Madhya Pradesh High Court
Nathulal vs Amarsingh & Ors. on 27 November, 2017
Author: Vivek Rusia
Bench: Vivek Rusia
-: 1 :- First Appeal No.367 of 1998.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Vivek Rusia )
First Appeal No.367 of 1998.
Nathulal (deceased) through Smt. Rajubai and others
VERSUS
Amarsingh (deceased) through Smt. Reshambai and others
*****
Shri V.K.Jain, learned Senior Counsel with Shri Vaibhav
Jain, learned counsel for the appellants (represented through
legal representatives).
Shri A.S.Garg, learned Senior Counsel with Ms.
Meghna Jain, learned counsel for the Respondent No.1
(represented through legal representatives).
Shri Vibhor Khandelwal, learned Govt. Advocate for the
Respondent No.2/State.
Shri Vivek Phadke, learned counsel for the Respondent
Nos.3 to 11.
*****
J U D G M E N T
( Delivered on this 27th day of November, 2017 ) THE legal heirs of the plaintiff 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.25-A/93 by which the suit for declaration and possession against the defendants has been dismissed.
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[2] Facts of the case, in short, for disposal of
this appeal are as under :-
(a) The plaintiff - Nathusingh is a son of
Hatesingh from his first wife Rajubai. The defendant No.1 is a elder brother of Hatesingh.
(b) The defendant Nos.3 to 10 are sons and daughters of Hatesingh from his second wife Gauribai (defendant No.11). When Rajubai died, the plaintiff Nathusingh was minor and Hatesingh has performed the second marriage with Gauribai. In order to save the plaintiff from the anguish of step mother i.e. Gauribai, the custody of the plaintiff was given to the defendant No.1 and in order to secure his future and maintenance, Hatesingh executed a sale-deed dated 09.05.1961 in favour of the plaintiff and the defendant No.1 jointly. By the aforesaid sale-deed, Hatesingh has sold the land Survey No.2, 3/1 and 8/2 area 11.77 acre; Survey No.3/2, 4 and 5 area 2.85 acre and Survey No.8/1 area 4.57 acre, in total 19.19 acre of Village Bicholi-Mardana [hereinafter referred to as "the suit land"]. According to the plaintiff, Hatesingh did not receive any sale consideration and the intention behind the sale was that the plaintiff would be the owner of the land and the defendant No.1 would look after his interest. The name of the defendant No.1 has been included in the sale-deed as Patron/Trustee but he was not got any right or title over suit land. By the passage of time, the value of the land has been increased and the dishonesty came in the mind of the defendant No.1 and he has started treating himself as owner of half of the land and disowned his status of Trustee. The
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defendant No.1 filed the application before the Tehsildar for partition which was registered as Case No.1-A/90-91 in which he claimed himself as owner of land Survey No.212 area 0.40 acre; Survey No.3 area 7.95 acre and Survey No.211 area 1.24 acre, in total 8.59 acre. On 15.06.1992 he has forcibly taken the possession of entire land. Hence, the plaintiff filed the suit for declaration; possession and mesne profit.
(c) After notice, the defendant No.1 filed the written-statement denying the averments made in the plaint by submitting that by sale-deed dated 09.05.1961 he purchased 1/2 share in the suit property and the partition has taken place 20 years back, therefore, he has become owner of the land and suit is time barred also.
(d) The defendant Nos.3 to 11 filed the joint written-statement by submitting that the sale deed dated 09.05.1961 is not binding on them as at that time the plaintiff Nos.1 to 3 have taken birth and were minor, hence the sale-deed is void and in the suit property they have 9/10 share.
(e) On the basis of pleadings, the learned Trial Court has framed as many as 14 issues for adjudication.
(f) The plaintiff examined Antarsingh s/o Pannalal as PW-1; Ramkishan s/o Jagannath as PW-2; Meharbansingh s/o Nathulal as PW-3 and Sureshchandra s/o Nathulal as PW-4. The plaintiff has got exhibited the sale- deed dated 09.05.1961 as Ex.P/1; Khasra Panch-Sala for the year 1954-55 as Ex.P/2; Mark-sheets of Nathulal as Exs.P/3 and 4; judgments of the High Court, Bench at Indore dated
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22.10.1991 as Ex.P/5 and dated 21.04.1992 as Ex.P/6.
(g) In defence, the defendant No.1 Amarsingh examined himself as DW-1 and got exhibited Bhu-Adhikar and Rin-Pustika as Ex.D/1-C; Rasid Bahi as Ex.D/2 and certain receipts as Exs.D/3 and D/4.
(h) The learned Additional District Judge vide judgment and decree dated 05.09.1998 has dismissed the suit as time barred in respect of the sale (Ex.P/1). While deciding Issue Nos.5 and 6, the learned Court has held that there is a strong possibility that Hatesingh in order to secure his son - plaintiff has executed the sale-deed dated 09.05.1961 (Ex.P/1) and no sale consideration was given to him. The learned Court has also came to the conclusion that the partition has taken place between the plaintiff and the defendant No.1 and the name of the defendant No.1 has been mutated in Exs.D/1 to D/4 and he is paying the land revenue. Therefore, the defendant No.1 has established that he has become owner of 1/2 of the suit property. While answering Issue No.5, the learned Court has held that vide sale-deed dated 09.05.1961 the defendant No.1 has received the rights and title. The learned Court has dismissed the suit on the ground of limitation that Hatesingh during his life time has not challenged the sale-deed dated 09.05.1961. Hatesingh lived 25 years after 1961 and died in the year 1986. The plaintiff has become major in the year 1965 and he filed the suit after 12 years, hence the suit is time barred.
[3] Being aggrieved by the dismissal of the suit, the appellants have preferred this appeal before this Court on the ground that the learned Additional District Judge has
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wrongly dismissed the suit as time barred when the cause of action arose in the year 1991 when the defendant No.1 has claimed partition before the Tehsildar. The learned Trial Court has decided Issue Nos.4 (a), (b) and (c) in favour of the plaintiff, therefore, the suit ought to have been decreed in favour of the appellants.
[4] I have heard Shri V.K.Jain, learned Senior Counsel with Shri Vaibhav Jain, learned counsel for the appellants (represented through legal representatives); Shri A.S.Garg, learned Senior Counsel with Ms. Meghna Jain, learned counsel for the Respondent No.1 (represented through legal representatives), Shri Vibhor Khandelwal, learned Govt. Advocate for the Respondent No.2/State and Shri Vivek Phadke, learned counsel for the Respondent Nos.3 to 11.
[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 and if answer is yes, then there is no limitation to file the suit.
[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
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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 plaintiff and defendant No.1 and their name have 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 plaintiff No.2.
[8] The fact remains that the so called sale-deed Ex.P/1 was executed in the year 1961 and Hatesingh died on 24.03.1986, therefore, for 25 years Hatesingh had never challenged the sale-deed. The plaintiff attained the majority but has not 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 family can challenge the transfer of the property by the Karta of the family within 12 years.
[9] 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
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prescribed period of three years after attaining majority. Para 26 to 31 of the order reproduced below :-
"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.
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
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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."
[10] 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 plaintiff, 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- 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 his interest from the anguish from
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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 plaintiff 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 plaintiff 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.
[11] The date of birth of Nathu is 06.08.1947 and he attained the age of majority in the year 1965 but filed the suit in the year 1991, hence in view of law laid down by the Apex Court, as reproduced above, the learned Additional District Judge has rightly dismissed the suit 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 17:46:05 -08'00'