Kumud Bala Debya v. Gita Rani Debi — 1975 DIGILAW 136 (CAL)

JUDGMENT The judgment of the Court was as follows :- This appeal arises out of a suit for declaration by the plaintiff, Gita Rani Debi of her title to the suit land and that the kobala dated 27th Kartik 1351 B.S. executed by Bhanumati Debi in favour of defendant no. 1 Kartik Guha is without legal necessity and not binding on the plaintiff. The trial Court dismissed the suit. The appeal court having reversed, the defendant preferred the second appeal. 2. The case made out in the plaint is that the subject-matter of the land in suit are 1.10 acres land out of 1.45 acres of land in Dag No. 126 of Khatian No. 241 and the entire 43 decimals of land in Dag no. 60 of Khatian No. 243 of Mouja Jhiknara. The plaintiff's case is that the lands in suit belonged to plaintiff's father, Radhagobinda Sau. After his death these lands were inherited and possessed by his wife Bhanumati, an illiterate and pardanashin woman and her property was looked after by her brother, Karlik Guha, defendant no.1. Bhanumati died in Agrahayan 1355 BS. Thereafter the plaintiff inherited all the properties left by her father as the only heir. She attained majority and filed the present suit. It was alleged that the plaintiff inherited all the properties left by her father and the defendant no.1 by exerting influence upon Bhanurnati had got a kobala without consideration executed by Bhanumati in his favour. It is further alleged that there was no legal necessity for the Kobala. The plaintiff's case is that the defendant no. 1 concealed the whole matter during the life time of Bhanumati who continued to possess the disputed lands but after Bhanurnati's death when the plaintiff was in possession of the said lands he had executed a kobala without consideration in favour of defendant no. 2 Kumudbala. The defendant no. 2 was aware of the plaintiff's possession and the character of Bhanumati's kobala in favour of Kartik. It is alleged that the revisional record of rights had incorrectly mentioned the defendant no. 2 as having title in the suit land and had mentioned plaintiff as having forcible possession in the same. The case, therefore, clouded the plaintiff's title and hence the plaintiff filed the present suit. It is alleged that the revisional record of rights had incorrectly mentioned the defendant no. 2 as having title in the suit land and had mentioned plaintiff as having forcible possession in the same. The case, therefore, clouded the plaintiff's title and hence the plaintiff filed the present suit. It is further alleged that there was no legal necessity for the transfer as the plaintiff's marriage took place long after her mother's kobala in favour of Kartik and two other kobalas on the same date were untrue. The defendant no. 2 filed a written statement opposing the plaintiff's claim and her defence, inter alia, was that the suit was not maintainable and the suit was barred by limitation under the proviso to section 42 of the Specific Relief Act. It was further denied that Bhanumati was an illiterate and pardanashin woman and that her property was looked after by her brother Kartik for guidance and that Kartik exerted influence upon Bhanumati in getting the disputed kobala executed. It is stated that the sale was for legal necessity and the plaintiff's marriage occurred on 5th Agraahyan 1351 B.S. The defendant no. 2 was a bonafide purchaser for value. It is stated that the revisional record of rights is not correct in so far as the plaintiff's possession is concerned. The court of first instance dismissed the suit whereupon the plaintiff preferred an appeal. The appeal having been allowed the defendant preferred the present appeal. The Trial Court held, inter alia, that Bhanumati was not an absolute owner of the property and Gila Rani was a minor at the time when the three kobalas dated 27th Kartick 1351 B.S. were executed. Gita Rani attained the majority on 12th March, 1956 and should have filed the suit on 12th March, 1959 and as such the suit was time barred. The court of appeal below however found that the suit was not time barred under the Art. 120 of the Indian Limitation Act. In respect of the issue regarding the right, title and interest in the disputed property it has been held that there was no undue influence exerted upon Bhanumati. Bhanumati was not a pardanashin lady and there was no fraud in the matter of execution of the document. It was further held that there was a legal necessity for execution of the document, Ext. A, kobala. Bhanumati was not a pardanashin lady and there was no fraud in the matter of execution of the document. It was further held that there was a legal necessity for execution of the document, Ext. A, kobala. The legal necessity was that the plaintiff herself was married in early part of Agrahayan 1351 B S. after the kobala was executed in 27th Kartik 1351 B. S. and the expense of the marriage was borne by the plaintiff's mother out of the consideration money obtained by selling this property. The Trial Court held that the plaintiff is in possession of the suit land and the suit is not barred under section 42 of Specific Relief Act. It was held further that Bhanumati was a pardanashin lady and the kobala was executed without legal necessity and at the influence of Kartik. The plaintiff was married sometime in Agrahayan 1352 B.S. and as such there was no legal necessity for the transfer. Being aggrieved by the said judgment of the appeal court, the defendant preferred the second appeal. 3. Mr. Mukherjee on behalf of the appellant contended that the suit is barred by limitation and that the suit is not maintainable. In view of the fact, no declaration was prayed for and therefore the suit is barred under section 42 of the Specific Relief Act. 4. Mr. Sakti Nath Mukherjee On behalf of the respondent contended that as the plea of limitation was not raised by the plaintiff who is respondent before the court below, he should not allowed to raise the point in this proceeding and secondly, it was contended that the right to sue bas not accrued when the suit was brought and as such Art. 120 of the Limitation Act applies. 5. The first question raised by Mr. Mukherjee is one of plea of limitation. It is argued that the plaintiff was a minor when Bhanumati sold the property in question. The plaintiff attained majority on 12th March, 1956 and the suit, therefore, ought to have been brought on 12th March, 1959 under section 8 of the Indian Limitation Act but the suit was in fact brought on 5th March. 1960, that is beyond the period of 3 years and as such the suit itself is barred by limitation. 6. In reply to this question Mr. 1960, that is beyond the period of 3 years and as such the suit itself is barred by limitation. 6. In reply to this question Mr. Sakti Nath Mukherjee contended that the plea of limitation was not raised by the defendant before the appeal court where the plaintiff was the respondent and as such be cannot be allowed to raise it now. In my opinion, in the facts of the present case and when the matter is one of limitation, this can certainly be raised in the second appeal even if the appellant herein who was the respondent in the court below has not raised the question in the Lower Appellate Court. The question of limitation is a question of jurisdiction. 7. In a case reported in (1) AIR 1966 SC, 153 (Pandurang v. Marut) at page 155 it has been held that "It is well-settled that a plea of limitation or a plea of res-judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings". In my view, therefore, the plea of limitation can be raised in second appeal even if it has not been raised in the lower appellate Court. The appellant herein who was respondent in the appeal court below did not raise the question of limitation as the suit was decreed in her favour by the court below, though on the question of limitation it went in favour of the plaintiff. The next question is whether the suit is barred by limitation. The plaintiff was a minor when Bhanumati sold the property in question and became 18 years of old on 12th March, 1956. The suit ought to have been brought under section 8 of the Limitation Act on 12th March, 1959. Admittedly the suit was brought on 5th March, 1960, beyond the period of 3 years. 8. Mr. Mukherjee however contended that the plaintiff was in the possession of the suit properly and the right to sue did not accrue even when the suit was brought. 9. It appears to me however that the right to sue accrued when the property was sold without legal necessity by Bhanumati and in view of section 8 of the Limitation Act the suit can be brought within 3 years after the plaintiff attained the majority. 9. It appears to me however that the right to sue accrued when the property was sold without legal necessity by Bhanumati and in view of section 8 of the Limitation Act the suit can be brought within 3 years after the plaintiff attained the majority. Admittedly in this case the plaintiff brought the suit more than 3 years after she attained the majority. The Trial Court held that Art. 120 of the Limitation Act applies. Therefore, the limitation is 6 years from that date. Art. 120 only applies in respect of a suit where there is no limitation provided in the schedule, 6 years must be reckoned from the date when the right to sue accrues. In the present case, the right to sue accrued during the minority of the plaintiff. She attained the majority on 12th March, 1956 and the suit should have been brought within 3 years from that date, that is, 12th March, 1959. 10. Mr. Sakti Nath Mukherjee relied upon the case reported in (2) AIR 1966 SC, 470 (Manikayala v. Narasimhaswami) and contended that in the present case there was no time limit provided in the Limitation Act and, therefore, Art. 120 is applicable. Mr. Sakti Nath Mukherjee relied upon paragraphs 6 and 8 and contended that the right to sue did not accrue at all and therefore, bar of limitation does not apply. In my opinion, Mr. Mukherjee is not correct in his submission. The right to sue accrued on the date when the transfer was made during the minority of the plaintiff on 20lh December, 1951. The transfer was made without legal necessity as found by the Court of appeal below. In that view of the matter, the plaintiff has a right under section 8 of the Limitation Act to file the suit wit bin 3 years from the date when the attained the majority. In the present case, the suit was filed beyond the period of limitation. In my opinion, therefore, section 8 of the Limitation Act in terms applies and therefore, the suit as filed was barred by limitation. 11. Mr. Sakti Nath Mukherjee relied upon the cases reported in (3) 57 IA 325 at 331 and (4) AIR 1960 SC 335 (Rukhmabai v. Laxminarayan in support of his contention. In my opinion, therefore, section 8 of the Limitation Act in terms applies and therefore, the suit as filed was barred by limitation. 11. Mr. Sakti Nath Mukherjee relied upon the cases reported in (3) 57 IA 325 at 331 and (4) AIR 1960 SC 335 (Rukhmabai v. Laxminarayan in support of his contention. In my opinion, those suits were filed by a co-sharer of a joint family, and the Supreme Court in 1960 SC 335 held that "there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivccal threat at to infringe that right, by the defendant against whom the suit is instituted". In this case the defendant purchased from a limited owner without legal necessity as has been found by the appeal court below. This finding of fact cannot be assailed before me in a second appeal. I further find that the appeal Court was right in his finding that there was no legal necessity for the sale. 12. In that view of the matter, it appears to me that the cases cited by Mr. Sakti Nath Mukherjee cannot support his case. The suit filed on 5th March, 1960 was barred by limitation and as such the suit must be dismissed and the appeal is allowed. There will be no order as to costs.