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Madhya Pradesh High Court · body

2005 DIGILAW 493 (MP)

Vinay Kant Pandey v. Bhagwandas Kurmi

2005-04-07

S.L.JAIN

body2005
JUDGMENT 1. Being aggrieved by the judgment and decree dated 28.2.1996, passed by 1st Additional District Judge, Katni in Civil Suit No. 41-A/83, the appellant has filed this appeal under section 96 of the Code of Civil Procedure (henceforth, ‘the CPC'). 2. The facts in brief, shorn of details and necessary for the disposal of this appeal lie in a narrow compass. (i) Plaintiff-respondent No. 1 filed a suit against the appellant defendant No. 5 and respondents No. 2 to 8 for declaring the sale deeds executed by respondent No.3 in favour of different defendants as void to the extent of 3/4th share of the suit property and for injunction restraining the construction on the suit land. (ii) The plaintiff averred that the suit land described in para 2 of the impugned judgment is the ancestral property of the plaintiff and the same was recorded in the name of his father Gyani in the revenue records. Gyani was the owner and in possession of the suit land. After the death of Gyani, the suit land devolved in favour of his son i.e. the present plaintiff. The present plaintiff is entitled to 3/4th share and his mother is entitled to 1/4th share in the property. At the time of death of Gyani, the age of the present plaintiff was only 4 years. His mother, Madhni Bai, after the death of her husband, married to respondent No. 2 Sadri Prasad. When the appellant was aged about 12 years, due to the harassment meted out to him by his mother and step father, he left them and went to Dhaniram. Thereafter Madhni Bai sold a portion of the ancestral property to defendants Sukhai Kurmi, Kamal Kumar Jain, Vinay Kant Pandey and Sahara bi. Sahara bi sold her interest in the property to Sevaram. Respondent No.6 started construction on the suit land. The plaintiff tried to prevent respondent, No. 6 from constructing the house on the said land but he did not refrain, therefore, the plaintiff filed a suit against his mother and different purchasers. 3. Respondent No.3 in her written statement had stated that she was misguided by the purchasers that as the name of the plaintiff is not in the revenue records, she alone can sell the land. It was brought to the knowledge of the purchaser by her that the plaintiff had a share in the suit property. 4. 3. Respondent No.3 in her written statement had stated that she was misguided by the purchasers that as the name of the plaintiff is not in the revenue records, she alone can sell the land. It was brought to the knowledge of the purchaser by her that the plaintiff had a share in the suit property. 4. The appellant also contested the suit. He pleaded that he is a bona fide purchaser of the part of the suit land. The plaintiff used to tell him that the land was sold for legal necessity. The money was required by the family for the education of plaintiff. The possession of the portion of the land purchased by him was handed over to him. The defendants also pleaded misjoinder of parties and misjoinder of causes of action. 5. Defendant No. 7 pleaded that the construction which is being carried out by him is not on the suit land. He also pleaded that during the pendency of the suit defendant No.6 died and his LRs 'were not brought on the record, therefore, the suit abates against all the defendants. Defendants No.3, 4 and 6 proceeded as ex parte. 6. The trial Court framed as many as 15 issues and 2 additional issues and recorded a finding that the plaintiff is having half share in the suit property. His mother Madhni Bai alone could not have sold the suit property and the sale deeds executed by her in favour of different purchasers are not binding on the plaintiff. The suit does not suffer from misjoinder of parties. 6. The trial Court also found that it has not been proved that the land was sold by defendant No.2 Madhni Bai for legal necessity for the education of the plaintiff and decreed the suit holding that the plaintiff is having 1/2 share in the suit property and he is entitled to joint possession along with the purchasers. 7. I have heard Shri S.P. Sinha, learned counsel for the appellant and Shri Ashok Lalwani, counsel for the respondent No. 1. None appeared for other respondents. 8. 7. I have heard Shri S.P. Sinha, learned counsel for the appellant and Shri Ashok Lalwani, counsel for the respondent No. 1. None appeared for other respondents. 8. Learned counsel for the appellant contended that (i) the suit is barred by limitation as the same was filed after more than 3 years of the alleged sale deeds dated 19.3.1979 and 10.11.1979, (ii) the suit was filed by the next friend without the permission of the Court, (iii) the suit is bad for misjoinder of defendant and causes of action, (iv) the sale of the suit property was for legal necessity of the plaintiff, the mother had right to sell the property in her capacity as Karta; (v) the defendant Sahara bi died during the pendency of the suit. Her legal heirs were not impleaded, therefore, the suit abates against all the defendants, (vi) the property purchased by the appellant should be adjusted in the share of the seller; and (vii) the trial Court should not have directed the demolition of the construction on the land purchased by the appellant unless the portion is allotted to the share of respondent No.1-plaintiff. 9. Per contra, learned counsel for respondent No. 1 submitted that the trial Court rightly decreed the suit and there is no scope for interference in this appeal. 10. So far as the contention regarding limitation is concerned, the learned counsel for the appellant submitted that the alleged sale was executed by respondent No.3 on 19.3.1979. The suit ought to have been filed before 19.7.1982 as the limitation prescribed for declaring the sale as invalid is three years but the suit has been filed on 29.3.1982 i.e. more than three years of the sale deed. 11. The contention is not acceptable. The present suit has been filed on behalf of the minor for declaring the sale executed by the natural guardian as void. 12. Under section 8 of the Hindu Minority and Guardianship Act, the natural guardian of a Hindu minor has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the natural guardian without previous permission of the Court cannot transfer by sale any part of the immovable property of the minor. Any disposal of the immovable property by a natural guardian without the permission of the Court is voidable at the instance of the minor or any person claiming under him. 13. A minor can challenge the alienation made by the guardian and the suit can be filed within three years of attaining majority as laid down in section 66 of the Limitation Act. 14. In Surta Singh v. Pritam Singh, AIR 1983 Punjab and Haryana 114, the full Bench said that from the reviewal' precedents it would follow that without a hint of any meaningful dissent the massive weight of precedent is that to impeach a' transfer of immovable property by the certificated guardian without the permission of a Court, the minor must sue within the prescribed period of three years after attaining majority. Once it is so, a fortiori, it follows that the position of a Hindu Minor assailing a similar transaction of his natural guardian is no different, and identical consideration would be applicable to this case under section 8(3) of the Hindu Minority and Guardianship Act. Sub-section (3) of section 8 of the Hindu Minority and Guardianship Act provides that such a disposal of immovable property by the natural guardian is voidable at the instance of the minor. Thus, the minor could have filed a suit for declaring the sale void. 15. Such a suit can be filed by a minor through his next friend even during his minority. The present suit has been filed by the guardian during the minority, therefore, the suit cannot be said to be barred by limitation. Hence, the contention in this regard cannot be countenanced. 16. So far as the contention regarding filing of the suit without permission of the next friend is concerned, Order 32 Rule 1 of the CPC provides that where a suit is instituted by minor the same shall be instituted in the name of a person who in such suit shall be called the next friend of the minor. 17. The trial Court before registering the case recorded the statement of Dhaniram, the next friend who has established the fact that he is competent to file a suit on behalf of the minor. Only after recording the statement of Dhaniram, the trial Court registered the case. 17. The trial Court before registering the case recorded the statement of Dhaniram, the next friend who has established the fact that he is competent to file a suit on behalf of the minor. Only after recording the statement of Dhaniram, the trial Court registered the case. The person who takes steps in the suit on behalf of the minor automatically constitutes himself the next friend of the minor. An order of the Court as in the case of a guardian ad-litem for a minor defendant is not necessary for that purpose. 18. Therefore, I do not find any infirmity in the suit filed by the .~ next friend on behalf of the plaintiff. In such a suit which is filed on behalf of the minor, the minor is the real plaintiff. The next friend is not a party to the suit, in proper sense of the term; he only represents the minor's interest and acts for him. 19. It is also submitted by the learned counsel for the appellant that as the father of the plaintiff died, the mother being the only adult member in the family, she became the Karta of the family. So long, as the father is alive, he was the Karta of the family but after his death, it passed to the mother. The mother being the head of the family disposed of the property for legal necessity for the education of the plaintiff. In the absence of adult male members, the mother though not a coparcener can be Karta of the family and her acts would be binding on the others as that of Karta. 20. The contention cannot be accepted. In Commissioner of Income Tax v. Seth Govindara AIR 1966, SC 24 the apex Court after reviewing the authorities took the view that the mother or any of the female could not be the Karta of the joint family. According to the Hindu sages, only a coparcener, can be Karta. Since a female cannot be coparcener cannot be the Karta of the joint family. Therefore, the mother could not have been Karta of the family. 21. In this regard, learned counsel for the appellant submits that the property was sold for the education of the plaintiff who was then minor. Since a female cannot be coparcener cannot be the Karta of the joint family. Therefore, the mother could not have been Karta of the family. 21. In this regard, learned counsel for the appellant submits that the property was sold for the education of the plaintiff who was then minor. Necessity is not to be understood in the sense of what is absolutely indispensable but what according to the notions of a Hindu family would be regarded as proper and reasonable. The actnal compelling necessity is not the sole test. Hit is shown that the transaction was one which was clearly beneficial in the interest of the family as a whole, the transaction is valid. 22. The contention cannot be accepted. The term is to be interpreted with due regard to the conditions of modem life. There is no evidence that the education of the minor was so expansive that it was not possible by the income of the land and the sale of the property was indispensable. 23. When the mother was not the Karta of the family and acted only as a guardian, even if the disposal of the property was necessary for the education of the son or other requirements of the minor, it was necessary for the mother to seek the permission of the Court for dispensing of the property of the minor. 24. Clause 2 of section 8 of the Hindu Minority and Guardianship Act contains specific provisions regarding limitations on the guardian's general power. Clause 3 lays down that any alienation made by the guardian in contravention of clauses (1) and (2) is voidable at the instance of the minor. Though, such an alienation is not void but it is voidable. 25. Since the guardian has alienated the suit land without applying to the Court for grant of permission and without satisfying the Court that the alienation is necessary in the interest of the minor or the same is for evident advantage to the minor, the suit for declaring the sale as void is maintainable at the option of the minor. Therefore, it cannot be said that the sale on behalf of the minor by the mother in her capacity as natural guardian was lawful and the same cannot be questioned in the suit. 26. Learned counsel for the appellant then contended that defendant No.6 died during the pendency of the suit. Therefore, it cannot be said that the sale on behalf of the minor by the mother in her capacity as natural guardian was lawful and the same cannot be questioned in the suit. 26. Learned counsel for the appellant then contended that defendant No.6 died during the pendency of the suit. Her legal representatives were not brought on the record, therefore, the suit abates not only against the defendant No. 6 but also against all other defendants. If, one of the several defendants dies and no application is made within the period of limitation for bringing on record the legal representatives, the suit will abate not in its entirety but only so far as the deceased defendant is concerned. As there were different sale deeds and the deceased was not a party in the sale deeds, excluded in favour of other defendants suit qua deceased defendant alone abates. 27. The counsel for the appellant could not show the circumstances because of which the abatement may result in the whole suit in the present case. The suit does not abate against defendant No.6. The property was sold by defendant No.6 to defendant No.7. After the sale, defendant No.6 is only a formal party in the suit. Further, the purchaser who had been intermeddling with the estate of the deceased became the legal representative and, therefore, the purchaser who is the legal representative is a party in the suit as defendant No.7. The finding of the trial Court that the suit did not abate cannot be found faulted with. 28. Learned counsel for the appellant also contended that the suit is bad due to misjoinder of parties. Rule 3 of Order 1 of CPC provides that all persons may be joined as defendants against whom any right to relief is alleged to exist, provided that such right arises in respect of the same act or transaction or series of acts or transactions, and the case is one where if separate defendants were made any common question of law or fact would arise. 29. It is not necessary that all the defendants should be interested in all the reliefs and transactions comprised in the suit or that the liability of all the defendants should be the same. 29. It is not necessary that all the defendants should be interested in all the reliefs and transactions comprised in the suit or that the liability of all the defendants should be the same. As there is one common question to all the defendants as to whether the alienation made by the guardian to different defendants without permission of the Court is voidable and the question being of sufficient importance, the same is enough for applicability of Rule 3. The combined effect of Order 1 Rule 3 and Order 2 Rule 3 is to enable a plaintiff to join not only the different causes of action against the defendant but also the different causes of action against different defendants where it was necessary to implead all the defendants to secure full and effective relief. The suit cannot be said to have been bad for misjoinder of parties. The plaintiff has rightly sued every possible adverse claimant in the same suit. He is dominus litis. He may choose to implead those persons against whom he wishes to proceed unless or otherwise directed. 30. The learned counsel for the appellant vehemently argued that the property purchased by the appellant should be adjusted in the share of the seller. 31. I find merit in this contention of the counsel. When a share in the joint property is alienated, the purchaser gets the joint possession along with the other co-owners. Originally the. property belonged to Gyani. After his death in terms of section 8 of the Hindu Succession Act the property devolved upon his wife and son they being the relatives specified in class I of the schedule annexed with the Hindu Succession Act. Under section 10 of the said Act the sole widow gets one share and the sole surviving son i.e. present plaintiff shall take one share. Thus, the trial Court has rightly held that the wife and son of deceased Gyani have equal share in the property left by Gyani. The trial Court rightly held that Madhni Bai, the mother could have sold only half share of the property of Gyani. If more than half of share has been sold by the mother, the same is illegal. The trial Court rightly held that Madhni Bai, the mother could have sold only half share of the property of Gyani. If more than half of share has been sold by the mother, the same is illegal. Where undefined share in the joint property is sold by one of the co-owner, the purchaser gets joint possession and he may file a suit for partition and may claim that on the principle of equality that the property should be so partitioned that the portion sold by the co-owner to him should be allotted to his share. 32. In the present case, the trial Court has only directed for the joint possession. The appellant and other purchasers are at liberty to request at the time of partition in mates and bonds that the portion of the joint property sold to them may be allotted to their share but this question cannot be determined in this appeal. 33. Learned counsel for the appellant lastly canvassed that the trial Court should not have directed for demolition of the construction on the land purchased by the appellant unless the portion is allotted to the share of the respondent-plaintiff. As has been stated earlier, the purchaser from a joint owner can file a suit for partition and requests on the grounds of equality that the p0l1ion of the joint property, the possession which has been handed over to him by the joint owner should be allotted in his share in the partition. It will not be proper to demolish' the construction on the joint property unless such an opportunity is given to the purchaser. Therefore, it is directed that the appellant or any other purchaser if files a suit for partition within one year requesting that the portion in his possession be allotted to him/them, the construction on the land shall not be demolished and the execution of decree in this regard shall remain stayed. If the• suit is not filed within one year or the portion is not allotted to the purchaser in the suit, the respondent No. 1 shall be at liberty to execute the decree so far as it relates to demolition of construction and the executing Court shall after notice to the judgment-debtor execute the decree. 34. The result of the above discussion is that except the above modification in the judgment and decree, the appeal is sans substance. 34. The result of the above discussion is that except the above modification in the judgment and decree, the appeal is sans substance. The same is, therefore, dismissed with the above modification. 35. Parties to bear their own costs. .................