Madras High Court
Veni, Rosi, Kesavan And Venkatesan vs Perumal, Deivaanai Ammal And ... on 25 October, 2002
JUDGMENT K. Gnanaprakasam, J.
1.The revision petitioners are the plaintiffs, who have filed the suit for declaration that the sale deed dated 14.8.1986 is null and void and for permanent injunction and also for partition of the suit properties and allotment of their shares.
2.The case of the plaintiffs is that the suit property is a joint family property of the plaintiffs and the defendants 2 and 3. The suit property was originally purchased by one Munusamy, father of the plaintiffs and the 3rd defendant and the husband of the 2nd defendant, under the sale deed dated 27.5.1976 from Ayilu Naidu. Munusamy died about 12 years back, leaving behind him the plaintiffs and the defendants 2 and 3. After the demise of Munusamy, the 2nd defendant, who is the elder brother of the plaintiffs was looking after the suit property, as the 'Kartha' of the family for and on behalf of the other family members also. The plaintiffs and the defendants 2 and 3 are each entitled to 1/6th share in the suit property. But, the defendants 2 and 3 had alienated the entire suit property in favour of the 1st defendant on 14.8.1986 and the same is questioned in the suit, stating that the alienation made by the defendants 2 and 3 is null and void and the same is not binding upon the plaintiff's.
3.The 1st defendant filed a written statement, stating, though the suit property was purchased by Munusamy, it is not his self-acquired property. Munusamy got ancestral properties and in and out of the income derived from the ancestral properties, he had purchased the land from one Logi Reddiar and others and sold the same to Duraisamy and in and out of the said sale proceeds, Munusamy purchased the suit properties. After the death of Munusamy, the 2nd defendant was managing the property as a 'Kartha' of the family and the suit property was sold for the ceremonies and functions of the daughters in the family and also for the family expenses and also to discharge the family debts and therefore, the sale is valid and also binding upon the plaintiffs. It is also stated that he is a bonafide purchaser of the property for a valid consideration. He also contended that the suit is also barred by limitation.
4.A check slip was also issued, which reads as under:-
"On a careful perusal of the plaint, a court fee of Rs.2.25 paid under Section 37(1) of the Court Fees Act for the first relief and a court fee of Rs.30.50/- paid under Section 27(c) of the Court Fees Act for the third relief is correct. As far as second relief under Section 25(d) of the Court Fees Act declaring the sale deed dated, 14.8.1986 is null and void, the plaintiff has given valuation at Rs.400/- and a court fee of Rs.30.50/- paid, which is incorrect.
The plaintiff seeks remedy and prayed relief for the cancellation of the document dated 14.8.1986. The plaintiff wants to declare that the sale deed is null and void. Hence, the plaintiff has to pay necessary court fee under Section 40 of the Court Fees Act, on the value of the property, for which the document was executed. The money value mentioned in the document is Rs.14,500/-. Instead of paying court fee for the amount of Rs.14,500/- under Section 40 of the Court Fees Act, the plaintiff has paid Rs.30.50/- under Section 25(d) of the Court Fees Act, valuing the property at Rs.400/-. Framing of suit under Order 2 Rule 2 CPC is not maintainable. The maintainability of the suit has to be decided after due notice and hearing of the parties concerned and also may be collected necessary deficit court fee under Section 40 of the Court Fees Act, after making necessary amendment and due notice and hearing of parties."
On the above said check slip, the court called upon the plaintiff's to file objections if any, and the plaintiff has also filed his objections, stating that by setting aside or declaring a particular document as null and void, if the person in whose favour the decree would be passed, is benefited to the tune of the amount cited in the document, then the court can compel the plaintiffs to pay court fee under Section 40(1), but where there is no benefit by the decree to the tune of the amount cited , the plaintiff has to pay court fee under Section 25(d) of the TNCF Act and accordingly, court fee is paid.
5.On 18.9.2001, the court, the after going through the plaint averments and the check slip and also the objections filed by the plaintiff, came to the conclusion that the plaintiffs were minors at the time when the alleged sale deed was executed by their mother, as guardian and hence, there is a new point of limitation also to be heard and ordered for further hearing of the matter and after hearing, orders were passed on 3.10.2001, holding that the properties alleged to have been sold by their mother and the elder brother of the plaintiffs in the year 1986, during the minority of the plaintiffs 3 and 4, who were aged about 17 and 16 years respectively, and any alienation by the mother, as a guardian is binding upon the plaintiffs, who were the sons and daughters of the 2nd defendant and as such, they have to pray for setting aside the sale. Even according to the citations submitted by the plaintiffs' counsel, the limitation period is 3 years from the date of attaining majority of the minors to bring a suit to set aside the sale. A perusal of the documents reveal that the 3rd plaintiff was only aged 17 years and the 4th plaintiff 16 years. The 3rd plaintiff would have attained majority in the year 1990. Hence he could have brought the suit before the year 1993, i.e. before attaining 21 years of age and the 4th plaintiff was aged about only 16 years, he would have attained the age of majority in the year 1991 and hence, he should have brought the suit in the year 1994 itself. Whereas the present suit was filed in the year 1995. Hence, the suit is barred by limitation, in respect of the plaintiffs 3 and 4. The court held that in respect of the plaintiffs 3 and 4, the plaint is rejected. The plaintiffs 1 and 2 have prayed for declaration of the sale deed as null and void and therefore, they are ordered to pay the court fee accordingly and the said order is under challenge in this civil revision petition.
6.The learned advocate for the revision petitioners challenges the order on two grounds, viz.
i.That the plaintiffs challenge the alienation of the property by their mother and elder brother during the minority of the plaintiffs and therefore, they need not seek for cancellation of the sale deed and therefore, court fee paid under Section 25(d) of the Court Fees Act for declaration of the sale deed date 14.8.1986 as null and void, is sufficient.
ii.That the sale of minors' property can be questioned by the minors after attaining majority within a period of 12 years from the date of alienation and not within a period of 3 years from the date of minors attaining majority.
7.Heard both sides.
8.The learned advocate for the revision petitioners would contend that the suit property is a joint family property and when the plaintiffs were minors, the suit property was sold by their mother and elder brother and the said sale is not valid and binding upon the plaintiffs. As such, they need not pray for cancellation of the sale deed and the prayer for declaration that the sale deed is null and void is sufficient and the court fee paid under Section 25(d) of the Court Fees Act, is also proper.
9.Per contra, the learned advocate for the respondents, Mr. P.Jagadeesan (Amicus Curiae) would submit that admittedly, the suit property is the joint family property and after the death of the 'Kartha' of the family, the suit property was managed by the mother of the plaintiffs and the 3rd defendant, as a 'Kartha' for and on behalf of the family members, and therefore, the sale made by the mother and the brother of the plaintiffs is valid and binding upon the plaintiffs.
10.It is further submitted that the sale made by the Kartha/ Manager of the joint family, including the minors' share in the suit property could be questioned only within a period of 3 years from their attaining majority and not within 12 years from the date of sale, as contended by the plaintiffs.
11.The 3rd submission is that the plaintiffs 1 and 2, who became majors even prior to the plaintiffs 3 and 4 becoming majors, have not chosen to question the validity of the sale made by the defendants 2 and 3, within a period of 3 years from the date of their attaining majority and that therefore, the plaintiffs 3 and 4 cannot question the sale deed.
12.Now the question is, whether the sale/alienation made by the 'Kartha' of the family, including the minors' share in the property has to be questioned within a period of 3 years from the date of attainment of majority or within a period of 12 years from the date of alienation of the property?
13.The plaintiffs were aged 45, 40, 30 and 28 years on the date of filing of the suit. The plaintiffs would have born in the year 1950, 1955, 1960 and 1967. Then, the 1st plaintiff would have attained majority in the year 1968, 2nd plaintiff in the year 1973, 3rd plaintiff in the year 1978 and the 4th plaintiff in the year 1985. Any alienation of the minor's property by guardian should be questioned within 3 years when the ward attaining majority, as per Article 60 of the Limitation Act. The alienation was on 14.10.1986. None of the plaintiffs are within 3 years limit in filing the suit, after attaining the age of majority.
14.It is settled law that a suit for a declaration, to set aside an alienation of minor's property by the guardian, filed more than 3 years after the attainment of majority, is barred under Article 60 of the Limitation Act. Even though the suit was filed within 3 years from the date of attainment of majority by the younger brother, it is seen that after the 1st plaintiff became major, the 2nd defendant was the elder brother of the plaintiffs 3 and 4 and he would be the Manager of the family and he could give a valid discharge. The suit property was sold by the 2nd defendant's mother along with the 3rd defendant, elder brother of the plaintiffs 2 and 3 and who was the Manager of the family. As the 2nd plaintiff has not filed the suit within 3 years, the younger brothers, who are the plaintiffs 3 and 4, could not also file the suit as they incur the disability under Section 7 of the Limitation Act. Section 7 of the Limitation Act reads as under:-
"Disability of one of several persons:- Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability was ceased.
Explanation I:- This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.
Explanation II:- For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property."
As the 2nd defendant is the eldest male member and the Manager of the Hindu undivided family, he shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family and when he has not chosen to file his suit within a period of three years from the date of attaining majority, the said disability would extend to the other younger members of the joint family also and therefore, they are barred from bringing the suit.
15.Reliance is placed on the decision of a Full Bench of this Court, in the case of Doraiswami Sirumadan Vs. Nondisami Saluvan (1913-25-MLJ-405 = ILR-32-Madras-118-FB), wherein, on the date of the institution of the suit, the 1st plaintiff was 23 years old and the 2nd plaintiff was 20 years old. Their case was that the suit was not barred by limitation as it was brought within 3 years of the 2nd plaintiff attaining the age of majority. But, the Full Bench held that the claim being a joint claim and the suit having been brought more than 3 years after the attainment of majority by the elder brother (who was the Manager of the joint family, competent to give discharge), the claim was barred by limitation even in respect of the share of the younger brother, who had not yet completed 21 years. The facts and the principles laid down in the said case are squarely applicable to the case on hand.
16.The court below rejected the claim of the plaintiffs 3 and 4, permitted the plaintiffs 1 and 2 to pay necessary court fee, as they have prayed for declaration of sale as null and void. Even the said order of the court below is not correct for the reason that the plaintiffs 1 and 2, not having filed the suit within a period of 3 years from the date of attainment of majority, the plaintiffs 3 and 4 are also prevented from filing a suit thereafter.
17.With regard to the question raised by the plaintiffs that they could file the suit within a period of 12 years from the date of alienation, the case of Vishwambhar & others Vs. Laxminarayanan (Dead) through LRs and another (2001-TLNJ-SC-3 = 2001-3-CTC-316) would be the answer. In that case, the alienation was not supported by legal necessity and the guardian also did not obtain any prior permission of the court. In the said circumstances, a question was raised, whether the alienations are void or voidable? The Supreme Court has observed that "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 immovable property of the minor. In Sub Section (3) of the said Section it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of sub section (2) is voidable at the instance of the minor or any person claiming under him.......If in law the plaintiffs were required to have the sale deed 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 no.2, Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff no.1 attained majority on 20th July 1978. Though the suit was filed on 30th November 1980, the prayer seeking setting aside of the sale deeds was made in December 1985. Art.60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority." As the plaintiffs have not challenged the sale within a period of 3 years from the date of attainment of majority, they cannot question the sale, as contended by them i.e. 12 years from the date of the sale of the property, as Art.60 of the Limitation Act, alone is applicable and not Art.65. As such, the plaintiffs' claim is barred.
18.Yet another question arises in this case is, whether as against the order of rejection of a plaint, whether a Revision would lie?
19.Order 7 Rule 11 CPC deals with 'rejection of plaint' and the reasons set forth in the said order are only illustrative and not exhaustive. Order 7 Rule 11 (d) states, "Where the suit appears from the statement in the plaint to be barred by any law, it should be rejected." The rejection of plaint amounts to a decree. Section 2(2) CPC states, "decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include...." This section does not say rejection of plaint under Order 7 Rule 11 CPC. Rejection of plaint for any other reason found in Order 7 Rule 11 CPC would also come within the definition of a 'decree' and therefore, an Appeal alone would lie and not a Revision.
20.In the case of Nesammal and another Vs. Edward and another , (S.S.Subramani, J), relied upon the case of Lakshmanan Chetty Vs. Lakshmanam Chettiar and others (AIR-1915-Madras-483). In that case, their Lordships held that the provisions of Order 7, Rule 11 CPC are not exhaustive. In that case, the suit was filed by the next friend on behalf of the minor. The court found that the litigation is not for the benefit of the minor and rejected it. The decision was confirmed by this Court. The said decision was followed in the case of R.Shanmughavelu Pillai Vs. R.Karuppannan Ambalm (AIR-1976-Madras-289). In para 7 of the judgement, his Lordship relied upon an earlier judgement of this court (FB) - Satyanarayanacharlu Vs. Ramalingam, wherein it is stated that "Where an order directing payment of additional court fee in a suit is not complied with and it is followed by an order rejecting the plaint, a revision against the later order would not be maintainable and the proper remedy is only by way of an appeal against the decree." By referring to the above said decisions, the learned judge has observed that the revision is not maintainable, since the order rejecting the plaint is a decree under CPC. It is also observed that directions can be given by this court as well as the court in which the suit is filed not to entertain the suit, if on reading the allegations in the plaint it reveals that the same is abuse of process of law.
21.In the case of K.S. Geetha Vs. Stanleybuck and others (2002-2-MLJ-823), (A.S. Venkatachalamoorthy, J.), the learned single judge, after referring to several decisions, in para 9, has observed that "Order 7 Rule 11 of CPC deals with rejection of plaint. Once the plaint is rejected, then obviously nothing is pending before the Court. That order is formal expression of an adjudication, which so far as regards the Court expressing it, conclusively determines the rights of the parties. In fact, Section 2 of CPC which defines the term decree specifically states that the decree shall be deemed to include rejection of the plaint. Section 96 of the Code deals with appeal from original decrees. The claim of the respondents is that the order rejecting plaint being the decree by the trial court, the only remedy, if plaintiff is aggrieved is, by way of filing an appeal and not by filing revision petition."
22.In view of the decisions referred to above and on perusal of the order passed by the trial court that the order rejecting the plaint is a decree and that therefore, as against the said decree, no revision would lie.
23.It is further seen that the suit was also not filed within 3 years from the date of attainment of majority of the plaintiffs, the plaintiffs do not have any claim in the matter and the order passed by the trial court, rejecting the plaint, as against the plaintiffs 1 and 2 would also applicable to the plaintiffs 3 and 4 also.
24.In the said view of the matter, the civil revision petition is dismissed and the trial court is directed not to take up the suit for trial, as the claim made by the plaintiffs is barred by limitation and therefore, the entire plaintiffs' claim and right are rejected, as the plaintiffs claim is not sustainable. Consequently, connected CMP is also dismissed. No costs.