Facts : The Plaintiff/Respondents 1 to 5 (P No 2 is minor brother of P No 1 and P No 3-5 are married sisters of P No 1) filed Civil Suit against the 1st Defendant (Appellant herein) and 2nd Defendant (Respondent No. 6 and mother of P No 1-5). The Suit was filed seeking the relief of partition and for a declaration that the sale deed executed in 1982 by Defendant No. 2 in favour of Defendant No. 1 are not binding and to set aside the same and also for recovery of possession of the Suit Schedule property and for mesne profits. The original owner of the property was father of P No 1-5 and same was an ancestral property. Father died in the year 1972. The trial Court, after a full-fledged trial, has come to the conclusion that Under Section 11 of the Hindu Minority and Guardianship Act, 1956 the sale made by the de facto guardian of the minor i.e. the mother is void ab initio and decreed the suit by setting aside the sale and partitioning the property amongst the legal heirs.

Assailing the said judgment and decree, the 1st Defendant has filed RCA on the file of the District Judge. The issue of limitation was raised by the Defendants before the 1st appellate court contending that the Suit is barred by limitation as per Article 60 of the Limitation Act, 1963 and as on the date of filing of the Suit, except the 2nd Plaintiff (Waman), all other Plaintiffs are majors and hence the Suit ought to have been instituted within three years as envisaged by Article 60 of the Act. The appellate Court came to the conclusion that Article 60 of the Act is not applicable to the facts of the case as the 2nd Defendant is not the guardian appointed by the Court. Therefore, Article 109 of the Act, which prescribed 12 years is applicable where the alienation made by the father of the ancestral property by the Hindus who are governed by the Mitakshara law and hence the Suit filed in the year 1989 is well within limitation.

The unsuccessful and unsatisfied 1st Defendant approached the High Court by way of Second Appeal. The High Court dismissed the appeal holding that Article 109 of the Act applies to the facts of the case and the Suit is well within limitation. Against the said order, the present appeal was filed before the Supreme Court.

Issue : Whether the Suit filed in the year 1989 for setting aside the sale deed dated 20.01.1982 is governed under which Article of the Limitation Act and whether the same is within limitation or not?

View : Upon father’s death, Mother is a natural guardian and she is not required to be appointed by a Court. A bare reading of Section 8(1) of the 1956 Act indicates that it empowers the natural guardian to do all the acts which are necessary or reasonable or proper for the benefit of the minor. Section 8(2)(a) of the 1956 Act prescribes that either the purchaser or the seller should obtain the permission of the District Court to transfer the property by sale. Hence, the present transaction on the face of it is in contravention of the mandatory provisions laid down by the 1956 Act.

When once a transaction takes place in the name of the minor which is in contravention of the 1956 Act and which is not done for legal necessity, such transaction is voidable and unless such a transaction is sought to be impeached or set aside, the question of recovery of possession of that property does not arise. The finding of the lower appellate court, that as she was not the guardian appointed on the day to alienate the Suit Schedule property, therefore Article 109 of the Act applies which gives 12 years limitation from the day the alienee takes possession of the property and the alienation made by the father of ancestral property of the Hindus who are governed by Mitakshara law, and that the Suit is well within limitation, cannot be sustained.

Held :   The Hon’ble Court was of the considered opinion that a quondam minor Plaintiff challenging the transfer of an immovable property made by his guardian in contravention of Section 8(1)(2) of the Hindu Minority and Guardianship Act 1956 which states the powers of a Natural Guardian, and who seeks possession of property can file the Suit only within the limitation prescribed Under Article 60 of the Act and Articles 109, 110 or 113 of the Act are not applicable to the facts of the case. Hence, the limitation to file the present Suit is governed by Article 60 of the Act and the limitation is 3 years from the date of attaining majority. When once the Court arrives at a conclusion that Article 60 of the Act applies and the limitation is 3 years, the crucial question is, when there are several Plaintiffs, what is the reckoning date of limitation?

A reading of Section 7 of the Limitation Act, 1963, makes it clear that when one of several persons who are jointly entitled to institute a Suit or make an application for the execution of the decree and a discharge can be given without the concurrence of such person, time will run against all of them but when no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge. In the case on hand, the 1st Plaintiff was 20 years old, the 2nd Defendant was still a minor and the Plaintiffs 3, 4 and 5, who are married daughters, were aged 29, 27 and 25 respectively, on the date of institution of the Suit in the year 1989.

As per Explanation 2 of Section 7 of the Limitation Act, 1963, the manager of a Hindu undivided family governed by Mithakshara law shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property. In this case, Plaintiffs 3 to 5 though majors as on the date of institution of Suit will not fall under Explanation 2 of Section 7 of the Limitation Act as they are not the manager or Karta of the joint family.

The first Plaintiff was 20 years old as on the date of institution of the Suit and there is no evidence forthcoming to arrive at a different conclusion with regard to the age of the 1st Plaintiff. In that view of the matter, the Suit was instituted well within three years of limitation from the date of attaining majority as envisaged Under Article 60 of the Act. Hence, in view of the above discussion, the Court held that the appeal was devoid of merits and it deemed it appropriate to dismiss the appeal. [CA No. 3486 of 2016 ( (CA. No. 15966 of 2012 dt  05.4.2016]

Editorial: The judgment lays down principles to be followed to determine limitation to file suit by a minor on attaining majority.

SWAMI VIVEKANANDA