Bandru Mahato Vs Hublal Mahato And Anr.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Second Appeal No. 156 of 2017

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Bandru Mahato, son of late Karmu Mahato, resident of Village Kanchanpur, P.O. & P.S. Govindpur, District Dhanbad.

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… … Plaintiff/Respondent/Appellant

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Versus

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1 (a).Chandwa Devi, wife of late Hublal Mahato; (Dead & Deleted vide order dated 23.02.2023).

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1 (b). Phatik Mahato, son of late Hublal Mahato;

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1 (c). Tupan Mahato @ Tupal Mahato, son of late Hublal Mahato; No. 1. (a) to 1.(c) are residents of Village Kanchanpur, Mahubani, P.O. Dhario, P.S. Govindpur, District Dhanbad.

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1 (d). Nehali Devi, daughter of late Hublal Mahato and wife of Churaman Mahato, resident of Mathshpur, P.O. Daludih, P.S. Rajganj, District Dhanbad;

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1 (e). Ratni Devi, daughter of late Hublal Mahato and wife of Rooplal Mandal, resident of Sobanpur, P.O. Salgadih, P.S. Narayanpur, District Jamtara;

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1 (f). Parbati Devi, daughter of late Hublal Mahato and wife of Balram Saw, resident of Kenduwa, P.O. & P.S. Kusunda, District Dhanbad;

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1 (g). Akli Devi, daughter of late Hublal Mahato and wife of Churaman Mahato, resident of Village Kanchanpur, Mahubani, P.O. Dhario, P.S. Govindpur, District Dhanbad;

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1 (h). Mira Devi, daughter of late Hublal Mahato and wife of Goberdhan Mandal, resident of Village Simaila, P.O. Salgadih, P.S. Narayanpur, District Jamtara.

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… … Defendants/Appellants/Respondents

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Mangru Mahato, son of late Karmu Mahato, resident of Village Kanchapur, P.O. & P.S. Govindpur, District Dhanbad. … … Defendant/Respondent/Respondent ---

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant : Mr. Rohan Mazumdar, Advocate For the Respondents : Mr. P.K. Mukhopadhyay, Advocate : Mr. Wazid Ali, Advocate : Mr. S.K. Murti, Advocate ---

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11 /16.01.2025

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1. Heard the learned counsel appearing on behalf of the parties.

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2. This appeal has been filed against the judgment dated 15.02.2017 (decree signed on 21.02.2017) passed by the District & Sessions Judge VIII, Dhanbad in Title appeal No. 38 of 2011 whereby

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the first appellate court has been pleased to allow the appeal preferred by the respondent and has set aside the judgment dated 31.03.2011 (decree signed on 18.04.2011) passed by learned Sub-Judge VI, Dhanbad in Title Suit No. 174 of 1988. The learned Sub-Judge had decreed the suit filed by the plaintiff (Appellant herein) and the decree has been set aside by the 1^st appellate court.

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3. The suit was filed by the appellant-plaintiff for the following relief:-

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a) For cancellation of sale deed No. 14222 dated 15.06.1973 executed by plaintiff’s mother to defendant No.1.

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b) For declaration of plaintiff’s half share over an area of 8.14 decimals being the western side of plot No. 1184 specifically and described in the schedule below.

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c) For confirmation of possession alternatively if the plaintiff be deemed to have been dispossession, then for recovery of possession.

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d) For permanent injunction restraining the defendants from their servant and agents from interfering in any manner if the possession of the plaintiff over the property described in schedule below.

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e) For cost of the suit.

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f) For any other or further relief to which the plaintiff entitled to.

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Schedule

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District- Dhanbad, P.S. Gobindpur, Mouza- Kanchanpur, Khata No. 38, Plot No. 1184 out of 54 decimals on the western side 13.5 decimals.

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North- Tank of the plaintiff, South- Village Road, East- Thakur Mahato’s house, West- Well

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4. This appeal was admitted on 24.09.2018 to be heard on

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following substantial question of law:-

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“Whether the learned appellate court had failed to interpret Article 60 and 109 of the Indian Limitation Act as well as Section 8 of Hindu Minority and Guardianship Act in the correct perspective as there was no partition of the ancestral property belonging to the father of the plaintiff and further the sale deed under challenge did not obtain any permission from the court which is the mandate of Section 8 of the Act of 1956?”

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5. The case of the plaintiff in short was that the suit plot under Mouza Kanchanpur was situated under Khata No. 38 plot No. 1184 area 54 decimal which was recorded in the name of Dukhi Mahato and

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his four brothers having equal shares and it was pleaded during the course of trial that the suit property was partitioned amongst the brothers but at the same time it was pleaded in paragraph 4 of the plaint that the recorded tenant Kanhai did not take his share in plot No. 1184 while other brothers got their 1/4^th share. As such all the four brothers were having 13.5 decimals of land. It was further pleaded that Dukhi Mahato died leaving behind three sons namely Hiralal, Govind and Jailal and the partition took place amongst Hiralal, Govind and Jailal. After partition, 13.5 decimals of suit property became in exclusive share of Jailal. Subsequently, Jailal died leaving behind his only son Karmu and wife Soniya. Thereafter, Karmu constructed a house on the western side of the suit plot measuring 8 yards in length and 2 1/5 yard in breath with a kotha on it and lived with his family consisting of his two sons Mangru and Bandru and his wife Sonia. At the relevant of point of time Bandru was hardly aged two years when his father died and the plaintiff’s mother Sonia died around 10 years ago from the date of plaint and the plaintiff at the relevant point of time of filing the plaint was about 23 years of age and he attained the age of majority in 1986 and was living in the portion of the said house and his brother, Mangru was living in the adjoining room. Bandru Mahato was the plaintiff, Mangru Mahato was the defendant and Hublal Mahato was the co-defendant.

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6. It was also pleaded that the defendant No.1 in the last week of November threatened the plaintiff to hand over the vacant possession of the house as the defendant No. 2 had sold his share in the land as well as the house to defendant No. 1 in the March of 1983 and the defendant No. 1 also disclosed to the plaintiff that the mother namely Sonia during the minority of the plaintiff had sold his share on 15.06.1973 through a registered sale deed and consequently the plaintiff came to know about the registered sale deed executed by his mother way back on 15.06.1973 when he was minor. On 02.12.1988 the plaintiff obtained certified copy of the registered deed vide No. 5266 dated 13.03.1973 executed by Mangru Mahato and asserted that

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a false recital was made that the plaintiff’s brother namely defendant No. 2 was the owner to the extent of 8 decimals of land on plot No. 1184 Khata No. 38 and purported to sell half of the room so constructed with vacant land giving a wrong boundary.

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7. It was the case of the plaintiff as to how Mangru Mahato, the defendant No. 2 could get 8 decimals of land when admittedly Karmu died leaving behind three heirs namely his widow Sonia, son Mangru Mahato and the plaintiff Bandru Mahato. He stated that after partition Karmu had only 1/4^th share of total area of 54 decimals i.e. to say 13.5 decimals of land and consequently Mangru could inherit only 4 and 5/16^th decimals of land although he had executed a sale deed to the extent of 8 decimals of land. The suit was filed for the relief as quoted above.

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8. The defendants had appeared and opposed the suit. It was denied that the plaintiff attained the age of majority only in the year 1986. It was also pleaded that while in possession Mangru sold 8 decimal of land in plot No. 1184 out of the land possessed by him in the plot together with structure with specific boundary by registered deed dated 13.03.1973 and put the defendant No. 1 in possession thereof and similarly Sonia acting for herself and for her minor son Bandru being in urgent necessity for meeting family expenses, sold 4 decimals of land in plot No. 1184 including the structure for valuable consideration by a registered deed of sale dated 15.06.1973 in presence of Mangru Mahato and she had put the defendant No. 1 in possession.

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9. The learned counsel has submitted that altogether seven issues were framed including the point as to whether the plaintiff was entitled for a decree of cancellation of sale deed dated 15.06.1973 and further whether mother of the plaintiff was entitled to execute the sale deed for her minor son without the permission of the court and whether the sale deed executed in favour of defendant No. 1 was voidab-initio .

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10. The learned counsel for the appellant has submitted that while deciding issue No. 8 in paragraph 25 it was recorded that it was admitted by defendant No. 1 that the property of Khata No. 38 plot No. 1184 was never partitioned amongst the five brothers and therefore, no question arose that the suit property had come in exclusive share of Joila.

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11. So far as the point of limitation is concerned, the same was decided by para-No. 26 of the trial court’s judgment and it was held that the transfer of minor’s property by de-facto guardian and without legal necessity was void-ab-initio and hence it was not required to be set aside within three years from attaining his majority and the learned trial court held that the suit was not barred by limitation.

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12. The learned trial court also held that the plaintiff had valid cause of action and it was found that the suit was maintainable and the plaintiff was entitled to get relief as prayed in the suit.

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13. The suit was decreed on contest. The registered sale deed No. 14222 dated 15.06.1973 executed by Sonia (mother of the plaintiff) was declared to be void-ab-initio and the sale deed was declared to be null and void and the right title and possession of due share of the plaintiff described in Schedule-A of the plaint was restored.

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14. The appellate court formulated the following points for determination: -

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“Point No.-1 :-

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Whether the suit is barred by law of limitation?

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Point No.-2 :-

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Whether the sale deed bearing no. 14222 dated 15.6.1973 executed by plaintiff's mother in favour of defendant no.-1 is void ab-initio and fit to be cancelled?

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Point No.-3 :-

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Whether plaintiff is entitled for a decree of cancellation of the sale deed bearing no. 14222 dated 15.6.1973?

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Point No.-4 :-

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Whether the plaintiff is entitled for half share over an area of 8.14 decimals in plot no. 1184 under khata no. 38? Point No.-5 :-

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Whether the learned court below properly appreciated the evidence on record or not?”

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15. While deciding point of determination nos. 1, 2 and 3, it was also admitted by the parties that there was partition amongst the five brothers and one of the brothers, namely, Kanhai did not take any share in the suit plot, hence it was divided in the four equal share, consisting of 13.5 decimals each. Dukhi Mahato died leaving behind three sons namely Hiru, Govinda and Jaila. This fact was also not denied by the defendants. The suit plot measuring 13.5 decimals fell in exclusive share of Jaila only. Jaila died leaving behind his only son Karmu and Karmu died leaving behind two sons, plaintiff and Mangru and a widow Sonia.

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16. The learned 1^st appellate court considered the argument that the sale deed executed by the mother of the plaintiff was void-ab-initio and by referring to the judgment passed by Hon’ble Supreme Court in the case of Narayan Vs. Babasaheb & Others reported in AIR 2016 (Supreme Court) 1666 , wherein it was held that that once a transaction takes place in the name of the minor which is in contravention of the Hindu Minority and Guardianship Act , 1956 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 and to impeach the transfer of immovable property, the minor has to file a suit within the prescribed period of three years after attaining majority. The appellate court held that the suit was filed after three years from the date of attaining majority and therefore the suit itself seeking setting aside of the sale deed dated 15.06.1973 was barred by limitation and therefore, the plaintiff was not entitled for the cancellation of sale deed dated 15.06.1973.

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17. With regard to declaration of the share of the plaintiff, the learned court while deciding Point No. 4 recorded that the plaintiff himself had said that 8 decimals of land was sold by Mangru Mahato, his elder brother through a registered deed of sale i.e Exhibit 3 which was not set aside till the date of the judgment and the plaintiff had brought the suit for cancellation of sale deed by his mother to the

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extent of 4 decimals of land. The learned appellate court while deciding Point No. 4 recorded that the plaintiff had got no right, title and possession over the suit land and also referred to the document on record i.e. Exhibit A series, B series and D/1 from which it transpired that the defendant No. 1 was in possession of the suit land.

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18. The learned appellate court held that the plaintiff was not entitled for half share in the suit property claimed and therefore, the Point No. 4 was decided against the plaintiff. The learned appellate court ultimately allowed the appeal and set aside the judgment and decree.

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Argument of the appellant.

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19. The learned counsel for the appellant while assailing the judgment passed by the learned 1^st appellate court has submitted that there was no partition amongst the appellant and his brother and their mother at any point of time and therefore, it was only undivided portion of the property which was sold by the plaintiff. He has submitted that this aspect of the matter has not been taken care of by the learned 1^st appellate court and therefore, the property being joint family property, the parties would be governed by Article 59 of the Indian Limitation Act and not by Article 60 of the Indian Limitation Act and the point of limitation would commence from the date of knowledge.

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20. The learned counsel for the appellant has submitted that defendant No. 2 did not file the written statement and accordingly he did not contest the suit.

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Arguments of the respondent.

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21. On the other hand, the learned counsel appearing on behalf of the respondents has opposed the prayer and has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Narayan Vs. Babasaheb and others reported in (2016) 6 SCC 725 and has submitted that the learned appellate court had rightly held that the suit was barred by limitation and he has referred paragraph 24 to 29 of the said judgment.

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Findings of this Court.

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22. After hearing the learned counsel of the parties and considering the facts and circumstances of this case, the foundational pleadings and the findings recorded by the learned trial court and appellate court has already been placed by the learned counsel on behalf of the appellant which have already been recorded above. This Court finds that the substantial question of law essentially arises with respect to interpretation of Article 60 and 109 of the Indian Limitation Act as well as Section 8 of the Hindu Minority and Guardianship Act which has been referred in the substantial question of law as framed by this Court on 24.09.2018 and quoted above.

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23. This Court finds that admittedly the property involved in the present case was transferred by the mother of the plaintiff in favour of the defendant No. 1 vide sale deed no. 14222 dated 15.06.1973 without obtaining the any permission from the Court while the plaintiff was minor and the suit was filed after expiry of three years from the date when the plaintiff attained majority. A clear finding has been recorded by the learned 1^st appellate court that the plaintiff attained majority in the year 1983 and filed the suit in 1988.

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24. The trial court held that the sale deed was void-ab-initio and consequently held that the suit was not barred by limitation. The appellate court held that the sale deed was voidable and referred to Article 60 of the Indian Limitation Act to hold that the suit was barred by limitation.

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25. The learned 1^st appellate court recorded that the case of the plaintiff was that Mangru, brother of the plaintiff sold 08 decimals of land in favour of defendant No. 1 vide sale deed bearing No. 5266 dated 13.03.1973 in excess of his share. However, the said sale deed executed by Mangru Mahato in favour of defendant No. 1 was not under challenge. The learned 1^st appellate court has recorded that it failed to understand that how half share of the plaintiff will be 8.14 decimals when it is the case of the plaintiff itself that Dukhi Mahato, ancestor of the plaintiff had only 13.5 decimals share in plot No. 1184.

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The learned 1^st appellate court further held that the sale deed bearing No. 14222 dated 15.06.1973 is voidable at the instance of the plaintiff in view of section 8(3) of the Hindu Minority and Guardianship Act. The said sale deed can be declared void only at the instance of the plaintiff. Since the suit for cancellation of the said sale deed was filed beyond the period of limitation, the learned 1^st appellate court was of the view that the said sale deed was valid and accordingly, point of determination No. 2 was also decided against the plaintiff and it was held that in view of the findings plaintiff was not entitled for a decree of cancellation of the sale deed No. 14222 dated 15.06.1973. The learned 1^st appellate court held that plaintiff has got no right, title and possession over the suit land and observed that even from the document available on record i.e. Ext. A series, B series and Ext. D/1, it transpired that the defendant No. 1 was in possession of the suit land. The learned 1^st appellate court held that the plaintiff was not entitled for half share in the suit property as claimed. The learned 1^st appellate court allowed the appeal and set-aside the trial court’s judgement and decree.

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26. So far as the applicability of Article 109 of the Indian Limitation Act is concerned, the same does not come in to play in view of the fact that it deals with limitation for a suit by a Hindu governed by Mitakshara Law to set aside his father’s alienation of ancestor property. In the present case, the alienation is by the mother of the plaintiff and therefore, the said article does not have any applicability.

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27. Article 60 of the Indian Limitation Act clearly provides for the limitation with regard to prayer to set aside a transfer of property made by guardian of the ward which is three years from the date when the ward attains majority in the judgment reported in (2019) 20 SCC 633 [ Murugan and others V. Kesava Gounder (Dead) through legal representatives and others] and also in the judgment reported in ( 2016) 6 SCC 725 (Supra) has held that sale in contravention of

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Section 8 (2) is voidable and the point of limitation would be three years from the date the minor attains majority.

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28. Article 60 of the Limitation Act, 1963 is quoted as under:-

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Description of Suit	Period of Limitation	Time form which period begins to run
60.To set aside a
transfer of property
made by the guardian
of a ward-
(a) by the ward who	Three Years	When the ward
has attained majority;		attains majority.
(b)……….

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29. The aforesaid provision was subject matter of consideration in ( 2016) 6 SCC 725 (Supra) wherein it has been held in para 22 to 30 as follows: -

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“22. 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.

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23. Hence, the present transaction on the face of it is in contravention of the mandatory provisions laid down by the 1956 Act.

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24. 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.

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25. A close analysis of the language of Article 60 would indicate that it applies to suits by a minor who has attained majority and further by his legal representatives when he dies after attaining majority or from the death of the minor. The broad spectrum of the nature of the suit is for setting aside the transfer of immovable property made by the guardian and consequently, a suit for possession by avoiding the transfer by the guardian in violation of Section 8(2) of the 1956 Act. In essence, it is nothing more than seeking to set aside the transfer and grant consequential relief of possession.

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26. There cannot be any doubt that a suit by quondam minor to set aside the alienation of his property by his guardian is governed by Article 60. To impeach the transfer of immovable property by the guardian, the minor must file the suit within the prescribed period of three years after attaining majority.

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27. The Limitation Act neither confers a right nor an obligation to file a suit, if no such right exists under the substantive law. It only provides a period of limitation for filing the suit.

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28. Hence, we are of the considered opinion that a quondam minor plaintiff challenging the transfer of an immovable property made by his guardian in contravention of Sections 8(1) and (2) of the 1956 Act 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.

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29. The High Court as well as the trial court erred in applying Article 109 of the Act, where Article 109 of the Act clearly speaks about alienation made by father governed by Mitakshara law and further courts below proceeded in discussing about the long rope given under Article 109 of the Act and comparatively lesser time specified under Article 60 of the Act. It is well-settled principle of interpretation that inconvenience and hardship to a person will not be the decisive factors while interpreting the provision. When bare reading of the provision makes it very clear and unequivocally gives a meaning it was to be interpreted in the same sense as the Latin maxim says dulo lex sed lex, which means the law is hard but it is law and there cannot be any departure from the words of the law.

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30. Hence, in view of our above discussion, 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 we arrive 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 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.”

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30. In the judgement passed by the Hon’ble Supreme Court reported in (2019) 20 SCC 633 (supra) the aforesaid judgement has been considered and it has been held that even the Article 65 of the

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Limitation Act will not be applicable. Paragraph 11 of the aforesaid judgement is quoted as under:-

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“11. Now, coming to Article 65, on which reliance has been placed by the learned counsel for the appellants. The said period of limitation is available when suit is filed for possession of immovable property on any interest therein based on title. The present is a case where by registered sale deeds the property was conveyed by the father of the minor was eo nomine party. Thus, when the sale deed was executed by Balaraman he purported to convey the right of the minor also. The sale deeds being voidable and not void, the plaintiffs cannot rely on Article 65. We, thus, are of the view that the first appellate court and the High Court has rightly held that limitation for suit was governed by Article 60 and the suit was clearly barred by time.”

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31. This Court is of the view that the appellate court has rightly referred to Section 60 of the Indian Limitation Act to hold that the suit was barred by limitation particularly in view of the fact that the sale was voidable and not void-ab-initio and was required to be filed within 3 years from the date of attaining majority by the plaintiff.

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32. This Court further finds that the appellate court after considering the materials, recorded that the defendant No. 1 was in possession of the suit land and that the plaintiff was not entitled for half share of the suit property as claimed. The appellate court also recorded that 8 decimals of land in the plot No. 1184 was already sold by the elder brother of the plaintiff who was defendant No. 2 through a registered sale deed and till the date of passing of the appellate court judgment, the sale deed was not set aside.

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33. This Court is of the view that the learned appellate court rightly decided Point No. 2 as well as Point No. 3 by holding that the sale deed dated 15.06.1973 was neither void-ab-initio nor the plaintiff was entitled for a decree of cancellation of the sale deed as the suit was barred by limitation.

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34. This Court is of the view that the learned appellate court has rightly decided the aforesaid issues and rightly interpreted the provisions of Article 60 and 109 of the Indian Limitation Act as well

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as applicability of Section 8 of Hindu Minority and Guardianship Act, 1956 as the suit challenging the sale deed no. 14222 dated 15.06.1973 has been rightly held to be barred by limitation.

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35. The question of law framed by this Court vide order dated 24.09.2018 is accordingly decided against the appellant (plaintiff) and in favour of the respondents and it is held that the learned 1^st appellate court has rightly interpreted Article 60 and 109 of the Indian Limitation Act as well as Section 8 of Hindu Minority and Guardianship Act in the correct perspective even if there was no partition of the ancestral property belonging to the father of the plaintiff and even if the sale deed under challenge was executed without obtaining any permission from the court under Section 8 of Hindu Minority and Guardianship Act, 1956 as the suit was barred by limitation.

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36. Consequently, the present appeal is hereby dismissed.

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37. Pending interlocutory application, if any, is dismissed.

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38. Let this order be communicated to the concerned court through FAX/E-mail.

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(Anubha Rawat Choudhary, J.)

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Rakesh/-A.F.R.

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