Nilakantan Thampi v. Kunjukrishna Pillai — 1949 DIGILAW 15 (KER)

JUDGMENT : S. Krishna Pillai, J. These appeals arise out of a suit instituted by a junior member of a Marumakkathayam Tarwad for cancellation of a court sale and a private sale of Tarwad properties and for recovery of the same with mesne profits. The suit was allowed and appeal Suit No. 487 of 1120 is brought by the court auction-purchaser and Appeal Suit No. 544 of 1120 by the alienee. The second defendant is the mother, the third and fourth defendants and the plaintiff are her sons in the order of seniority. The plaint properties consisting of three items were acquired in the name of the mother, as claimed by the plaintiff with sub-Tarwad funds. Over items 1 and 2 the sub-tarwad claim is only of a mortgage right and over item 3, which is only five cents out of a larger area of thirty-five cents, the sub-tarwad claim is for the entire rights. It was contended by the defendants in the lower court-appellants here-that the properties were the self acquisitions of the second defendant. The finding went against them and, in appeal before us, its correctness was not challenged. These appeals must therefore be dealt with on the footing that the plaint properties are the properties of the sub-tarwad consisting of the second defendant mother and her children, the third and fourth defendants and the plaintiff. 2. It was strenuously contended before us by the appellants’ learned Advocate that the suit in respect of the court sale (item 3) is barred by limitation and that the decree in respect of items 1 and 2 is unsupportable as it stands. We shall first deal with A.S. No. 487 of 1120 in which the question of limitation is raised. In order to appreciate the question of limitation a few more facts have to be stated. On 2.12.1086 the second defendant executed Ext. IX hypothecation deed on which Ext. E decree was obtained on 24.12.1093. In execution the five cents comprising item 3 were sold on 31.9.1105 and delivered over to fifth defendant on 31.3.1108 after over-ruling an objection raised by the third defendant in execution (vide Ext. XX sale certificate and Ext. F execution diary). The present suit was filed on 15.10.1114 over nine years after the date of sale and six years after the date of delivery. XX sale certificate and Ext. F execution diary). The present suit was filed on 15.10.1114 over nine years after the date of sale and six years after the date of delivery. The plaintiff claimed that he had three years’ time to file the suit after attaining majority. On hearing Counsel for both sides we are inclined to think that the appellants must succeed on the question of limitation. 3. The bond was executed by and the decree obtained against the second defendant who was the sole adult member of the sub-tarwad on the date of the decree. The third defendant attained majority in the year 1099, the forth defendant in the year 1102 and the plaintiff in the year 1111, but neither defendant 3 nor defendant 4 ever cared to file any suit and the plaintiff himself has waited for three years before he instituted the suit in the year 1114. It is in the light of these facts that we have to determine the question of limitation. 4. Art. 9 of the Travancore Limitation Act prescribes only a period of one year for cancellation of a sale deed and the starting point of limitation is the date of confirmation of the sale. The provision is the same under the Cochin Limitation Act and the Indian Limitation Act. Hence any suit instituted for cancellation of the plaint sale should have been filed before the year 1107. The excuse offered in this case for waiting for seven years and more is that the plaintiff, who was a minor on the date of sale, attained majority only in the year 1111 and that under the Act he had a waiting period of three years thereafter. This contention cannot be accepted as it is based on a clear misconception of law. 5. S. 6(1) of the Limitation Act is clear on the point. The relevant portion of the section reads as follows:- “Where a person entitled to institute a suit ..... is at the time from which the period of limitation is to be reckoned, a minor ..... he may institute the suit ....... within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefore in the third column of the First Schedule”. S. 9 is not to be interpreted as giving a waiting period of three years in every case. he may institute the suit ....... within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefore in the third column of the First Schedule”. S. 9 is not to be interpreted as giving a waiting period of three years in every case. It is restrictive of the period allowable under S. 6. It merely provides that nothing in S. 6 shall be deemed to extend for more than three years from the cessation of the disability the period within which any suit must be instituted. The period allowed is only that which is provided in the Schedule, but where such period is more than three years it will be restricted to three years commencing from the date of attaining majority. Thus where a suit for cancellation of a court sale has to be instituted within one year a minor has only one year to sue after attaining majority. See also the decisions in Chokka Talavar v. Siva Subramonia Pillai I.L.R. 17 Madras 316, Janaki Ram Vilas Nidhi v Official Receiver, Coimbatore A.I.R. 1925 Madras 328, and Pala Singh v. Karnama, A.I.R. 1918 Lahore 182. 6. The respondent’s learned Counsel advanced several arguments in support of his contention that the suit was within time. According to him the period of limitation for cancellation of a court sale which is void is six years under the residuary Art. 109 and not one year as provided in Art. 9 which must be confined to voidable sales. There are some decisions both here and elsewhere in India which must be relied on as lending support to the above contention, but the uniform course of decisions under the Travancore Limitation Act is otherwise. The decision in Lekshmadu v. Ramudu, A.I.R. 1939 Madras 667, is typical of the former and the latest Full Bench decision of the Travancore High Court in Bhagavathy Pillay v. Srikantan Nair, 1949 T.L.R. 14, is typical of the latter. Some of the earlier rulings of the Travancore High Court are the decisions in Cheeru Ichira v. Kuchu, 12 T.L.R. 122, Sankaralingam v. Ramaswamy, 14 T.L.R. 32, Chonnaru v. Mani 10 T.L.J. 299, and Pappy Amma v. Janaky Amma, 19 T.L.J. 829. Some of the earlier rulings of the Travancore High Court are the decisions in Cheeru Ichira v. Kuchu, 12 T.L.R. 122, Sankaralingam v. Ramaswamy, 14 T.L.R. 32, Chonnaru v. Mani 10 T.L.J. 299, and Pappy Amma v. Janaky Amma, 19 T.L.J. 829. The reason stated in these decisions rests primarily on the wording of Art. 9 of the Limitation Act as compared with its counter-part Art. 12 of the Indian Limitation Act, Art. 9 of the Travancore Limitation Act provides that for a suit to set aside a sale in execution of a decree of a civil court by whomsoever brought on any ground, the period of limitation is one year from the date of confirmation of the sale. The Article also provides for an exception which is apparently the sole exception contemplated by the Legislature, that is, where a suit is brought on the ground that the judgment-debtor or his family or Tarwad had no right, title and interest in the property sold. Art. 12 of the Indian Limitation Act provides for a period of one year without any of the specifications, comprehensiveness and exceptions contained in the Travancore Article. The difference in phraseology between the two Acts is at once striking and, in the interpretation or application of the law, due weight will have to be given to it. So construed, any suit for cancellation of a court sale, whatever be its grounds, will have to be governed by the one year’s rule the only exception being that provided for by the Article itself. As a special provision designed to deal with suits brought on behalf of Marumakathayam Tarwads its significance and effect cannot be minimised. A junior member’s suit for cancellation of a court sale may be on any one of the several grounds usually advanced in such cases, namely want of consideration, want of necessity, want of proper representation, defect of parties, errors in execution etc. The comprehensive language employed in Art. 9 would indicate that the one year’s rule must apply in all these cases. The comprehensive language employed in Art. 9 would indicate that the one year’s rule must apply in all these cases. In Chonnaru v. Mani, 10 T.L.J. 299 referred to above, it was observed by the learned Judges as follows:- “So long as the ground on which the court sale is sought to be cancelled are such as would fall within Art. 8 it is quite immaterial whether the suit was brought by one who was a party to the litigation or who was not a party to it or who though made a party to it is found to have been not properly impleaded”. In the decision in Bhagavathy Pillay v. Srikantan Nair, 1949 T.L.R. 14 referred to above, the law was laid down by the Full Bench that no member of the judgment-debtor’s Tarwad or family is entitled to seek cancellation of the sale of property after the lapse of one year except on the ground that the judgment-debtor had not interest in the property sold. It also held that the expression “any ground” is wide enough to include even the invalidity of the decree itself. So applied, the several grounds mentioned in the plaint in this case entitling the plaintiff to a decree cancelling the court sale, must be held to fall within the words “any ground” occurring in Art. 9 and the suit held to be barred. 7. There is no reason to hold that if a suit is for cancellation of a court sale which is in the eye of law void, it should have six years and not one year. The real distinction appears to be that, in the case of void sales, no suit at all has to be instituted for cancellation of the sale. The distinction between void and voidable transactions is pointed out in Wharton’s Law Lexicon as follows:- “There is this difference between these two words; void means that an instrument or transaction is so nugatory and ineffectual that nothing can cure it; voidable, when an imperfection or defect can be cured by the act or confirmation of him who could take advantage of it” Where, therefore, a sale is shown to be void as understood in law, it must necessarily follow that no suit is necessary to set it aside. The utmost that may be necessary in such a case is that the party should have a declaration that the sale is void. That will not be a suit for cancellation of a court sale falling within the mischief of Art. 9; but where possession has passed on the strength of the court sale and it cannot be recovered without cancellation of the sale, the declaration will not be of any avail to the plaintiff. In the case the plaintiff seeks to have the court sale set aside and recover the property on the strength of that relief. This can be allowed only if the suit is brought within one year as provided in Art. 9. The decision in Nilakanta Pillai v. Govinda Pillai, 29 T.L.J. 1025, is relied on by the respondent’s learned Counsel as justifying his position. He contended that the plaintiff’s sub-tarwad consisted not only of his mother (second defendant) and her children, but the second defendant’s mother and mother’s children in which case the decree and all proceedings subsequent thereto including the sale will be void for the simple reason that the proper parties were not impleaded. This contention does not appear to be well founded. The plaint property was acquired in the name of the second defendant and presumably with funds supplied by her husband. The fact that the second defendant allowed her mother to take part in the execution of certain deeds comprising in these properties also does not appear to be sufficient to rebut this presumption. The position in law therefore would be that it belongs to the sub-tarwad of the second defendant and her children. In such case the contention that the decree is contrary to S. 31 of the Nayar Act of 1100 (S. 25 of the repealed Act of 1088) cannot stand. It does not apply for another reason also. In Nilakanta Pillai v. Govinda Pillai. 29 T.L.J. 1025, the plaintiff’s suit was for redemption of a mortgage. One of the defendants contended that he had a court sale in his favour in execution of a decree which was proved to be contrary to S. 25 of the Nayar Act. Redemption was granted on the ground that the plaintiff had not to seek to cancel the court sale but only to ignore it as being void in law. The present case is different. Redemption was granted on the ground that the plaintiff had not to seek to cancel the court sale but only to ignore it as being void in law. The present case is different. Without cancellation of the court sale the plaintiff cannot be granted any relief. 8. For the above reasons we uphold the appellant’s contention and dismiss the plaintiff’s suit in respect of item 3 as time barred. Appeal allowed.