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Madhya Pradesh High Court · body

2019 DIGILAW 83 (MP)

Nisha Singh v. Virendra Sharma

2019-01-24

G.S.AHLUWALIA

body2019
ORDER 1. This revision under section 115 of CPC has been filed against the order dated 20.6.2018, passed by Fourth Civil Judge, Class- I, Gwalior in Civil Suit No. 236-A/2017, by which the application filed by the applicants under Order 7 rule 11 of CPC has been rejected. 2. The necessary facts for the disposal of the present revision in short are that the respondents No. 1 to 3/plaintiffs have filed a suit for declaration of title and permanent injunction, alleging that three sale deeds executed by their mother in respect of disputed property during their minority on 8.4.1999, are null and void. It is further pleaded in the plaint that on 20.11.2015 the plaintiffs were carrying on their agricultural activities and the defendants came to the field and started abusing the plaintiffs and extended a threat to dispossess them and also threatened that they would alienate the property to some other persons. It is the case of the plaintiffs that the land in dispute is the ancestral property of the plaintiffs and the defendants No. 2 to 6. The property has never been partitioned so far. 3. The applicants filed an application under Order 7 rule 11 of CPC on the ground that the suit is barred by limitation because the sale deeds were executed by the mother of the plaintiffs on 4.4.1999, whereas the suit has been filed for declaration of sale deed as null and void on 15.12.2015. It is further submitted that as the plaintiffs wanted to avoid the sale deeds, therefore, they are liable to pay the ad valorem Court fee. The application filed by the plaintiffs has been rejected by the trial Court. 4. Being aggrieved by the order of the trial Court, the present revision has been filed. 5. It is submitted by the counsel for the applicants that according to the plaintiffs, they were minors at the time of execution of sale deeds by their mother, therefore, in view of Article 60 of the Limitation Act, the suit should have been filed within three years from the date of attaining the majority. As per the age disclosed by the plaintiffs/respondents No.1 to 3 in the plaint, it is clear that they were aged about 15, 16 and 13 years respectively on 8.4.1999 and thus, it is clear that the suit which has been filed by the plaintiffs, is hopelessly bared by limitation. As per the age disclosed by the plaintiffs/respondents No.1 to 3 in the plaint, it is clear that they were aged about 15, 16 and 13 years respectively on 8.4.1999 and thus, it is clear that the suit which has been filed by the plaintiffs, is hopelessly bared by limitation. 6. Considered the submission made by counsel for the applicants. 7. Section 8 of Hindu Minority and Guardianship Act, 1956 reads as under : ''8 . Powers of natural guardian.- (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, 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 guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the Court,- (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him. (4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under section 29 of that Act, and in particular- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof. (b) the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court. (6) In this section, "Court" means the city civil Court or a district Court or a Court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate.'' 8. Article 60 of the Indian Limitation Act, 1963 reads as under : 60. To set aside a transfer of property made by the guardian of a ward (a) By the ward who has attained majority; Three years When the ward attains majority. (b) By the ward’s legal representative Three Years I. When the ward dies within three years from the date of attaining majority; When the ward attains majority. When the ward dies before attaining majority Three Years When the ward dies. 9. Where the natural guardian is empowered to do all the acts which are necessary or reasonable and proper for the benefit of the minor, but he can in no case bind the minor by a personal covenant. Thus, it is clear that the suit can be filed within three years from the date of attaining the majority. 10. Section 8(2) of Hindu Minority and Guardianship Act Act, 1956 clarifies that without permission of the Court, the natural guardian shall not mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor and any disposal of immovable property by a natural guardian, in contravention of subsection (1) or sub-section (2) of section 8, is voidable at the instance of the minor. 11. It is well-established principle of law that for deciding the application under Order 7 rule 11 of CPC, the Court has to look into the plaint pleadings only. 11. It is well-established principle of law that for deciding the application under Order 7 rule 11 of CPC, the Court has to look into the plaint pleadings only. In the plaint, the plaintiffs have pleaded that on 20.11.2015, they came to know for the first time regarding sale deeds dated 8.4.1999 only when, the defendants No. 7 to 9 had obstructed and abused them. 12. It is true that if the suit is barred by any law, then the plaint is liable to be rejected. The law of limitation is also a law, covered under Order 7 rule 11 of CPC. However, whether the question of limitation is a pure question of fact or mixed question of fact, would depend on the facts and circumstances of each case. 13. Section 17 of the Indian Limitation Act, 1963 reads as under:- ''17. The law of limitation is also a law, covered under Order 7 rule 11 of CPC. However, whether the question of limitation is a pure question of fact or mixed question of fact, would depend on the facts and circumstances of each case. 13. Section 17 of the Indian Limitation Act, 1963 reads as under:- ''17. Effect of fraud or mistake – (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act- (a) The suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) The knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) The suit or application is for relief from the consequences of a mistake; or (d) Where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; The period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, has discovered it, or in the case of concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against or set aside any transaction affecting, any property which- (i) In the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or (ii) In the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) In the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the Court may, on the application of the judgmentcreditor made after the expiry of the said period extend the period for execution of the decree or order : Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.'' 14. Thus, where the plaintiffs have pleaded that they were not aware of the sale deeds executed by their mother during their minority and they came to know for the first time about the sale deeds only on 20.11.2015, then in the considered opinion of this Court, the question of limitation becomes a mixed question of fact and law and thus, on plain reading of the plaint, the suit cannot be held to be barred by limitation. Whether the suit is barred by limitation or not, can only be decided after recording evidence. Accordingly, the plea of the applicants that the suit is barred by limitation and thus, the plaint is liable to be rejected, cannot be accepted and it is, accordingly, dismissed. 15. So far as the question of payment of ad valorem Court fee is concerned, it is the case of the applicants that in contravention of section 8 of Hindu Minority and Guardianship Act, 1956, the sale deeds were executed by the mother of the plaintiffs during their minority. Thus, it is clear that they were not the signatories to the sale deeds. Furthermore, in view of section 8(2) of the Hindu Minority and Guardianship Act, 1956, the sale deeds by natural guardian cannot be executed in respect of any part of immovable property of the minor without previous permission of the Court and any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2) of section 8, is voidable at the instance of the minor. 16. Although where the document is sought to be challenged being ''voidable'' then ad valorem Court fee is required to be paid. But where the document/transaction is void, then a suit for declaration simpliciter with fixed court fee would be maintainable. 16. Although where the document is sought to be challenged being ''voidable'' then ad valorem Court fee is required to be paid. But where the document/transaction is void, then a suit for declaration simpliciter with fixed court fee would be maintainable. In the present case, there is nothing on record to show that the sale deeds in respect of the share of the minors were executed by their mother after obtaining permission from the Court. 17. A document may be voidable because of fraud, etc. but in a given case, a document may be voidable because of violation of any mandatory provision of law, without requiring any further proof. Section 8 of the Hindu Minority and Guardianship Act, 1956 makes it mandatory for the natural guardian to obtain permission of the Court but by making the said sale deed as ''voidable document'' the statute has given a power to the minor to waive his objection with regard to the genuineness of the document. Therefore, this Court is of the view that where a document is ''voidable'' because the same was executed in violation of any mandatory provision of law, then the plaintiff is not required to pay the ad valorem court fee. 18. Under these circumstances, this Court is of the considered opinion that the suit for mere declaration with payment of fixed Court fee is maintainable and it cannot be said that the suit has been filed in order to avoid the sale deeds executed by the mother of the plaintiffs. On the contrary, in view of section 8 of the Minority and Guardianship Act, 1956, the sale transaction is ''voidable'' at the instance of minor. Accordingly, this Court is of the considered opinion that the trial Court did not commit any mistake in rejecting the application filed by the applicant under Order 7 rule 11 of CPC. 19. Accordingly, this revision fails and is hereby dismissed.