Vishwambhar
& Ors Vs. Laxminarayan [2001] Insc 328 (20 July 2001)
D.P.
Mohapatra & Doraiswamy Raju D.P. Mohapatra, J.
One Dattatraya
Agnihotri died in April 1961 leaving behind his widow Laxmibai, sons Vishwambhar
and Digamber, and daughters, Indumati, Usha, Mangla and Shobha. The suit land
was ancestral property in the hands of Dattatraya Agnihotri. At the time of
death of their father Vishwambhar and Digmber were minors. Laxmibai was
managing the properties left by Dattatraya Agnihotri as guardian of the minors.
On 14.11.1967 Laxmibai executed a sale deed in favour of Laxminarayan
transferring 4 acres 13 guntas of the suit land for the sum of Rs.6,000/- and
delivered possession to the purchaser. Again on 24.10.1974 she executed another
sale deed in favour of Vijay Kumar son of Laxminarayan in respect of 4 acres 13
guntas, a part of the suit land for the sum of Rs.9000/- and delivered
possession to the purchaser. The sale deeds were executed without any legal
necessity and without obtaining permission of the Court as provided under
Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter
referred to as the Act).
Digamber
attained majority on 5th
August 1975 and Vishwambhar
became major on 20th
July, 1978. Thereafter
they filed the suit RCS No.5/81 in the Court of Civil Judge (Junior Division) Jalna,
in the State of Maharashtra impleading the purchasers Laxminarayan and Vijay
Kumar as defendants 1 and 2 respectively, their mother Laxmibai as defendant
no.3 and their sisters, Indumati, Usha, Mangla and Shobha as defendant nos. 4
to 7 respectively. The plaintiffs pleaded that the two sale deeds executed by
defendant no.3 on 14.11.1967 and 24.10.1974 in favour of defendant nos.1 and 2
are not binding and operative on the legal rights of plaintiff no.1, and prayed
that the said sale deeds be set aside to the extent of his share and the suit
for possession of the land under survey no.515-Area 8 acres 26 guntas situated
at Jalna bearing the local name Girdharchamala to the extent of 4/7th share be
decreed with costs against defendant nos. 1 and 2 and the plaintiffs be put in
actual possession of their share by dispossessing the said defendants from the
land, etc.
The
gist of the case pleaded by the plaintiffs was that their mother as guardian
executed the above sale deeds without any legal necessity and without sanction
of the Court. The transfers made by her were void ab initio and not binding on
the plaintiffs and they are entitled to ignore the same altogether. In para 4
of the plaint it was averred the transaction, therefore, is liable to be
treated as of no legal validity, right from its inception and the defendant
no.1 never got any title to it under the law. Averment to the same effect was
made in respect of the sale deed dated 24.10.1974 in favour of defendant no.2
in paragraph 5 of the plaint. The plaintiffs pleaded that the purchasers are
trespassers on the suit land; that the plaintiffs have a right to recover
possession of the suit land from the purchasers within 12 years which they have
done. Reliance was placed on Article 65 of the Limitation Act. In para 7 of the
plaint it was asserted that the suit has been filed within the period of
limitation with reference to the suit transaction for the relief of recovery of
possession by way of partition of the suit land. It is relevant to state here
that the relief of declaration that the sale deeds executed by the defendant
no.3 in favour of defendant nos. 1 and 2 are invalid and inoperative and that
the said sale deeds be set aside, were added in the plaint subsequently by
amendment.
The
contesting defendants 1 & 2 filed written statements pleading, inter alia,
that the Hindu Minority and Guardianship Act is not applicable in the case
since the alienation has been made by the mother as natural guardian of the
minors. She was also the manager of the joint family property. In such a case,
according to the defendants, lack of sanction under section 8 of the Act is not
fatal to the alienations. The defendants further averred that the alienations
were made for legal necessity, for maintenance of the plaintiffs, for meeting
the marriage expenses of defendant nos. 4 to 7, for satisfying antecedent debts
etc. They also took the plea of limitation since the suit was filed beyond 3
years after the minors attained majority. They prayed for dismissal of the suit
with costs. Defendants 3 to 7 supported the case of the plaintiffs.
The
trial court by judgment dated 6.12.1985 decreed the suit of the plaintiff no.1
against the defendants and dismissed the claim of plaintiff no.2. The Court
declared that the sale deeds are not binding on plaintiff no. 1 to the extent
of his share in the suit land and that plaintiff no.1 is entitled to recover 2
acres 11 guntas as his share from the suit land. Defendants 1 and 2 were
ordered to deliver possession of the said property to the plaintiff no.1.
Being
aggrieved by the judgment and decree dated 6.12.1985 the defendants 1 and 2
preferred RCA No.80/1986 in the Court of Additional District Judge, Jalna. The
appellate court by the judgment dated 21.6.1995 allowed the appeal and set
aside the judgment and decree passed by the trial court and dismissed the suit.
Thereafter
the plaintiffs filed the second appeal no.350/96 in the High Court of Bombay
challenging the judgment and decree of the lower appellate court, which was
dismissed summarily holding that no substantial question of law was involved in
the second appeal and that there was no merit in the second appeal. The said
judgment is under challenge in this appeal filed by the plaintiffs and
defendant nos. 3 to 7 by special leave.
The
learned counsel appearing for the appellants contended that the High Court
erred in dismissing the second appeal filed by the plaintiffs. He also
contended that the first appellate court was in error in dismissing the suit
for recovery of possession. According to the learned counsel the Court should
have held that in view of the undisputed factual position that the sale deeds
were executed without obtaining prior sanction of the District Court and in
view of the concurrent findings of the trial court and the first appellate
court that the alienations were not supported by legal necessity the first
appellate court should have held that the alienations were void and it was not
necessary for the plaintiffs to file a suit to set aside the sale deeds or to
declare them invalid. The learned counsel submitted that the lower appellate
court failed to appreciate that Article 60 of the Limitation Act has no
application in the case.
On a
fair reading of the plaint, it is clear that the main fulcrum on which the case
of the plaintiffs was balanced was that the alienations made by their
mother-guardian Laxmibai were void and therefore, liable to be ignored since
they were not supported by legal necessity and without permission of the
competent court. On that basis the claim was made that the alienations did not
affect the interest of the plaintiffs in the suit property. The prayers in the
plaint were inter alia to set aside the sale deeds dated 14.11.1967 and
24.10.1974, recover possession of the properties sold from the respective
purchasers, partition of the properties carving out separate possession of the
share from the suit properties of the plaintiffs and deliver the same to them.
As
noted earlier, the trial court as well as the first appellate court accepted
the case of the plaintiffs that the alienations in dispute were not supported
by legal necessity. They also held that no prior permission of the court was
taken for the said alienations. The question is in such circumstances are the
alienations void or voidable? In Section 8(2) of the Hindu Minority and Guradianship
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. There is, therefore, little scope
for doubt that the alienations made by Laxmibai which are under challenge in
the suit were voidable at the instance of the plaintiffs and the plaintiffs
were required to get the alienations set aside if they wanted to avoid the
transfers and regain the properties from the purchasers. As noted earlier in
the plaint as it stood before the amendment the prayer for setting aside the
sale deeds was not there, such a prayer appears to have been introduced by amendment
during hearing of the suit and the trial court considered the amended prayer
and decided the suit on that basis. If in law the plaintiffs were required to
have the sale deeds 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. Article 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. Since the limitation started
running from the dates when the plaintiffs attained majority the prescribed
period had elapsed by the date of presentation of the plaint so far as Digamber
is concerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber.
The judgment of the trial court dismissing the suit was not challenged by him.
Even assuming that as the suit filed by one of the plaintiffs was within time
the entire suit could not be dismissed on the ground of limitation, in the
absence of challenge against the dismissal of the suit filed by Digambar the
first appellate court could not have interfered with that part of the decision
of the trial court. Regarding the suit filed by Vishwambhar it was filed within
the prescribed period of limitation but without the prayer for setting aside
the sale deeds. Since the claim for recovery of possession of the properties
alienated could not have been made without setting aside the sale deeds the
suit as initially filed was not maintainable. By the date the defect was
rectified (December, 1985) by introducing such a prayer by amendment of the
plaint the prescribed period of limitation for seeking such a relief had
elapsed. In the circumstances the amendment of the plaint could not come to the
rescue of the plaintiff.
From
the averments of the plaint it cannot be said that all the necessary averments
for setting aside the sale deeds executed by Laxmibai were contained in the
plaint and adding specific prayer for setting aside the sale deeds was a mere
formality. As noted earlier, the basis of the suit as it stood before the
amendment of the plaint was that the sale transactions made by Laxmibai as
guardian of the minors were ab initio void and, therefore, liable to be
ignored. By introducing the prayer for setting aside the sale deeds the basis
of the suit was changed to one seeking setting aside the alienations of the
property by the guardian. In such circumstance the suit for setting aside the
transfers could be taken to have been filed on the date the amendment of the
plaint was allowed and not earlier than that.
The
first appellate court has based its judgment on well accepted principles of law
and has given cogent reasons for not accepting the judgment of the trial court
decreeing the suit filed by Vishwambhar. The High Court rightly confirmed the
judgment of the first appellate court and dismissed the second appeal.
Thus,
this appeal being devoid of merit, is dismissed. But in the circumstances of
the case there will be no order for costs.
..J.
( D.P.
Mohapatra) ..J.
(Doraiswamy
Raju) New Delhi;
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