Orissa High Court
Smt. Malatilata Mishra And Another vs Keshab Chandra Mohapatra on 22 September, 2017
Equivalent citations: AIR 2018 ORISSA 10, (2018) 2 CIVILCOURTC 7, (2017) 2 ORISSA LR 1037, (2018) 125 CUT LT 926
ORISSA HIGH COURT: CUTTACK
R.S.A. NO.78 OF 2015
From the judgment and decree dated 5.1.2015 and 8.1.2015,
respectively passed by Shri Jiban Ballav Das, District & Sessions
Judge, Jajpur in R.F.A. No.66 of 2013 reversing the judgment and
decree dated 12.8.2013 and 23.8.2013, respectively passed by Shri
Damodar Rath, Civil Judge (Senior Division), Jajpur in Civil Suit
No.415 of 2011.
__________
Smt. Malatilata Mishra and another ...... Appellants
Versus
Keshab Chandra Mohapatra ...... Respondent
For Appellants : M/s. M. Mohanty, N. Behera, S. Rath,
S.C. Dash, S.K. Mishra & S.K. Dash
For Respondent : M/s. Mahadev Mishra, Mamata Mishra,
P. Sahoo, R.K. Sutar, G.C. Bhuyan &
S. Pradhan
PRESENT :
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
Date of hearing : 24.08.2017 Date of judgment : 22.09.2017
DR. D.P. CHOUDHURY, J. The Defendants are the Appellants assailing the
judgment and decree dated 5.1.2015 and 8.1.2015, respectively passed
by the learned District & Sessions Judge, Jajpur in R.F.A. No.66 of 2013
allowing the appeal and reversing the judgment and decree dated
12.8.2013and 23.8.2013, respectively passed by the learned Civil Judge (Senior Division), Jajpur in Civil Suit No.415 of 2011. 2
2. This Second Appeal is admitted on the following two substantial questions of law for consideration:
(1) Whether the lower appellate court is right in holding the suit to be not barred by limitation in view of provision of Article 60(a) of the Limitation Act ? (2) Whether the right of the plaintiff to challenge the alienation stood extinguished by virtue of provision of Section 27 of the Limitation Act ?
3. The unshorn details of the facts leading to filing of the suit is that the suit land measuring area of Ac0.34 decimals pertaining to Sabik Plot No.239 under Sabik Khata No.35 in Mouza Mishra Brahmapur was purchased in the name of the plaintiff and his sister Sebati Dei on payment of consideration by the maternal uncle of the plaintiff vide registered sale deed No.6464 dated 19.9.1975. The Plaintiff's mother Jamuna Dei being the mother guardian of the plaintiff executed document to look after minor share in the said suit land.
4. Be it stated that the father of the plaintiff died for which the plaintiff was compelled to stop the study and went for work to maintain his family. While the plaintiff had gone for work, his mother Jamuna Dei at the instigation of the plaintiff's sister Sebati Dei sold out the plaintiff's suit property during his minority vide registered sale deed Nos.2061 and 2062 dated 2.5.1986, respectively. At that time the plaintiff was not present in the village and he had gone to work place and then to hospital for treatment of tuberculosis. When this fact was brought to the 3 knowledge of the plaintiff, he found that violating Section 8 (2) of the Hindu Minority and Guardianship Act, 1956 (hereinafter called "the Act") read with Section 29 of the Guardians and Wards Act, 1890, the aforesaid sale took place without any permission obtained from Court. Although it has been maintained in the impugned sale deed that the suit property was sold for the best interest of the minor-plaintiff and for legal necessity, but these averments were made fraudulently and by misrepresentation of facts. Thus, the said sale deeds are void under law which can be avoided by the plaintiff. Since the plaintiff gathered knowledge about fraud and mischief played over such property of the plaintiff during his minority, legal notice was issued to the defendants intimating that he should execute the 'Nadabi Patra' in his favour to regularize the sale but the defendants remained silent. Further, the defendants filed proceeding under Section 145 Cr.P.C. against the plaintiff and his wife from coming over the suit land. So, finding no other way the plaintiff filed the suit to declare the sale made vide RSD Nos.2061 and 2062 as void and possession being redelivered to plaintiff. It is also prayed to issue R.O.R. to plaintiff and defendants be restrained from entering into the suit land.
5. The defendants filed written statement by refuting the entire allegation made in the plaint. It is the case of the respondent that there is no fraud or misrepresentation to make it void transaction exercised by the defendants. The defendants also denied about issue of any legal 4 notice by the plaintiff during his minority to the defendants to execute 'Nadabi Patra' in favour of the plaintiff.
6. The Defendants in the written statement have clearly averred that they have purchased the suit land for consideration under registered sale deed Nos.2061 and 2062 followed by delivery of possession and the mother of the plaintiff has sold the share of the plaintiff for the benefit of the plaintiff who was minor by then. Plaintiff having attained majority has got full knowledge of this transaction. Not only this but also the plaintiff has already constructed residential building, latrine, bath room etc. on the suit land. The factum of possession of defendants is widely known to the persons of the locality. After purchase the defendants got their names mutated in the revenue records. Even just after attaining majority no suit has been filed by the plaintiff but long after years the present suit is filed which should be dismissed.
7. Learned Civil Judge (Senior Division), Jajpur framed six issues. While giving finding with regard to Issue Nos.3, 4 and 5, he held that the defendants have failed to establish that the mother guardian of the plaintiff sold the suit property for the interest of his benefit but at the same time held that the suit filed by the plaintiff is barred by limitation under Article 60 of the Indian Limitation Act. As such, the trial court dismissed the suit. In the appeal, learned District Judge, Jajpur reversed 5 the finding of the trial court by observing that Article 60 of the Limitation Act would not apply. But the suit was filed within the period of limitation as prescribed under Article 58 of the Limitation Act from the date of knowledge of the plaintiff.
8. Learned counsel for the appellants challenged the finding of the learned Appellate Court stating that the appellate court has erred in law by not understanding the fact of the case. According to him, when admittedly the sale deed was executed on 2.5.1986 by the mother guardian of the plaintiff, the suit should have been filed within three years for cancellation of the sale deed. However, since he is a minor and challenged the transaction as couched with fraud and misrepresentation made by his mother guardian, it should have been only filed within a period of three years from attaining majority as Article 60 of the Indian Limitation Act speaks so.
9. Learned counsel for the appellant-defendants submitted that in the plaint it is clearly mentioned that plaintiff has no knowledge about transfer of the property in favour of the defendant-appellants and only it came to know about the transaction on 16.12.2010 as there was proceeding under Section 144 Cr.P.C. filed by the defendants, but during evidence led it has been brought that he has knowledge within attaining of his majority about transfer of the suit property in favour of the defendants. He cited the decision reported in (2007) 14 SCC 792; Utha 6 Moidu Haji v. Kuningarath Kunhabdulla and others where Their Lordships observed that Article 59 would apply if a suit is filed by the plaintiff for cancellation of transaction. In the present case, the prayer for cancellation of deed by the plaintiff long after attaining majority is only governed by Article 60 of the Limitation Act. Learned counsel for the appellants further submitted that the plaintiff-respondent became major in 1989 and the suit ought to have been filed within 1992 as per Article 60 of the Limitation Act. In M. Ramachandra and others v. Doddamuniyappa and another, reported in JT 2002 (Suppl.1) SC 48 and in the case of Bailochan Karan v. Basant Kumari Naik & another; AIR 1999 SC 876, it is made clear that a minor can challenge the bequeath of his property within three years from the date he attains majority. Similarly he cited the decision reported in (2016) 6 SCC 725; Narayan v. Babasaheb and others that in the similar facts and circumstances, the case will be governed by Article 60 of the Indian Limitation Act. He relied upon another decision reported in AIR 2011 SC 3590; Khatri Hotels Private Limited and another v. Union of India and another and stated that Article 58 of the Limitation Act has little difference with old Article 120 of the Indian Limitation Act, 1908 and according to such decision the right to sue only commence from the date when right to sue first accrues, of course this decision applies when there are multiple causes of action. So, he submitted to reject the appeal. 7
10. Learned counsel for the respondent submitted that learned Appellate Court has correctly analysed the fact of the case and applied Article 58 of the Limitation Act because the learned trial court has erred in law by holding that Article 60 of the Limitation Act would apply inasmuch as the limitation is to be counted for the benefit of the litigants. Moreover, when the respondent was not in the village at all and only came to know about the sale after notice under Section 144 Cr.P.C. issued, the knowledge of the respondent only starts from the date when he received notice under Section 144 Cr. P.C. He further submitted that the learned Appellate Court has rightly construed that the respondent has no knowledge and only for the first time gathered knowledge after which he filed the suit for cancellation of the concerned sale deeds. According to him, in the facts and circumstances of the case Article 58 of the Limitation Act applies and accordingly three years to be counted from the date of knowledge to file the suit and not from the date of attaining majority of the plaintiff.
11. Learned counsel for the respondent relied on the decision of the Hon'ble Supreme Court reported in AIR 2002 SC 215; Madhegowda v. Ankegowda where Their Lordships observed that transfer made by de facto guardian is in contravention of Section 11 of the Act is per se invalid and such invalid transfer is not required to be set aside by filing suit and the minor can repudiate such transfer on attaining majority. He also cited the decision of this Court reported in 1988 (II) OLR 191; 8 Bhukhan Sahu v. Bharat Chandra Sahu and others, where His Lordship distinguished the void and voidable transactions and His Lordship held that the provision under Article 59 of the Limitation Act is not applicable to void transaction but it is applicable to voidable transaction. He also cited the decision reported in AIR 1998 Orissa 196; Kamala Kumari Bohara v. Harekrishna Ghadei and others by submitting that the said authority has declared the sale deed executed by mother guardian on behalf of the minor by transferring the share of the minor is voidable in absence of permission from court as envisaged under Section 8 (2) of the Act. So, learned counsel for the respondent submitted that since Section 8 (2) of the Act has been violated by the mother of the plaintiff, the plaintiff has every right to challenge the same on attaining majority for which Article 58 applies but not Article 60 of the Limitation Act.
DISCUSSION
12. Before going to the facts, it is necessary to narrate the law involved in this Second Appeal. Section 8 of the Hindu Minority and Guardianship Act, 1956 is placed below for better appreciation:
"8. Powers of natural guardian.- (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,-9
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of subsection (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under section 29 of that Act, and in particular-
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4-A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court.
(6) In this section, "Court" means the City Civil Court or a District Court or a Court empowered under section 4-A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate."10
The aforesaid provisions make it clear that there is power of natural guardian to make transfer of the minor's property for the benefit of the minor or for the protection of the minor or protection of his property. Same power can be exercised by the natural guardian by obtaining the permission of the Court. If the permission is not obtained from the Court then the minor has got power to file the suit to declare such sale voidable at the instance of the minor or any person claiming under him.
13. Articles 58, 59 and 60 of the Limitation Act are placed below for better appreciation:
58. To obtain any other Three years When the right to sue declaration. first accrues
59. To cancel or set aside an Three years When the facts entitling instrument or decree or the plaintiff to have the for the rescission of a instrument or decree contract. cancelled or set aside or the contract rescinded first become known to him.
60. To set aside a transfer of property made by the guardian of a ward--
(a) by the ward who has attained Three years When the ward attains majority;
majority.
(b) by the ward's legal representative-
(i) when the ward
dies within three When the ward attains
years from the date Three years majority.
of attaining
majority.
11
(ii) when the ward Three years When the ward dies.
dies before attaining
majority.
14. The aforesaid provisions in the Limitation Act allow the person to obtain any declaration within three years when the right to sue first accrues. Similarly a person can pray for cancellation or setting aside an instrument or decree or for the recession of a contract. In that case the knowledge is computed so as to commence the period of limitation from that date of knowledge. But Article 60 is very clear to show that three years is to be computed from the date when the minor attains majority.
15. In the case of Utha Moidu Haji (supra) Their Lordships held that Article 59 would apply by the plaintiff if suit is filed within three years for cancellation of transaction. In the decisions in M. Ramachandra and others (supra), Bailochan Karan (supra) and Narayan (supra), it is held that in such cases Article 60 of the Indian Limitation Act would apply. The decision of the Hon'ble Apex Court in Khatri Hotels Private Limited and another (supra) about applicability of Article 58, Their Lordships held that for the sake of Article 58 of the Limitation Act, the limitation would commence from the date when right to sue first accrues. Of course, said case law applies where there are multiple causes of action.12
16. In the case of Madhegowda (supra), the Hon'ble Apex Court has categorically held that transfer made by de facto guardian in contravention of Section 11 of the Act is per se invalid and such invalid transfer is not required to be set aside by filing suit but same can be repudiated by minor on attaining majority. In a Single Bench decision of this Court in Bhukhan Sahu (supra) distinguished between the void and voidable transaction and held that Article 59 is applicable for a voidable transaction. This Court also held in the case of Kamala Kumari Bohara (supra) that transfer of the minor's estate by his mother guardian is voidable in absence of permission from Court and as such the minor has every right to challenge the same on attaining majority and this Court has not discussed on applicability of Article 60 of the Limitation Act.
17. It is reported in (2016) 6 SCC 725; Narayan v. Babasaheb and others where the Hon'ble Apex Court has been pleased to observe in paragraphs-25, 26 and 27 in the following manner:
"24. When once a transaction takes place in the name of the minor which is in contravention of the 1956 Act and which is not done for legal necessity, such transaction is voidable and unless such a transaction is sought to be impeached or set aside, the question of recovery of possession of that property does not arise.
25. A close analysis of the language of Article 60 would indicate that it applies to suits by a minor who has attained majority and further by his legal representatives when he dies after attaining majority or from the death of the minor. The broad spectrum of the nature of the suit is for setting aside the transfer of immovable property made by the guardian and consequently, a suit for possession by 13 avoiding the transfer by the guardian in violation of Section 8(2) of the 1956 Act. In essence, it is nothing more than seeking to set aside the transfer and grant consequential relief of possession.
26. There cannot be any doubt that a suit by quondam minor to set aside the alienation of his property by his guardian is governed by Article 60. To impeach the transfer of immovable property by the guardian, the minor must file the suit within the prescribed period of three years after attaining majority."
18. With due regard to the said decision, it is clear that where there is a case simply for setting aside the sale made by the natural guardian violating Section 8(1) and 8(2), it is voidable. On bare reading of Article 60 makes it clear and unequivocally gives a meaning that the provisions of the Act is to be interpreted in the same sense as the Latin maxim says "dulo lex sed lex", which means the law is hard but it is law and there cannot be any departure from the words of the law. Moreover, in the same judgment at paragraph-30 the Hon'ble Apex Court have observed as follows:
"30. Hence, in view of our above discussion, the limitation to file the present suit is governed by Article 60 of the Act and the limitation is 3 years from the date of attaining majority. When once we arrive at a conclusion that Article 60 of the Act applies and the limitation is 3 years, the crucial question is when there are several plaintiffs, what is the reckoning date of limitation? A reading of Section 7 makes it clear that when one of several persons who are jointly entitled to institute a suit or make an application for the execution of the decree and a discharge can be given without the concurrence of such person, time will run against all of them but when no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge."14
The Hon'ble Apex Court have categorically maintained that in case of minor after attaining majority can file suit for setting aside the instrument of course within three years as per Article 60 of the Limitation Act and the limitation starts from the date of attaining majority. In view of decision of the Hon'ble Apex Court, same is binding and being followed. Therefore, the contention of the learned counsel for the respondent that the suit is not barred by limitation and it is within time is defensible. The decision is clear that when minor files suit challenging the transfer made by the guardian in violation of Section 8 (2) of the Act, 1956, the minor must file the suit within the prescribed period of three years from the date of attaining majority.
19. Now adverting to the fact of the case, it is revealed from the plaint that the plaintiff and his sister while were minor, the suit land was purchased by the Registered Sale Deed in their favour in 1975. It is further case of the plaintiff that the plaintiff during his minority went outside for maintaining his livelihood as his mother was not earning much. So, the plaintiff remained outside for good number of years and also settled there at Bhadrak. In the meantime, the sister of the plaintiff got married. After certain years when the plaintiff wanted to possess the suit land, came to know through a proceeding under Section 144 Cr.P.C. that the suit land purchased in his favour during minority have been sold away by the mother guardian while he was minor, for the benefit of minor. So, at the age of 42 years he filed a suit asserting that he gathered 15 knowledge about the voidable sale made at the instance of mother guardian and thus filed the suit. On the other hand, the defendants took the plea that with the knowledge of the plaintiff the sale has taken place and for the benefit of the minor plaintiff, his mother guardian has sold the suit land to the defendants 1 and 2 by two registered sale deeds respectively and as such the suit is barred by limitation and hit by Article 60 of the Limitation Act. The trial court and the Appellate Court decided the matter basing on sole question of limitation.
20. As stated above, when the plaintiff challenged the alienation by registered sale deed by his mother guardian violating Section 8 (2) of the Act, 1956 read with Section 29 of the Guardians and Wards Act, 1890, under Section 8 (3), it is voidable and the challenge has been made particularly with regard to transfer of same suit land not for the benefit of the plaintiff minor. So, the decision of the Hon'ble Supreme Court on the facts and circumstances in the case of Narayan (supra) squarely applies. On the other hand, the suit being filed more than three years from the date of attaining majority of the plaintiff, it is barred by limitation. The substantial question of Law No.1 is answered accordingly.
21. Section 27 of the Limitation Act states as follows:-
"27. Extinguishment of right to property.--At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."16
Since Article 60 of the Limitation Act applies because of the filing of suit long after three years of attaining majority by the plaintiff, it must be held that the right to such property by the plaintiff has already been extinguished on the completion of three years from the date of attaining his majority. So, no right survives on the date of filing of the suit to the plaintiff to set aside such sale made in favour of the appellants. The substantial question of Law No.2 is answered. CONCLUSION:
22. In view of the aforesaid discussion, this Court is of the view that the conclusion made by the learned Appellate Court that Article 58 applies is incorrect and the view taken by the learned trial court that the suit is barred by Article 60 of the Limitation Act is restored. In the result, the judgment and decree passed by the learned District Judge is set aside. Ultimately the suit stands dismissed being barred by limitation.
In the result, RSA is allowed but respective parties to bear their own cost.
....................................
Dr. D.P. Choudhury, J.
Orissa High Court, Cuttack The 22nd September, 2017/Kar