Madhya Pradesh High Court
Mohanlal vs Amar Singh on 27 November, 2017
Author: Vivek Rusia
Bench: Vivek Rusia
-: 1 :- First Appeal No.513 of 1998.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Vivek Rusia )
First Appeal No.513 of 1998.
Mohanlal s/o Hatesingh and 7 others
VERSUS
Amarsingh (deceased) through Smt. Reshambai and others
*****
Shri Vivek Phadke, learned counsel for the appellants.
Shri V.K.Jain, learned Senior Counsel with Shri Vaibhav
Jain, learned counsel for the Respondent No.1 (represented
through legal representatives).
Shri A.S.Garg, learned Senior Counsel with Ms.
Meghna Jain, learned counsel for the Respondent No.2
(represented through legal representatives).
Shri Vibhor Khandelwal, learned Govt. Advocate for the
Respondent No.3/State.
*****
J U D G M E N T
( Delivered on this 27th day of November, 2017 ) THE plaintiffs have filed the present appeal being aggrieved by judgment and decree dated 05.09.1998 passed by XIIIth Additional District Judge, Indore in Civil Suit No.24-A/93 by which the suit has been dismissed.
[2] Facts of the case, in short, for disposal of this appeal are as under :-
(a) As per the undisputed facts the plaintiff No.9 Gauribai is second wife of Hatesingh and the plaintiff
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Nos.1 to 8 are son and daughters of Hatesingh and Gauribai. The defendant No.1 is real brother of Hatesingh. The defendant No.2 is a son from first wife of Hatesingh i.e. Late Rajubai. Hatesingh was adopted by Laxman and he received the land Survey No.3/1, 8/2 - 11.77 hectare; Survey No.3/2, 4, 5 area 2.85 hectare and Survey No.8/1 area 4.57 hectare, in total 38.38 acre of Village Bicholi-Mardana [hereinafter referred to as "the suit land"]. Hatesingh has executed a sale-deed dated 09.05.1961 in favour of defendant Nos.1 and 2 jointly.
(b) The case of the plaintiff Nos.1 to 9 before the Civil Court is that the plaintiff Nos.1 to 8 are son and daughters of Hatesingh from plaintiff No.9 and the defendant No.1 is elder brother of Hatesingh. The defendant No.2 is son from first wife of Hatesingh. Hatesingh was adopted by Laxman and he received by way of succession land measuring 38.38 acre. Hatesingh has died on 24.03.1986. In order to secure the future and save the defendant No.2 from the anguish of step mother i.e. plaintiff No.9, Hatesingh has appointed the defendant No.1 as Trustee/conducive to look after the interest of defendant No.2 by executing a sale-deed dated 09.05.1961 was executed without receiving any consideration in favour of the defendant Nos.1 and 2. At the time of execution of sale- deed dated 09.05.1961, the plaintiff Nos.1 to 3 were minor, therefore, Hatesingh had no right to sell the property in favour of the defendant Nos.1 and 2 against their interest. Hatesingh received the property by way of succession, therefore, the suit property was ancestral property. The each
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plaintiffs are having 9/10 share in the suit land and the sale- deed dated 09.05.1961 is liable to be declared as void.
(c) After notice, the defendant No.1 filed the written-statement by submitting that Hatesingh was adopted by Laxman and received the property from him. Hatesingh has sold him the suit land by a registered sale-deed dated 09.05.1961 and he has paid Rs.1,500-00 for his 50% share in the suit land. The partition between defendant Nos.1 and 2 has taken place 10 years back by dividing half - half property. Hatesingh during his life time had never objected the sale-deed and partition between the defendant Nos.1 and
2. Therefore, the suit is time barred and liable to be dismissed.
(d) The defendant No.2 filed the written-
statement by submitting that Hatesingh was adopted by Laxman and received the property 38.38 being legal heirs, therefore, he being Karta of the family was competent to sell the property. The property was sold to him and the defendant No.1 was appointed as Trustee to look after his interest. When the defendant No.2 filed an application for partition before the Tehsildar on 15.02.1991 against his interest, then he filed the Civil Suit No.25-A/93 against the defendant No.1 and the plaintiff seeking declaration that he is exclusive owner of the suit land. The present plaintiffs have no interest and title in the present property which was sold to him by a registered sale-deed dated 09.05.1961 (Ex.P/1).
(e) On the basis of pleadings, the learned Trial Court has framed 7 issues for adjudication.
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(f) The plaintiff Sohanlal examined himself as PW-1; Mohanlal as PW-2. The defendant No.1 Amarsingh examined himself as DW-1 and Meharbansingh examined himself as DW-1.
(g) The learned Additional District Judge has recorded the finding on Issue No.1 that the sale transaction vide Ex.P/1 was not actual sale-deed but an arrangement for maintenance of the defendant No.2. Hatesingh was entitled to transfer the land of joint hindu family but he has made arrangement only for maintenance of the defendant No.2 by executing Ex.P/1. The entire property was undivided joint hindu family property and same can be transferred with the permission of District Judge as the rights of minors are also involved, but the Trial Court has not declared the sale-deed as illegal despite that there was no permission to sell from the District Judge. While deciding the Issue Nos.4, 5 and 7, the learned Additional District Judge has ascertained the share of the plaintiff Nos.1 to 3 and 8 as 17/70 and share of the plaintiff Nos.4 to 7 as 1/70. The learned Trial Court while deciding the Issue No.6 has held that the suit is time barred as the same was not filed within 3 years under Article 60 of the Limitation Act. Accordingly vide judgment and decree dated 05.09.1998 dismissed the suit. Hence, the present appeal before this Court by the plaintiffs.
[3] The plaintiffs/appellants have assailed the judgment and decree on the ground that when the learned Trial Judge has practically decided all the issues in favour of the plaintiffs then ought not to have dismissed the suit on the ground of limitation alone. According to the appellants vide
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Ex.P/1 a Trust was created by Hatesingh and under Section 10 of the Limitation Act there is no limitation for filing the suit in respect of the Trust property. That Articles 59 and 60 would not apply in this case. Therefore, the judgment and decree so far as dismissal of the suit on the ground of limitation is set-aside and the suit is liable to be decreed in favour of the plaintiffs.
[4] I have heard Shri Vivek Phadke, learned counsel for the appellants; Shri V.K.Jain, learned Senior Counsel with Shri Vaibhav Jain, learned counsel for the Respondent No.1 (represented through legal representatives), Shri A.S.Garg, learned Senior Counsel with Ms. Meghna Jain, learned counsel for the Respondent No.2 (represented through legal representatives) and Shri Vibhor Khandelwal, learned Govt. Advocate for the Respondent No.3/State.
[5] The only issue involved in this appeal is whether the learned Trial Court has wrongly dismissed the suit on the ground of limitation and by Ex.P/1 a Trust was created in favour of the defendant Nos.1 and 2 by Hatesingh ?
[6] It is not disputed that Hatesingh has received the property from Laxman by way of his adoption by him. The Trial court has recorded the finding that the entire property became joint hindu family property and the sale-deed executed by Hatesingh in favour of the defendant Nos.1 and 2 is not illegal. By a registered sale-deed dated 09.05.1961 Hatesingh has sold the suit land jointly to the defendant Nos.1 and 2 in total sale consideration of
-: 6 :- First Appeal No.513 of 1998.
Rs.1,500-00. In the sale-deed the purpose of sale is not mentioned. The defendant No.1 in his evidence has stated that he has paid the amount of Rs.1,500-00. The defendant No.2 was minor at that time having no source of income. After the aforesaid sale, the possession was given to the defendants and their name has been recorded in the revenue records.
[7] The learned appellate Court has held that the aforesaid sale-deed is sham and bogus but only an arrangement was made for maintenance of the defendant No.2. The said finding has not been assailed by the defendants by filing appeal.
[8] So far as the applicability of Section 10 of the Limitation Act is concerned, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns, shall be barred by any length of time. To invoke Section 10, there has to be a Trust either under the provisions of the Indian Trusts Act, 1882 or under the M. P. Public Trusts Act. Admittedly there is no registered Trust under the provisions of M. P. Public Trusts Act. According to the plaintiffs, the Trust has been created by Hatesingh. The "Trust" is defined in the Indian Trusts Act, 1882 and as per the definition a "trust" it is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner for the benefit of another and the owner. A trust may be created for any lawful purpose for moveable and immovable property. Under Section 5 a trust of immovable property is valid if declared by a non-
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testamentary instrument in writing signed by the author of the trust or the trustee by way of will. Under Section 6, a trust is created when the author of the trust indicates with reasonable certainty by any words and acts. His intention, the purpose, the beneficiary and the trust property. By Ex.P/1, a sale-deed was executed in favour of the defendant Nos.1 and 2. It is the case of plaintiffs that the sale-deed was created in order to save the interest of defendant No.2 from the anguish from his step mother, but no such reason has been assigned in Ex.P/1. It is a simple sale-deed in favour of the defendant Nos.1 and 2 in which the sale consideration of Rs.1,500-00 was paid to Hatesingh. Hatesingh during his life time had never challenged the sale-deed. The name of the defendant Nos.1 and 2 were recorded in the revenue records. The dispute arose in the year 1991 when defendant No.1 filed an application for partition before the Tehsildar claiming ½ share in the property. Therefore, as per definition under Sections 4, 5 and 6 by Ex.P/1 trust has not been created. Therefore, section 10 of the Limitation Act would not apply.
[9] The fact remains that the so called sale-deed Ex.P/1 executed in the year 1961 and Hatesingh died on 24.03.1986, therefore, for 25 years Hatesingh has never challenged the sale-deed. The defendant No.2 attained the majority in the year 1965 and thereafter the plaintiff Nos.1 to 3 attained the majority but they never challenged the sale- deed Ex.P/1. Under Article 60 of the Indian Limitation Act the plaintiffs could have challenged the sale-deed within 3 years. Under Article 109 any member of the joint hindu
-: 8 :- First Appeal No.513 of 1998.
family can challenge the transfer of the property by the Karta of the family within 12 years. The plaintiffs in their evidence has admitted that the defendant No.1 are in possession in the suit property since 1961. In para 2 of the cross-examination Mohanlal (PW-2) has admitted that he is seeing Nathusingh cultivating the land from 1961. He had knowledge of sale in the year 1986. Therefore, the learned Trial court has not committed any error while dismissing the suit as time barred.
[10] In the case of Narayan v/s Babasahed, reported in 2017 (I) MPLJ 62, the Apex Court has considered the scope of Section 8 (2) (a) of the Hindu Minority and Guardianship Act, 1956 and Article 60 of the Limitation Act. The Apex Court has held that limitation to file the suit is governed by Article 60 of the Limitation Act and the limitation is three years from the date of attaining majority. 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. Para 25 to 31 of the order reproduced below :-
"25. 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.
26. 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 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.
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27. 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.
28. The Limitation Act neither confers a right nor an obligation to file a Suit, if no such right exists under the substantive law. It only provides a period of limitation for filing the Suit.
29. Hence, we are of the considered opinion that a quondam minor plaintiff challenging the transfer of an immovable property made by his guardian in contravention of Section 8(1)(2) of the 1956 Act and who seeks possession of property can file the Suit only within the limitation prescribed under Article 60 of the Act and Articles 109, 110 or 113 of the Act are not applicable to the facts of the case.
30. The High Court as well as the Trial Court erred in applying Article 109 of the Act, where Article 109 of the Act clearly speaks about alienation made by father governed by Mitakshara law and further Courts below proceeded in discussing about the long rope given under Article 109 of the Act and comparatively lesser time specified under Article 60 of the Act. It is well settled principle of interpretation that inconvenience and hardship to a person will not be the decisive factors while interpreting the provision. When bare reading of the provision makes it very clear and unequivocally gives a meaning it was 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.
31. 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."
[11] The plaintiff Nos.1 to 3 attained the majority but did not challenge the sale-deed (Ex.P/1) within three years and even within 12 years as per Article 109 of the Limitation Act. Hence, learned Additional District Judge did not committed any error of law while dismissing the suit
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as time barred.
[12] In the result the appeal fails and is hereby dismissed. No order as to costs.
[ VIVEK RUSIA ] JUDGE Sharma AK/* Anl Kumar Sharma 2017.11.28 17:48:23 -08'00'