Limitation Period for suit for setting aside sale deed: Whether Article 60 or Article 109 of the Limitation Act is applicable.
Civil Appeal No. 3486 of 2016
Bench: Justice Madan B. Lokur; Justice N. V. Ramana
Case Brief: In the facts of the case, Respondent no. 1 to 5 being Plaintiffs filed a suit against the Appellant herein- Defendant no. 1 and Respondent no. 6- Defendant no. 2, seeking the relief of partition and for the declaration that the sale deed (1982) and Sale deed (1988) as were executed by the Defendant no. 2 in favour of Defendant no. 1 were not binding and for setting aside them and also for possession of disputed property and for mesne profits. All the plaintiffs are real brothers and sisters and Defendant no. 2 is their mother and the Appellant is the purchaser in whose favour the impugned sale deeds were executed. Plaintiffs claimed that their father being original owner of the disputed property which being ancestral property, he died in the year 1972, leaving behind the plaintiffs and Defendant no. 2. Plaintiff alleged that their mother after the death of their father left matrimonial home and married one Begaji. And this Defendant no. 2 allegedly alienated the disputed property for the meagre amount of Rs. 6000 only. In the second sale deed, the land fetches an amount of Rs. 20000 per acre, and also as the appellant is in possession of the property, they claimed mesne profit at Rs. 2000 per annum. Trial Court decided the suit in favour of plaintiffs and held that plaintiffs and defendant no. 2 is entitle to the respected shares in the disputed property, and plaintiffs are also entitled to mesne profits. However, disagreeing the said decision Appellant moved to the first Appellate Court, where he claimed issue of limitation, he claimed the suit is barred by limitation as per Article 60 of the Limitation Act, 1963. However, the first Appellate court decided that the appellant is entitled to the share of Defendant no. 2. Further, High Court in the second appeal also dismissed the claim of Defendant no. 2. Thus, the issue of limitation is brought before this bench, which decided not to go into factual issues. The bench sought to decide that the whether the suit filed in 1989 for setting aside the sale deed made in 1982 is governed under which article of the said Act. The bench, sought to decided that when quondam minor plaintiff challenging the transfer of an immovable property made by his guardian in contravention of Section 8(1)(2) of the Hindu Minority and Guardianship Act, 1956 and who seeks possession of property can file the suit only within the limitation prescribed under the Article 60 of the Act and Article 109 is not applicable to the facts of the case. Thus, High Court and even Trial Court erred in applying Article 109 of the Act. Thus, there was only 3 years limitation, as such the bench further sought to see when there are several plaintiffs, what is the reckoning date of limitation? A reading of Section 7 of the Act 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. Here in the case, which is governed by Mithakshara Law, the explanation 2 of the Section 7 of the Act, says the manager of a Hindu undivided family shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property. However, bench observed that in this case, plaintiffs though majors as on the date of institution of Suit will not fall under Explanation 2 of Section 7 of the Act of 1963 as they are not the manager of the joint family. As such, the Suit is observed as instituted well within 3 years of limitation from the date of attaining majority as under Article 60 of the Act. The appeal is as such dismissed.
Read the Judgement: Narayan Vs. Babasaheb & Ors