Narayan Vs. Babasaheb & Ors, on 5th April, 2016, Supreme Court of India – Judgement

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REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3486 OF 2016
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 15966 OF 2012

NARAYAN …APPELLANT

VERSUS

BABASAHEB & ORS. …RESPONDENTS

J U D G M E N T

N.V. RAMANA, J.

Leave granted.

2. The appellant is before us aggrieved by the Judgment and decree
passed by the High Court of Bombay, Bench at Aurangabad, dated 5.10.2011 in
Second Appeal No.213 of 2004 wherein and whereby the High Court has
confirmed the judgment and decree of the Courts below.
3. This Court, while issuing notice on 27th April, 2012, has passed the
following order:
“Delay condoned.

Issue notice returnable in ten weeks limited to the question as to whether
the Suit filed in the year 1989 with regard to the sale deed dated January
20, 1982 was within limitation.

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Dasti, in addition to the ordinary process.
In the meanwhile, the parties shall maintain status quo with regard to the
property which is subject matter of the sale deed dated January 20, 1982.”
4. In the light of the order passed by this Court on 27.04.2012, we are
confining ourselves only to the question as to whether the Suit filed in
the year 1989 in respect of a sale deed dt. 20.01.1982 is well within
limitation or barred by limitation.
5. The appellant before us is the 1st defendant in the Suit.
Respondents 1 to 5 are the plaintiffs and the 6th respondent is defendant
no.2. For the purpose of convenience, the parties are referred as they are
before the trial Court.
6. The brief facts which are necessary for proper appreciation of the
dispute between the parties in nutshell are as follows:
The plaintiff/respondents 1 to 5 filed Reg. Civil Suit No.12 of 1989
against the 1st defendant (appellant herein) and 2nd defendant (respondent
No. 6). The Suit was filed seeking the relief of partition and for a
declaration that the sale deed dated 20.01.1982 and 28.11.1988 executed by
defendant No.2 in favour of defendant No.1 are not binding and to set aside
the same and also for recovery of possession of the Suit schedule property
and for mesne profits.
7. The brief averments of the plaint are that the plaintiffs 1 and 2 are
the real brothers and the 2nd plaintiff, being minor, is under the
guardianship of plaintiff No.1. Plaintiff Nos.3 to 5 are the real sisters,
whereas defendant No.2 is their mother and the defendant No.1 is the
purchaser in whose favour defendant No.2 alleged to have executed the sale
deeds dated 20.01.1982 and 28.11.1988 which are sought to be set aside and
defendant No.3 is another sister who is married about 12 years back and
whose whereabouts are not known to the plaintiffs. The 3rd defendant is
later impleaded.
8. It is the specific case of the plaintiffs that their father is the
original owner of the Suit schedule property which is ancestral property.
He died in the year 1972 leaving behind him his two sons, four daughters
and the widow i.e. the 2nd defendant. After the death of their father, the
2nd defendant, who is alleged to be a person of loose character, left the
matrimonial home and married one Begaji. The father of the plaintiffs,
during his lifetime, performed the marriage of plaintiff Nos.3 and 4 and
the marriage of the 5th plaintiff was performed by the1st plaintiff. The
2nd defendant, without there being any legal necessity, has alienated the
property for a meager amount of Rs.6,000/- when the surrounding lands were
fetching an amount of Rs.15,000/-. At the time of execution of the second
sale deed, though the 1st plaintiff was major, he was shown as minor. It
is stated that as the 2nd defendant was never taking care of them at any
point of time and staying with some other person, she cannot be termed as a
guardian. The 1st defendant, without paying any consideration, in active
connivance with the 2nd defendant, has got the sale deed registered with an
intention to defraud the interest of the minors. It is further pleaded
that as on the date of execution of the second sale deed, the land fetches
an amount of Rs.20,000/- per acre, apart from that as the 1st defendant is
in possession of the property, they are entitled to mesne profits at the
rate of Rs.2,000/- per annum from the date of taking over possession by the
1st defendant till the date of recovery of possession.
9. The defendants filed the written statement resisting the claim of the
plaintiffs by denying the averments in the plaint and put forth their case
stating that the 2nd defendant sold the Suit schedule property for the
purpose of legal necessity. She had the responsibility of getting her
daughters married, maintaining the large family and under those
circumstances she was compelled to sell the property and further the
consideration received was also adequate and as such the sale deeds are
binding on the plaintiffs. The 2nd defendant took the objection that one
of her daughters was not made as a party to the Suit as such Suit requires
to be dismissed for non-joinder of proper and necessary parties and
accordingly sought for dismissal of the Suit.
10. Later the 3rd defendant was arrayed as a party to the Suit and in
spite of the best efforts by the plaintiffs, the notice could not be served
and it was reported that her whereabouts are not known for more than ten
years. No written statement was filed on her behalf.
11. The trial Court, after a full-fledged trial, has come to the
conclusion that under Section 11 of the Hindu Minority and Guardianship
Act, 1956 (for short ‘the 1956 Act’) the sale made by the de facto guardian
of the minor is void ab initio and is incapable of subsequent clarification
in the absence of evidence to show that the transfer is made for legal
necessity. Hence, the sale deeds are not binding on the plaintiffs and
accordingly decreed the Suit holding that the plaintiffs are entitled to
partition and separate possession of their share. Plaintiffs 1 and 2 are
entitled to 7/12th share and plaintiffs 3 to 5 are entitled to 1/24th each
and the 2nd defendant is entitled to 7/24th share and plaintiffs are
entitled for mesne profits.
12. Assailing the said judgment and decree, the 1st defendant has filed
RCA.No.120/1991 on the file of the District Judge, Parbhani. The issue of
limitation was raised by the defendants before the 1st appellate court
contending that the Suit is barred by limitation as per Article 60 of the
Limitation Act, 1963 (for short ‘the Act’) and as on the date of filing of
the Suit, except the 2nd plaintiff (Waman), all other plaintiffs are majors
and hence the Suit ought to have been instituted within three years as
envisaged by Article 60 of the Act. It is further urged that the legal
disability of 2nd plaintiff (Waman) does not entitle other plaintiffs to
institute the Suit after the prescribed period in the Act and relied upon
Section 7 of the Act. As per the cause title in the plaint, as on the date
of filing of the Suit, the 1st plaintiff was aged 20 years, the 2nd
plaintiff was minor and plaintiffs 3, 4 and 5 were aged 29, 27 and 25 years
respectively. Basing on the contentions, the appellate Court has come to
the conclusion that Article 60 of the Act is not applicable to the facts of
the case as the 2nd defendant is not the guardian appointed by the Court.
Therefore, Article 109 of the Act, which prescribed 12 years is applicable
where the alienation made by the father of the ancestral property by the
Hindus who are governed by the Mitakshara law and hence the Suit filed in
the year 1989 is well within limitation. But however, the appellate court
has modified the decree to the extent that the 1st defendant is entitled to
the share of the 2nd defendant.
13. The unsuccessful and unsatisfied 1st defendant has approached the
High Court of Bombay, Bench at Aurangabad by way of Second Appeal
No.223/2004. The High Court has dismissed the appeal holding that Article
109 of the Act applies to the alienation made by the mother and Article 60
of the Act does not apply to the facts of the case and its application
altogether is in a different eventuality and Section 109 of the Act applies
to the facts of the case and the Suit is well within limitation. Against
the said order, the present appeal is filed before this Court.
14. We are not inclined to go into any of the factual issues or otherwise
which has attained finality and we are restraining ourselves to the limited
question whether the Suit filed in the year 1989 for setting aside the sale
deed dated 20.01.1982 is governed under which Article of the Limitation Act
and whether the same is within limitation or not?
15. We have heard the learned counsel on either side and given our
anxious consideration to their submissions, to the relevant provisions of
the Act and the material placed before us.
16. It is argued on behalf of the appellant/1st defendant that a
challenge to the sale deed dated 20.01.1982 is barred by limitation as
Article 60 of the Act applies to the facts of the case and the limitation
is 3 years. It is contended by him that the Courts below have erroneously
applied Article 109 and further Article 109 applies to cases where
alienation was made by the father but in the case on hand, alienation was
made by the mother. He further submitted that the interpretation of
Articles under the Act is against the settled principles of interpretation
of statutes and when a provision is provided exclusively which deals with
alienation made by father, the Courts below were not right in applying the
same to the alienation made by the mother. It is for the first time
contended before the Court that Article 110 of the Act applies but the
provision will be applied only once the sale deed dated 20.01.1982 is set
aside and sought for allowing the appeal.
17. On the other hand, the learned counsel appearing on behalf of the
respondents/plaintiffs has urged that Article 60 is applicable to cases
where guardian sells exclusive property of minor but not joint family
property. Further the residuary clause has no application as it will apply
only when there is no other Article provided under the Act and he further
stated that the case of the plaintiffs squarely falls under Article 110 of
the Act and as such the Suit filed by the plaintiffs is well within the
limitation and sought for dismissal of the appeal.
18. In the light of the submission made by the counsel, before we proceed
to deal with the main issue, it is appropriate to have a look at Section 7,
Articles 60, 109, 110 and 113 of the Act which read as follows:
Section 7 : 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 has 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 purpose 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.

Articles 60, 109, 110, 113 of the Act:-

|60. To set aside a | | |
|transfer of property| | |
|made by the guardian| | |
|of a ward |Three years |When the ward |
| | |attains majority. |
|(a) by the ward who | | |
|has attained | | |
|majority; |Three years | |
| | | |
|(b) by the ward’s | | |
|legal |Three years | |
|representative- | |When the ward |
| | |attains majority. |
|(i) When the ward | | |
|dies within three | | |
|years from the date | | |
|of attaining | |When the ward dies. |
|majority; | | |
| | | |
|(ii) When the ward | | |
|dies before | | |
|attaining majority. | | |
| | | |
|109. By a Hindu |Twelve years |The date of the |
|governed by | |dispossession or |
|Mitakshara law to | |discontinuance. |
|set aside his | | |
|father’s alienation | | |
|of ancestral | | |
|property. | | |
| | | |
|110. By a person | |When the exclusion |
|excluded from a |Twelve years |becomes known to the|
|joint family | |plaintiff. |
|property to enforce | | |
|a right to share | | |
|therein. | | |
| | | |
|113. Any Suit for |Three years |When the right to |
|which no period of | |sue accrues. |
|limitation is | | |
|provided elsewhere | | |
|in this Schedule. | | |

19. Before we venture to discuss the applicability of Section 7 of the
Act which deals with disability of one of several persons, we have to
bestow our attention to the Articles which are applicable to the facts of
the case.
20. In the case on hand, there cannot be any dispute about the fact that
after the death of the 2nd defendant’s husband automatically the 2nd
defendant becomes a natural guardian to her children. On this, the finding
of the lower appellate court, that as she was not the guardian appointed on
the day to alienate the Suit schedule property therefore Article 109 of the
Act applies which gives 12 years limitation from the day the alienee takes
possession of the property and the alienation made by the father of
ancestral property of the Hindus who are governed by Mitakshara law, and
that the Suit is well within limitation, cannot be sustained.
21. Even the High Court has proceeded on the same notion that Article 60
of the Act applies where the ward files a Suit after attaining majority,
for setting aside transfer of property made by his guardian when he was
minor.
22. The High Court has further observed that under Article 109 of the
Act, a long rope is given to file the Suit to the plaintiff than a Suit
filed by the plaintiff under Article 60 of the Act and the case of the
plaintiff strictly falls under Article 109 of the Act.
23. A bare reading of Section 8(1) of the 1956 Act indicates that it
empowers the natural guardian to do all the acts which are necessary or
reasonable or proper for the benefit of the minor. Section 8(2)(a) of the
1956 Act prescribes that either the purchaser or the seller should obtain
the permission of the District Court to transfer the property by sale.
24. Hence, the present transaction on the face of it is in contravention
of the mandatory provisions laid down by the 1956 Act.
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.
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.
32. In the case on hand, the 1st plaintiff was 20 years old, the 2nd
defendant was still a minor and the plaintiffs 3, 4 and 5, who are married
daughters, were aged 29, 27 and 25 respectively, on the date of institution
of the Suit in the year 1989. As per Explanation 2 of Section 7, the
manager of a Hindu undivided family governed by Mithakshara law 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.
In this case, plaintiffs 3 to 5 though majors as on the date of
institution of Suit will not fall under Explanation 2 of Section 7 of the
Limitation Act as they are not the manager or Karta of the joint family.
The first plaintiff was 20 years old as on the date of institution of the
Suit and there is no evidence forthcoming to arrive at a different
conclusion with regard to the age of the 1st plaintiff. In that view of the
matter, the Suit is instituted well within three years of limitation from
the date of attaining majority as envisaged under Article 60 of the Act.
33. Hence, in view of the above discussion, as the appeal is devoid of
merits, we deem it appropriate to dismiss the appeal and accordingly the
appeal is dismissed but in the circumstances without costs.

…………………J. (MADAN B.LOKUR)

…………….J. (N.V.RAMANA)

New Delhi,
April 5, 2016
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