MUKHTYAR MOHAMMAD v. SAKHARAM — 1969 DIGILAW 76 (MP)

JUDGMENT : ( 1. ) THE defendant has preferred this second appeal. ( 2. ) THE plaintiffs father held Khasra No. 162, area 16. 66 acres, in occupancy rights. He transferred the field to the defendant for a consideration of Rs. 7000 under a registered sale-deed dated 25-6-1948 The plaintiffs filed the suit on 11-4-1962 challenging the alienation by their father and for possession of the property on the ground that the sale was not binding on them, it not being for legal necessity or for satisfying the antecedent debts of the father, or for the benefit of the estate. It was also urged that the antecedent debts, if any, were incurred by the father for immoral purposes and, as such, they were not binding on the sons. The plaintiffs claimed 4/5th share in the property. Till the date of the alienation the plaintiffs 2 to 4 were not born ; as such, alienation to the extent of one-half share alone could be challenged. This position is no longer in dispute. ( 3. ) THE defence was that the sale was valid, as it was for legal necessity, for payment of antecedent debts, as well as for benefit of the estate. It was s. A. . No. 64 of 1965 decided on 4-8-1969 (Jabalpur) from decree passed on 7-10-1964 by shri B. B. L. Shrivastava, Additional District Judge, East Nimar, Khandwa in C. A. No. 3-A of 1964 modifying the decree passed on 19-10-63 by Shri K. P. Chaturvedi, Civil Judge, Class I, burhanpur, in C. S. No. 44-A of 1962. also urged that the suit was barred by limitation. Under the Limitation Act (since repealed) such a suit was governed by Article 126 which prescribed a limitation of 12 years and under that Article the suit is within limitation. It was, however, pleaded by the defendant that the property in suit being an occupancy holding, the special period of limitation prescribed under Article 1 of the Second Schedule of the C. P. Tenancy Act applied and as the suit was not filed within three years prescribed under that article, the plaintiffs had lost their right of challenging the alienation. It was, however, pleaded by the defendant that the property in suit being an occupancy holding, the special period of limitation prescribed under Article 1 of the Second Schedule of the C. P. Tenancy Act applied and as the suit was not filed within three years prescribed under that article, the plaintiffs had lost their right of challenging the alienation. It was also urged that under section 104 of the C. P. Tenancy Act, the plaintiffs were not entitled to rely on sections 6 and 7 of the Limitation Act as those sections were specifically excluded in their application to the suits under Article 1 of the Second Schedule. ( 4. ) THE lower appellate Court found that the defendant succeeded in showing that out of the total consideration of Rs. 7000, only Rs. 1150 were utilised by the vendor in satisfaction of his antecedent debts. The amount of rs. 2500 alleged to have been utilised by the father of the plaintiffs in purchasing another field could not be said to have been utilised for the benefit of the estate. The lower appellate Court further held that out of Rs. 7000, only rs. 5500 were, in fact, paid by the defendant to the father of the plaintiffs and not the full consideration, the receipt of which was admitted by him before the Sub registrar. The lower appellate Court, on the question of limitation, held that the special limitation prescribed under the C. P. Tenancy act was not attracted to the kind of suit in question and that the suit was within limitation. The plea of the plaintiffs that the antecedent debts, if any, were incurred for immoral purposes was also negatived. ( 5. ) THE findings of the lower appellate Court that out of Rs. 7000 only rs. 5500 were paid to the father of the plaintiffs, that out of this amount, only rs. 1150 were utilised by him for paying his antecedent debts, and that there was no legal necessity, are findings of fact and binding on me in second appeal. The only questions that arise for my consideration are : (i) whether the suit is barred by limitation; (ii) whether the amount of Rs. 2500 used for purchasing another field could be said to have been used for benefit of the estate; and (iii) whether on the finding of the Court that at least Rs. The only questions that arise for my consideration are : (i) whether the suit is barred by limitation; (ii) whether the amount of Rs. 2500 used for purchasing another field could be said to have been used for benefit of the estate; and (iii) whether on the finding of the Court that at least Rs. 1150 were utilised by the father of the plaintiffs in satisfaction of his antecedent debts, the Court was justified in setting aside the alienation. It may he noted at this stage that the lower appellate Court passed the decree to this effect: ". . . . . . the suit claim is decreed for possession of the field in suit and proportionate costs subject to the defendants right to take appropriate proceedings for partition in which equities may be worked out in the light of the findings given. The defendant shall bear proportionate coats of the plaintiffs in both the Courts. " The lower appellate Court also found that the plaintiffs had only one-half share in the property to which extent the alienation could be set aside It was, however, held that the plaintiffs were entitled to a decree for possession of the entire property and leaving it for the defendant to file a suit for partition and getting his one-half share separated. ( 6. ) SECTION 104 (1) of the C. P. Tenancy Act provides that the suits and applications specified in the Second Schedule annexed to the Act shall be instituted and made within the time prescribed in that Schedule for them respectively ; and every such suit instituted and application made after the period of limitation so prescribed shall be dismissed. Sub-section (4) of section 104 then 1 description of suit or application. Period of limitation. Time from which period begins to run. 1. For possession of a holding by a person claiming to be a tenant from which he has been dispossessed or excluded from possession by any person. SUITS Three years the date of dispossession or exclusion. provides that subject to the provisions of sub-section (1), the provisions of the indian Limitation Act, 1908 (IX of 1908) with the exception of sections 6, 7, 19 and 20 there of, shall apply to suits and applications under this Act. SUITS Three years the date of dispossession or exclusion. provides that subject to the provisions of sub-section (1), the provisions of the indian Limitation Act, 1908 (IX of 1908) with the exception of sections 6, 7, 19 and 20 there of, shall apply to suits and applications under this Act. Article 1 of the Second Schedule reads : the other Articles in the Second Schedule provide for limitation regarding suits coming under specific sections of the C. P. Tenancy Act. Shri Mukerjee, learned counsel for the appellant, urged that the present suit was, in substance, for possession of the property and, as such, Article 1 of the Second Schedule was attracted. In support of his contention, he relied on certain decisions of this Court. In Namdeo v. Ramji and others (1955 NLJ Note 271=second Appeal No. 345 of 1949, decided on the 1st February 1955.)the facts were that a widow sold an occupancy field and delivered possession thereof on 21-3-1942 to the vendee. The plaintiff, who was then a minor, brought a suit for cancellation of the sale deed and possession of the field on 1-3-1947. He had attained majority on 17-7-1945. It was held in that case that the suit was barred by limitation. The claim for possession of an occupancy holding was governed by Article 1 of the Second Schedule which prescribed three years as the period of limitation and that the provisions of sections 6 and 7 of the Limitation Act did not apply. It was further held that Article 144 of the Limitation Act did not apply to such a case, as the real nature of the claim was for possession of an occupancy holding. This case can be distinguished on the ground that the sale effected by the widow was not binding on the minor and he could have straightway sued for possession of the property without asking for cancellation of the alienation. ( 7. ) IN Kejuram v. Ramdayal (1969 M PL J 189.)a de facto guardian of a minor occupancy tenant had transferred the property In the suit filed by the minor for possession of the property it was held that the provisions of section 104 and Article 1 of the Second Schedule of the C. P. Tenancy Act were attracted in that case and that the application of sections 6 and 7 and Article 144 of the Limitation act was excluded. In that case, again, the transfer effected by the de facto guardian was not binding on the minor; his remedy was to file a suit for possession. Such kind of a suit is definitely covered by Article 1 of the Second Schedule of the G. P. Tenancy Act and not by Article 144 of the Limitation Act. That case is again distinguishable for the same reason. ( 8. ) CHAMARIBAI v. Dashrathgir and others (1966 M P L J Note 83=second Appeal No 440 of 1966, decided on the 31st January 1966.) is, again, a case of alienation by a de facto manager. This case is also distinguishable. Now, under the limitation Act, the two suits, namely, a suit for possession and a suit for challenging the alienation are governed by different Articles. This clearly shows that there is a distinction between the two kinds of suits, though in the suit for cancellation of the alienation made by the father the consequential relief is also for possession. While Articles 142 and 144 of the Limitation Act deal with cases of all kinds of suits for possession, Article 126 provides for a special case applicable to the members of a Hindu coparcenary only regarding the exercise of their rights under the Hindu Law to challenge the alienation made by their father. In Murlidhar v. Hctzarilal (1941 N L J 612 =a I R 1942 Nag. 108.) a Division Bench of the Nagpur High Court (Stone, C. J. and Vivian Bose J.) held that Article 1 to Schedule II of the C. P. Tenancy Act corresponds in principle to Article 142 of the Limitation Act. It was for that reason held that the Article was not attracted in the case of a suit by a reversioner for possession after the death of a Hindu or a Mahomedan female for which special limitation under Article 141 was prescribed. I am thus fortified in holding that Article 1 of Schedule II of the C. P. Tenancy Act only applied to suits for possession simpliciter and not to a kind of a suit under consideration. I must, therefore, hold that the plea of limitation raised by the defendant is without any substance. ( 9. I am thus fortified in holding that Article 1 of Schedule II of the C. P. Tenancy Act only applied to suits for possession simpliciter and not to a kind of a suit under consideration. I must, therefore, hold that the plea of limitation raised by the defendant is without any substance. ( 9. ) I may also point out that under sub-section (4) of section 104 of the c. P. Tenancy Act the exclusion of sections 6, 7, 19 and 20 of the Limitation act is only confined to suits and applications under the Act. This sub-section is thus attracted only in those cases where the suits are based on certain rights conferred under the C. P Tenancy Act as such and for the working out of which suits have been filed. I have already pointed out that the rest of the Articles in the Second Schedule refer to suits under various sections of the Act itself. To such suits alone, in my view, sub-section (4) of section 101 is applicable. This aspect of the matter has not been considered in the cases, cited above. In my opinion, therefore, even if it is held that the present suit is governed by Article 1 of the Second Schedule, the application of sections 6 and 7 of the Limitation Act is not excluded and the suit filed by the plaintiff No. 1 within one year of his attaining majority is within limitation. This finding is not, however, very material inasmuch as I have held that Article 1 of the Second Schedule of the C. P. Tenancy Act is not at all attracted in the present case. ( 10. ) IT is no doubt true that Rs. 2500 were utilised by the father of the plaintiffs for purchasing another field. The area of the field is only 2. 05 acres. There is no evidence on record to show that the field is much more valuable than the property which was disposed of by the plaintiffs father. Apart from this, the alienation of the property can be justified only if it is for the benefit of the estate. It is clear from the evidence on record that the property in question was the only property with the joint family. Apart from this, the alienation of the property can be justified only if it is for the benefit of the estate. It is clear from the evidence on record that the property in question was the only property with the joint family. When the whole property itself is transferred, it is difficult to see how such a transfer can be for the benefit of the estate when only part of the consideration is used for purchasing the property. The contention of the defendant that the alienation was for the benefit of the estate cannot, therefore, be accepted ( 11. ) I was referred to the statement in Mullas Hindu Law (paragraph 297, 13th Edition) to the effect that where the whole of the price paid is not proved to have been applied in payment of the debt and the sale is challenged by the sons on that ground, if it is proved that the sale was necessary to discharge the debt and that the purchaser paid a fair price for the property sold and acted in good faith and after due inquiry as to the necessity for the sale, the mere fact that part of the price was not proved to have been applied in payment of the debt does not invalidate the sale. On the finding of the lower appellate Court it is clear that part of the alleged consideration was not at all paid, that a major portion of the amount was utilised for a purpose not warranted under the law and only a fraction of the consideration was utilised for payment of the antecedent debts. In this kind of a case all the elements of good faith, payment of fair price and due inquiry are necessarily absent. The proposition, referred to above, is not, therefore, attracted in this particular case. ( 12. ) FOR the above said reasons, I find that the decision of the lower appellate Court is correct and the appeal is without substance. . The appeal is dismissed with costs. Appeal dismissed.