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2022 DIGILAW 624 (KER)

V. Biju v. Kalyani Pillai

2022-07-25

SATHISH NINAN

body2022
JUDGMENT : The plaintiffs, two in number, filed the suit for declaration of their 2/7 rights over the plaint schedule property, to set aside Ext.A2 Sale Deed to the said extent, and for partition. The suit was concurrently dismissed by the courts. 2. The plaint schedule property has an extent of 64 cents. The plaintiffs and defendants 6 to 10 claim title over the property as per three Sale Deeds namely, Exts.A3 and A4 Sale Deeds of the year 1959 and 1961, and another Sale Deed number 449/1965. In the year 1975, the property was conveyed in favour of the predecessor of defendants 1 to 5 as per Ext.A2 Sale Deed. At the time of execution of the Sale Deed, the first plaintiff was a minor aged 1 1/2 years and was represented by his mother, the 9th defendant. The second plaintiff was in the womb. The suit has been filed on the plaintiff's attaining majority. Ext.A2 Sale Deed is challenged mainly on two grounds viz., that it is not supported by adequate consideration, thus adversely affecting the interests of the minors; and secondly, the mother-9th defendant, was not competent to represent the minors in the sale. 3. The trial court, though found that the plaintiffs have right over 43 cents out of the plaint schedule 64 cents, dismissed the suit holding that the plaintiffs have not established their right over the entire plaint schedule property. On appeal, the first appellate court held the suit to be barred by limitation, and accordingly affirmed the dismissal of the suit. It is aggrieved thereby that the Regular Second Appeal is filed. 4. Heard Sri. Nimesh Thomas, learned counsel for the appellants-plaintiffs and Sri. R. Rajasekharan Pillai, learned counsel for respondents 1 to 3-defendants 1 to 3, and Sri. Abraham Jacob George, learned counsel appearing on behalf of respondents 6 to 9, on the following substantial questions of law :- (1) When the suit is not ex facie barred by limitation and there was no plea of limitation urged by the defendants, nor an issue raised regarding limitation, did not the lower appellate court err in dismissing the suit holding it to be barred by limitation? (2) Is the suit barred by limitation? (2) Is the suit barred by limitation? (3) On the finding by the Courts that a portion of the plaint schedule property is the joint family property of the plaintiffs, is Ext.A2 Sale Deed executed by the mother as guardian of the minors void in so far as their shares over that portion of the property? (4) Has there not been a failure to exercise jurisdiction by the Courts when it omitted to consider the challenge against Ext.A2 Sale Deed on the ground of, inadequacy of consideration resulting in adversely affecting the minor's interest? 5. Section 3(1) of the Indian Limitation Act, 1963(hereinafter referred to as, “the Act”) reads thus, 3. Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. In V.M. Salgaocar & Bros. v. Board of Trustees of Port of Mormugao & Anr. (2005) 4 SCC 613 , the Apex Court held, “20. The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation.” Limitation is a jurisdictional issue and it is for the Court to consider whether a suit is instituted within time. This is irrespective of a plea of limitation by the defendant. [See in Foreshore Cooperative Housing Society Ltd. v. Praveen D. Desai (Dead) through Legal Representatives and Ors. (2015) 6 SCC 412 ]. Limitation is a mixed question of law and fact. Starting point of limitation is determinative as to whether a suit is filed within the period stipulated under the Act; of course, this is subject to Sections 4 to 24 of the Act which deal with disabilities and exemptions. In Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta & Ors. Limitation is a mixed question of law and fact. Starting point of limitation is determinative as to whether a suit is filed within the period stipulated under the Act; of course, this is subject to Sections 4 to 24 of the Act which deal with disabilities and exemptions. In Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta & Ors. (2006) 5 SCC 638 , the apex Court held, “A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact”. 6. In the plaint, the plaintiffs have stated their age. The same is not disputed by the defendants. The age of the plaintiffs are mentioned in Ext.A2 Sale Deed. There was no contest or issue regarding the age of the plaintiffs. However, the first appellate court held that there is no evidence regarding the age and date of birth of the plaintiffs, and proceeded to hold that the suit is barred by limitation. There was no plea or issue in the said regard. It was not apparent on the face of the plaint that the suit is time barred; on the contrary, it is otherwise. Hence, the finding of the appellate Court that the suit is barred by limitation, is unsustainable and is accordingly set aside. 7. Even otherwise, the suit is filed well within the period of limitation. Under Article 59 of the Act, the period of limitation for challenging an instrument is, three years from the date of knowledge of the transaction; under Article 60, the period of limitation prescribed for a minor to challenge a transfer made by guardian is three years after the minor attains majority. In terms of Section 6 of the Act, the minor on attaining majority would get the same period of limitation as is provided for filing a suit. However, this is subject to the cap of three years as stipulated under Section 8 of the Act. It is further to be noticed that, the explanation to Section 6 clarifies that even a child in the womb is included within the scope of the word “minor”, mentioned in the Section. The suit has been instituted within three years of the plaintiffs attaining majority. It is further to be noticed that, the explanation to Section 6 clarifies that even a child in the womb is included within the scope of the word “minor”, mentioned in the Section. The suit has been instituted within three years of the plaintiffs attaining majority. Hence the suit is filed within the period of limitation. Substantial questions of law nos.1 and 2 are answered accordingly. 8. The plaint schedule property is 64 cents. It is the plaintiffs' case that, the plaint schedule property was purchased utilising the consideration obtained by sale of another property belonging to the family, and therefore, the plaint schedule property partakes the character of joint family property. Thus, the plaintiffs’ got right by birth in the family property. The mother was not competent to represent them in Ext.A2 sale deed, it is contended. 9. The first question that falls for determination is regarding the character of the plaint schedule property, as to whether it is a joint family property or not. The trial court found that, though the plaintiffs claim that the plaint schedule property was acquired by the family under three Sale Deeds, only two of them viz. Exts.A3 and A4 of the year 1959 and 1961 have been produced. The third deed namely, Sale Deed No.449/1965 has not been produced. Exts.A3 and A4 relate only to 43 cents. The trial court noticed that, Exts.A3 and A4 Sale Deeds recite that the consideration for the same have been raised by sale of the family properties. Accordingly it was held that the acquisition partakes the character of a joint family property. Since the title deed for the remaining 21 cents was not produced, it was held that the plaintiffs have failed to establish the same to be family property. The learned counsel appearing for respondents 1 to 3 would vehemently contend that, the evidence on record is insufficient to conclude that the nature of acquisition under Exts.A3 and A4 Sale Deeds partake the character of a joint family property. He is entitled to challenge such finding against him even without an appeal or cross objection in the light of Order XLI Rule 22 of the Code of Civil Procedure, the decree being in his favour. Whether the evidence on record is sufficient enough to find that the property is a family property, is to be considered. 10. He is entitled to challenge such finding against him even without an appeal or cross objection in the light of Order XLI Rule 22 of the Code of Civil Procedure, the decree being in his favour. Whether the evidence on record is sufficient enough to find that the property is a family property, is to be considered. 10. The trial court held the acquisitions under Exts.A3 and A4 to be joint family properties. Ext.A2 Sale Deed was executed by the 9th defendant, who is the mother of the plaintiffs, acting as the guardian. Section 12 of the Hindu Minority and Guardianship Act, 1956, (hereinafter referred to as, “the HMG Act”) stipulates that, a guardian cannot be appointed in respect of the undivided interest of a minor in the joint family property, where the property is under the management of an adult member of the family. However, the jurisdiction of the High Court is saved. Section 12 reads thus:- “12. Guardian not to be appointed for minor's undivided interest in joint family property.– Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest. Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.” 11. Section 6 of the HMG Act, which enumerates the natural guardians of a minor Hindu for his person and property, specifically excludes the interest of the minor in joint family property. The relevant portion of Section 6 reads thus, “6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are— ………….”. Therefore, natural guardians under Section 6 are not competent to represent minor's undivided interest in the joint family property, in the capacity as natural guardian. Resultantly, a natural guardian could not seek for his appointment as guardian under Section 8(5) of the HMG Act for representing the interest of the minor in the joint family property. In M. Arumugam v. Ammaniammal and Ors. Resultantly, a natural guardian could not seek for his appointment as guardian under Section 8(5) of the HMG Act for representing the interest of the minor in the joint family property. In M. Arumugam v. Ammaniammal and Ors. (2020) 11 SCC 103 , the Apex Court held that, the interest of the minor in the joint family property could not be conveyed by the natural guardian. Further, in Narayan Bal and Ors. v. Sridhar Sutar and Ors. 1996 (8) SCC 54 , the Apex Court held that, if the interest of the minor in a joint family property was conveyed by the Kartha, he being the person in management, no permission under Section 8 of the HMG Act is not necessary. Suffice to notice that, if the minor's interest in a joint family property is conveyed by any person other than the adult member in management of the family, the conveyance would be void as violative of Section 12. In the case at hand, Ext.A2 is executed by the mother as the guardian. Who was the adult member of the family in management of the property at the relevant time, assumes significance. Unless it is proved that the mother was in management of the family property, she was not competent to represent the minors’ interest. Such conveyance would be void in so far as it relates to the interests of the minors. Substantial question of law No.3 is answered accordingly. The above is yet another matter falling for determination in the suit, but not adjudicated. 12. Even if the property covered under Ext.A2 is not a joint family property, still, in terms of Section 6 read with Section 8 of the HMG Act, the natural guardian of a Hindu minor boy or an unmarried girl is -“the father, and after him the mother”. In the cross-examination of PW1, he has stated that the father is alive. In the light of the judgments of the Apex Court in Jijabai Vithalrao Gajre v. Pathankhan and Ors. 1970 (2) SCC 717 , Githa Hariharan (Ms) and Anr. v. Reserve Bank of India and Anr. (1999) 2 SCC 228 , the words, “after him”, need not mean “after the lifetime”. In the light of the judgments of the Apex Court in Jijabai Vithalrao Gajre v. Pathankhan and Ors. 1970 (2) SCC 717 , Githa Hariharan (Ms) and Anr. v. Reserve Bank of India and Anr. (1999) 2 SCC 228 , the words, “after him”, need not mean “after the lifetime”. Even if the father is alive, but was not available at the relevant time, or if the father was not looking after the interests of the minor as a guardian, the mother is competent enough to act as a natural guardian. However, if the father was alive and available, and no circumstances as above are brought out, the conveyance if any executed by the mother as the guardian would be as one by a defacto guardian. Such conveyance is void in so far as it relates to the minor's share. Conveyance by a defacto guardian is void. [Panni Lal v. Rajinder Singh & Anr. (1993) 4 SCC 38 , Madhegowda (Dead) by Lrs. v. Ankegowda (Dead) by Lrs. and Ors. (2002) 1 SCC 178 ]. Therefore, the question as to whether the father was alive, and the circumstances which led to the mother acting as the guardian of minors at the time of the execution of Ext.A2 Sale Deed are also of significance. The issue as above also needs to be pondered and dealt with. 13. Taking it to be that it was consequent on the non-availability of the father that the mother acted as the guardian, still, as per Section 8 of the HMG Act, the conveyance being not with the sanction of the Court, is voidable. The plaintiffs allege that the sale consideration was inadequate and thus adversely affected their interests. The Courts have not considered the said contention, thus resulting in a jurisdictional error. Substantial question of law no.4 is answered accordingly. 14. The questions involved in the suit have not been properly urged or dealt with by the Courts. It is only appropriate that the issues as above be raised and considered by the trial Court, afresh. The parties could be granted permission to adduce further evidence. In the light of the legal and factual issues involved as noticed above, such endeavour is necessary for a proper disposal of the suit. 15. Accordingly, the Regular Second Appeal is allowed. The decree and judgment of the courts below are set aside. The parties could be granted permission to adduce further evidence. In the light of the legal and factual issues involved as noticed above, such endeavour is necessary for a proper disposal of the suit. 15. Accordingly, the Regular Second Appeal is allowed. The decree and judgment of the courts below are set aside. The suit is remanded back to the trial court for disposal de novo in the light of the observations in this judgment. 16. Parties to appear before the trial court on 24.08.2022. Since the suit is of the year 1993, I am sure that the trial Court will take note of it and make every endeavour to have the suit tried and disposed of before summer vacation, 2023.