind which ordinarily constitute "deals" or dealings with property (e.g. contracts to sell). They cannot confer immediate rights on the possessor. Continued illegal possession ripens into a legally enforceable right only after the prescribed period of time has elapsed. It matures into a right due to inaction and not due to the action of the injured party which can approach a Court of appropriate jurisdiction for redress by a suit to regain possession. The relief against the wrong done must be sought within the time prescribed. This is the only mode of redress provided by law for such cases. Section 52 of the Transfer of Property Act was not meant to serve, indirectly, as a provision or a substitute for a provision of the Limitation Act to exclude time. Such a provision could and would have been there in the Limitation Act, where it would appropriately belong, if the policy behind the law was to have such a provision.81
17. The policy underlying statutes of limitation, spoken of as statutes of "repose", or of "peace" has been thus stated in Halsbury's Laws of England Vol. 24, p. 181 (para 330):
"330. Policy of Limitation Acts.--The Courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely: (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."
18. The object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence, or laches.
19. If Section 52 of the Transfer of Property Act was really intended to strike at the running of the period of limitation, based on the considerations mentioned above, it would have made it clear that the law excludes the period spent in any litigation from computation.
Exclusion of time in computing periods of limitation is a different subject altogether to which the whole of Part III of the Limitation Act is devoted. There, we find Section 14, which deals with "exclusion of time of proceeding bona fide in 82 Court without jurisdiction". There are certain conditions for the applicability of Section 14 of the Limitation Act. One of these is that the plaintiff should have prosecuted, with due diligence, civil proceedings "founded upon the same cause of action". In the case before us, the cause of action arose, according to the plaintiffs, after the decision of the previous suit. The cause of action in the previous suit was entirely different. Indeed, it was the defendants-respondents who had sought relief, there and set up a cause of action. Section 14 of the Limitation Act of 1908 which is the only provision of the statute specifically dealing with exclusion of time spent in another litigation, could not obviously apply to the case now before us. The only mode of relief open to the plaintiffs was to have instituted a suit of their own within the prescribed period of limitation. They did institute the suit now before us but did so long after the period of limitation had expired. In such a case Section 52 of the Transfer of Property Act could not, in our opinion, apply at all. The matter could only be covered, if at all, by some provision of the statute of limitation which, as already observed, makes no provision for such a case. The effect of Section 3 Limitation Act is that it expressly precludes exclusion of time on a ground outside this Act even if it parades under 83 the guise of a doctrine which has no application whatsoever here".
(Emphasis supplied) Thus, the position of law is made very clear on the subject of lispendence. When it is categorically held that the suit of the plaintiffs is barred by limitation, the question of applying the principles of lispendence does not arise.
86. In view of the above, I am of the opinion that the plaintiffs who have failed to prove the Will in question in accordance with law, and failed to seek annulment of the registered sale deeds, which were admittedly executed by defendant No.1 in favour of various other persons, are not entitled for declaration of their title. The plaintiffs have also not arrayed all the persons who are in possession of the schedule properties and not pleaded the basis on which they are in possession of the property by referring to the relevant registered sale deeds. Moreover, the suit of the plaintiffs was barred by limitation. Under such circumstances, they are also not entitled for any of the reliefs including the possession of the schedule properties.
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87. I have gone through the impugned judgment and decree passed by the trial Court. While dismissing the suit of the plaintiffs, the Trial Court having taken into consideration all the materials on record, non-examination of the attesting witnesses, not producing the original Will and proving the Will Ex.P1 in accordance with law, held that the plaintiffs are not entitled for any of the reliefs. There is no perversity or illegality in the judgment and decree passed by the Trial Court.
88. When the judgment and decree passed by the trial Court was impugned before the First Appellate Court, the plaintiffs led further evidence and the First Appellate Court, on re-appreciation of the materials on record, came to the conclusion that plaintiffs are entitled for the reliefs as claimed and decreed the suit as prayed for by allowing the appeal. The First Appellate Court committed an error in accepting the contention of the plaintiffs and placing the burden on the defendants to prove that the suit is barred by limitation, in spite of the fact that there is no necessary pleadings pleaded by the plaintiffs. According to the First Appellate Court, the defendants have not specifically contended or proved as to 85 when exactly the plaintiff No.1 acquired knowledge regarding the transaction referred to in the plaint as cause of action for filing the suit. The First Appellate Court has referred to Article 58 of the Limitation Act to hold that the suit for declaration of title by the plaintiffs is well within time. The approach of the First Appellate Court in allowing the appeal on the ground that defendants 2 to 10 have expressed their ignorance regarding the Will dated 02.03.1945 and have not denied the execution of the Will and therefore, holding that the plaintiffs have proved the Will in question, is erroneous and perverse.
89. The finding of the First Appellate Court that the legal representatives of defendant No.9 have taken inconsistent and contradictory pleas, is also erroneous. The finding of the First Appellate Court that mere production of the certified copy of the Will without further oral evidence in support of the same would be enough to show that the original document as executed and registered was also perverse and erroneous.
90. The First Appellate Court placed reliance on Section 90 of the Indian Evidence Act to get support to its 86 finding that since the Will Ex.P1 is a document which is beyond 30 years, there is a presumption regarding the signature and every other part of the Will purported to be in the handwriting of the testator, executed and attested as stated in the document. The First Appellate Court has lost sight of the fact that the original Will was never produced before it or before the trial Court to draw the presumption under Section 90 of the Evidence Act.
91. In Kashibai Martand Vs. Vinayak Ganesh and others20 , the Bombay High Court held that the presumption under Section 90 cannot be applied to a copy even though it is admitted under the provisions of Section 65 and held in paragraphs 5 and 8 as under:
"5. The point of law which arises for our decision falls under Sections 89 and 90, Evidence Act. The first contention which Mr.Kotwal has raised before us on behalf of the appellant is that he would be entitled to ask the Court to draw a presumption in favour of his claim under Section 90, Evidence Act, itself. Mr. Kotwal points out that the original document was a registered document 20 AIR 1956 BOMBAY 65 87 and that he has been permitted to produce and prove a certified copy of the said-document.
The certified copy itself can be regarded as more than 30 years old and so under the provisions of Section 90, a presumption can be drawn about the valid execution of the original document in turn.
This question has been raised for judicial decision on several occasions and since the decision of the Privy Council in -- 'Basant Singh v. Brijraj Saran Singh', it must now be taken to be settled that, where a document which is produced is a copy admitted under Section 65, Evidence Act, as secondary evidence and it is produced from proper custody and is over 30 years old, the signatures authenticating the copy may be presumed to be genuine under Section 90.
Even so, under Section 90, when a copy is produced, the presumption cannot be made that the signature, handwriting, execution or attestation of the original document were in order. Section 90 provides for the raising of a presumption as to documents purporting or proved to be 30 years old.
Where any document purporting or proved to be 30 years old is produced from proper 88 custody, the Court may, under Section 90, presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Before the decision of the Privy Council was pronounced on this point in 'Basant Singh's case, there appears to have been a conflict of judicial opinion on the question as to whether the presumption permissible under the provisions of Section 90 was confined only to original documents or could be extended even to copies of original documents allowed to be produced under the provisions of Section 65 of the Evidence Act.
That conflict has now been resolved and it has been decisively held that the presumption under Section 90 cannot apply to a copy though it may have been admitted under the provisions of Section 65 of the Evidence Act.
8. It is, however, necessary to make it clear that the inference as to the admission made by the executant that he had executed the document which we are raising in the present appeals is referable to Section 60(2), Registration 89 Act, and it has no reference to Section 90, Evidence Act.
In order to draw the inference under Section 60(2) of the Registration Act it is not required that the document should be ancient: all that is required is that, under the provisions of the Evidence Act, a certified copy should be admissible, and if it is admitted, it should bear the endorsement required by Section 58 of the Registration Act.
Whenever a certified copy of a registered document bearing endorsements made under Section 58 is produced before a Court, Section 60(2) authorises the inference to be drawn that the facts mentioned in the endorsements have occurred as therein mentioned. In other words, this is a presumption or inference authorised by the provisions of Section 60(2), Registration Act and it need not be connected or confused with a presumption or inference that may arise under Section 90 of the Indian Evidence Act.
The provisions of Section 90 do not apply to a copy as has been held by the Privy Council and it would make no difference to the said position that the copy in question is a certified copy of a registered document. Section 90 refers to a 90 document, and in the context it must mean the original document and not its copy, however, made.
Therefore, in our opinion, it would not be right to hold that, because the Privy Council were dealing with the certified copy of an unregistered document when they considered the scope and effect of the provisions of Section 90 of the Evidence Act, the decision should be confined only to certified copies of unregistered documents and cannot be extended to certified copies of registered documents.
The decision of the Privy Council is based upon the proper denotation of the word "document" used in Section 90 and on that denotation all copies would be excluded, whether they are certified copies of registered or unregistered documents. Even so, as I have just indicated, having regard to the provisions of Section 60(2), it would be open to the appellant in the present case to contend that, since the document which is produced is a certified copy of a registered document, a presumption can be drawn that the document had been executed by the executant and that he had admitted its execution before the registering officer."91
92. In Ashutosh Samanta (D) by Lrs. And Others Vs SM. Ranjan Bala Dasi and Others 21, the Hon'ble Apex Court held that Will cannot be presumed to be genuine merely because it is aged more than 30 years old.
93. The First Appellate Court formed an opinion that since the properties were purchased by the defendants during the pendency of the suit, the same are hit by principles of lis pendens. The First Appellate Court had not considered the question of limitation in approaching the Court by the plaintiffs. Therefore, the impugned judgment and decree passed by the First Appellate Court is perverse and erroneous. Hence, the same is liable to be set aside.
94. Accordingly, I answer the substantial questions of law in favour of the appellant and against the respondents and proceed to pass the following:
ORDER
(i) The appeal is allowed with costs throughout.
(ii) The judgment and decree dated 13.04.2010 passed in RA No.65 of 2001 on the file of 21 2023 Livelaw (SC) 190.92
the learned Sessions Judge, Fast Track Court-II, Bengaluru Rural District, is hereby set aside.
(iii) The judgment and decree dated 12.02.2001 passed in OS No.78 of 1968 on the file of the learned Additional Civil Judge (Jr.Dn.), Bengaluru Rural District, is hereby restored.
(iv) Consequently, the suit of the plaintiffs is dismissed with costs.
Registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE *bgn/-