2016 (4) TMI 1291

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....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 m....

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....ining 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 pla....

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.... 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 deal....

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....aining majority.         Three years       Three years       Three years         When the ward attains majority.     When the ward attains majority.     When the ward dies. By a Hindu governed by Mitakshara law to set aside his father's alienation of ancestral property. Twelve years The date of the dispossession or discontinuance. 110. By a person When the exclusion excluded from a joint family property to enforce a right to share therein. Twelve years becomes known to the plaintiff. 113. Any Suit for which no period of limitation is provided elsewhere in this Schedule. Three Years When the right of sue accrues   9. 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 ....

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....ief 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 give....