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2018 DIGILAW 91 (ORI)

Pravakar Mishra v. Chandrasekhar Naiko

2018-01-17

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. This is a plaintiff’s appeal against confirming judgment. 2. The plaintiff instituted the suit to set aside the sale deed dated 30.4.73 and recovery of possession. The case of the plaintiff was that the suit schedule land belonged to his father, Ramachandra Mishra. He died in the year 1969 leaving behind him two sons and one daughter, namely, Syamo Sibo, Pravakar (plaintiff) and Aparna. During life time of his father, the property was partitioned on 10.8.69. The deed was reduced to writing. The suit schedule land was allotted to the share of the plaintiff. Since he was a minor, the property was looked after by his mother, defendant no.3, till he attained majority. His elder brother, Syamo Sibo, was addicted to liquor. He died in the year 1979. Few years ago, the plaintiff came to know that defendant no.1 was cultivating the suit land in spite of protest made by him and his mother. A notice was issued to him to vacate the land. But then, the defendant no.1 claimed that he had purchased the suit land from his elder brother, Syamo Sibo, by means of a registered sale deed dated 14.4.73. After obtaining certified copy, he came to know that the sale deed was obtained by the defendant no.1 said to have been executed by Syamo Sibo and the plaintiff. He was described as a minor and was represented by his elder brother. There was no legal necessity to alienate the land. No consideration was passed. His elder brother had no right to alienate the property. Defendant no.1 obtained the sale deed by playing fraud. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. The defendant no.1 entered contest and filed written statement pleading inter alia that in the year 1968, the Tahasildar-cum-Certificate Officer, Jeypore initiated a certificate case against Ramchandra Mishra for non-payment of land revenue to the tune of Rs.2034.46 paise. After death of Ramachandra, his sons, Syamo Sibo and the plaintiff represented by his brother guardian and their mother had been impleaded as parties. They contested the proceeding. They could not clear up the arrear land revenue. The suit land was put to auction on 8.2.1973. He participated in the auction and became the highest bidder. The sale was knocked in his favour. He deposited an amount of Rs.6,200/-before the Certificate Officer. They contested the proceeding. They could not clear up the arrear land revenue. The suit land was put to auction on 8.2.1973. He participated in the auction and became the highest bidder. The sale was knocked in his favour. He deposited an amount of Rs.6,200/-before the Certificate Officer. Thereafter the sale deed was executed in his favour on 30.4.73. The land was mutated in his favour. He is in possession of the suit land. 4. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court came to hold that sale deed was executed by Syamo Sibo for himself and on behalf of the plaintiff for a valid consideration in order to clear up the loan amount. The suit was barred by limitation. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Addl. District Judge, Jeypore in T.A. No.12 of 1991, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.C and D of the memorandum of appeal. The same are: “C. Whether in view of section-8 of the Hindu Minority and Guardianship Act, the alienation made by the elder brother when the mother guardian is admittedly alive is a valid alienation which binds the minor brother. D. Whether in view of the finding of the learned courts below that Ram Chandra Mishra died in the year 1969 leaving behind his two sons Shyam Shiba Mishra and the plaintiff, daughter Aparna and widow Pravati and the ancestral property including the suit property was undivided, Shyam Shiba Mishra, elder brother should execute the sale deed in respect of a part of suit property for self and as the brother guardian, on the alleged plea of the legal necessity.” 6. Heard Mr. Tarananda Pattnaik, learned counsel along with Mr. Samarendra Pattnaik, learned counsel for the appellant and Mr. P.K. Das, learned counsel for the respondents. 7. Mr. Pattnaik, learned counsel for the appellant submits that the sale deed dated 30.4.73 vide Ext.2 is an outcome of fraud. The defendant no.1 played fraud and obtained the sale deed when the plaintiff was a minor. His mother was alive. Samarendra Pattnaik, learned counsel for the appellant and Mr. P.K. Das, learned counsel for the respondents. 7. Mr. Pattnaik, learned counsel for the appellant submits that the sale deed dated 30.4.73 vide Ext.2 is an outcome of fraud. The defendant no.1 played fraud and obtained the sale deed when the plaintiff was a minor. His mother was alive. No permission whatsoever was accorded by the learned District Judge under Sec.8 of the Hindu Minority and Guardianship Act to alienate the suit land. Thus the deed is void. 8. Per contra, Mr. Das, learned counsel for the respondents submits that a certificate case was initiated against the father of the plaintiff for non-payment of arrear land revenue. The defendant no.1 deposited the amount before the Certificate Officer. The case was closed. Thereafter the elder brother of the plaintiff, plaintiff and his mother alienated the suit land in favour of defendant no.1 for a valid consideration and delivered possession. The suit land was mutated in the name of defendant no.1. He further submits that both the courts concurrently held that the suit is barred by limitation. 9. Before adverting to the contentions raised by the counsel for both parties, it will necessary to set out the provision of the Limitation Act, 1963. Article 60 of the Limitation Act, 1963 provides: Description Period of limitation Time from which period begins to run 60. To set aside a transfer of property made by the guardian of a ward— Three years When the ward attains majority. (a) by the ward who has attained majority; (b) by the ward’s legal representative— (i) hen the ward dies within three years from the date of attaining majority; Three years When the ward attains majority. (ii) when the ward dies before attaining majority. Three years When the ward dies. 10. The period of limitation is three years to set aside a transfer of property made by the guardian of a ward when the ward attains majority. Plaintiff was 29 years old when the suit was instituted on 18.3.85. Thus he was born in the year 1956. He attained majority in the year 1974. The sale deed was executed on 30.4.73. The suit could have been instituted within three years, i.e., by 29.4.1976. Thus both the courts are perfectly justified in holding that the suit was barred by limitation. Thus he was born in the year 1956. He attained majority in the year 1974. The sale deed was executed on 30.4.73. The suit could have been instituted within three years, i.e., by 29.4.1976. Thus both the courts are perfectly justified in holding that the suit was barred by limitation. In view of the same, the substantial questions of law as framed became academic and do not require consideration. 11. In the wake of aforesaid, the appeal, sans merit, deserves dismissal and accordingly the same is dismissed. No costs.