Second Appeal No.11 of 1983

31st July, 1996

Petitioner Counsel: Mr. S. R. DESHPANDE
Respondent Counsel: Mr. W.G. SOMALWAR

Cases Cited:
AIR 1972 Mad.3 [Para 7]
AIR 1918 Mad. 724 [Para 7]
AIR 1969 Ker. 163 [Para 7]
AIR 1953 Bom. 273 [Para 7]

JUDGMENT

JUDGMENT : This appeal is directed against the judgment and decree passed in Regular Civil Appeal No. 265 of 1979 by the District Judge, Buldana on 30th September, 1982 whereby the judgment and decree passed in Regular Civil Suit No.104 of 77 by the Jt. Civil Judge, Junior Division, Buldana on 28th Sept. 1979 dismissing the suit of the plaintiffs/respondents 1 to 6, was reversed and thereby it was declared by the District Judge Buldana that the sale deed dated 7th April 1965 executed by original defendant no.2 and deceased Ganesh in favour of original defendant no.1 with respect to survey no.33/2 is not binding on the joint 6/7th share of the original plaintiffs. It further ordered that the defendant no.1 shall deliver joint possession of 6/7th share in the suit land to the plaintiffs. Therefore, original defendant no.1 is appellant before this Court while original plaintiffs 1 to 6 are the respondents 1 to 6 and original defendant no.2 is respondent no.7. Pending the appeal, it appears that the respondent no.5 Arun has expired and his heirs, respondents 5A to 5D, have been brought on record.

2. The suit property was originally - belonging to Dwarkabai who expired in the year 1950. Dwarkabai had two sons, viz. Ganesh and Dhundiraj. Dhundiraj was father of respondent no.1 to 6 and was husband of respondent no.7. During the life-time of Dwarkabai, she had executed & registered a will dated 26th February, 1949 whereby she bequeathed survey No.33/2 of village Deulghat, District Buldana to her two sons, viz. Ganesh and Dhundiraj in equal shares. The will specified the portions to be allotted to the sons viz. Ganesh and Dhundiraj. Therefore, Dhundiraj became owner of western portion admeasuring 6.6 acres out of survey no.33/2. After the death of Dhundiraj in 1963 that Western half portion was inherited by the respondents. At that time, the respondents 1 to 6 were minor sons and daughters, and respondent no.7 inherited as widow of deceased Dhundiraj. Ganesh and the respondent no.7 for herself and on behalf of her minor children (respondents 1 to 6) sold the suit land to the appellant for a consideration of Rs.14,760/- under registered sale deed dated 7th April 1965 and put the appellant in possession thereof. It is contended by the respondents 1 to 6 that there was no need to sell the suit land and the sale was effected without obtaining prior permission of the District Judge in respect of the minors' property. It was further contended that the sale was not in the interest of the respondents 1 to 6 who were then minors and, therefore, the sale deed is not binding on respondents 1 to 6's 6/7h share in the suit land. Hence the suit for declaration that the sale deed dated 7th April 1965 executed by Ganesh and respondent no.7 in favour of appellant with respect to their joint share in the suit land was not binding on them and for joint possession of their 6/7th share in the suit land, came to be filed.

3. The appellant contested the suit contending that the sale deed executed in favour of appellant by deceased Ganesh and respondent no.7 for herself and for respondents 1 to 6, was valid and was executed for legal necessity. According to appellant, deceased Ganesh, Dhundiraj and respondent no.7 formed joint Hindu family of which deceased Dhundiraj was the Karta. The suit land was treated and enjoyed by Dhundiraj and Ganesh as joint family property and, therefore, after the death of Dhundiraj, there was legal necessity for which the property came to be disposed of. According to him, there was no necessity to obtain permission from the District Court under Section 8 of the Hindu Minority and Guardianship Act. He further contended that Madhukar Deshpande had executed indemnity bond of Rs.6,000/- on 7th April 1965 in favour of appellant to indemnify him if the respondents 1 to 6 avoided the transaction. Thus, according to him, after making proper enquiry, appellant purchased the suit land.

4. The only point which was substantially advanced before this Court by the Advocate for appellant Mr. S.R. Deshpande is that, the suit of plaintiffs/respondents 1 to 6 is barred by limitation. It was submitted that the age of each of respondents 1 to 5 was more than 21 years, admittedly, on the date of presentation of suit as it is evident from the description of parties in the cause title of suit. Only the respondent no.6 is shown to be 20 years old. It is contended on behalf of the appellant that the suit has been filed on 30th March 1977 and the respondent no.6 is born on 12.2.1955 and, therefore, her age on the date of presentation of suit was 22 years, one month and 18 days. It is, therefore, submitted that the age shown as 20 years in the cause title so far as the respondent no.6 is concerned, is incorrect and that she was, in fact, more than 21 years of age. According to appellant, period of limitation for filing of suit by minors to set aside the alienation made by guardian is three year from the date of attaining the majority as provided under Article 60 of the Limitation Act. Therefore, it is submitted that the suit is barred by limitation.

5. The learned counsel for respondents 1 to 6 submitted that the suit is based on title and, therefore, the suit will be governed by Article 65 of the Limitation Act and if the transaction which is intended to be set aside or avoided by this suit is dated 7th April, 1965, the suit filed on 30th March 1977 is very much within limitation. It was further submitted alternatively that even if the suit is governed by Article 60 of the Limitation Act, the cause of action for filing the suit was joint cause of action for all the plaintiffs/respondents 1 to 6 and, therefore, in view of the provisions of Sections 6 and 7 of the Limitation Act read with Article 60 thereof, the plaintiffs/respondents 1 to 6 were entitled to file suit within a period of three year from the attainment of majority by the youngest minor, viz. respondent no.6 and, therefore, the suit is within a period of three years from the attainment of majority by the youngest minor, viz. respondent no.6 and, therefore, the suit is within limitation.

6. It is admitted fact on record that the suit property was of deceased Dwarkabai who had bequeathed the suit property to her two sons, viz. Ganesh and Dhundiraj with the specified portion and that Dhundiraj became owner of half portion from the western side of field survey no.33/2 in the year 1950 as a result of the death of Dwarkabai. The said land of Dhundiraj was inherited by the respondents 1 to 7, as stated earlier, after the death of Dhundiraj in the year 1963 which was ultimately sold by respondent no.7 for herself and for respondents 1 to 6 along with deceased Ganesh. However, so far as the western portion which was of the ownership of the respondents 1 to 6 came to be sold by respondent no.7 being the natural guardian of the respondents 1 to 6 after the death of Dhundiraj. It is important to note that the property of Dhundiraj was a separate property as Dhundiraj had obtained the said property from his mother by Will dated 26th April, 1949. Therefore, the said property cannot be said to be the property belonging to joint family during the life-time of Dhundiraj and after the death of Dhundiraj. During the life-time of Dhundiraj, it was a separate property of deceased Dhundiraj and the respondents 1 to 7 were not possessed of the right in the said property. After the death of Dhundiraj in the year 1963, the respondents 1 to 7 have become owner of the said property being the successor and class-I heirs of deceased Dhundiraj. As the succession was governed under the provisions of the Hindu Succession Act of 1956, the respondents no.1 to 7 being the heirs of deceased Dhundiraj, have succeeded to the property as tenants in common and not as joint tenants, as provided under Section 19 of the said Act. In the result, tenancy in common each sharer has an independent share and ordinarily, cannot act for others or assume the authority of a manager unless so appointed by all others. Therefore, being tenants in common, the heirs would succeed to the property to the extent of their independent share as provided under the Hindu Succession Act even though the property to which they succeeded is a common property. Under these circumstances, one cannot act for the other and, therefore, there is no joint cause of action as required under Section 7 of the Limitation Act. Section 7 lays down that where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. Explanation-I to the aforesaid section lays down that it applies to a discharge from every kind of liability including a liability in respect of any immovable property while Explanation-II lays down that for the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property. This Section has to be considered along with Article 60 of the Limitation Act, which reads as under :-

6. It is admitted fact on record that the suit property was of deceased Dwarkabai who had bequeathed the suit property to her two sons, viz. Ganesh and Dhundiraj with the specified portion and that Dhundiraj became owner of half portion from the western side of field survey no.33/2 in the year 1950 as a result of the death of Dwarkabai. The said land of Dhundiraj was inherited by the respondents 1 to 7, as stated earlier, after the death of Dhundiraj in the year 1963 which was ultimately sold by respondent no.7 for herself and for respondents 1 to 6 along with deceased Ganesh. However, so far as the western portion which was of the ownership of the respondents 1 to 6 came to be sold by respondent no.7 being the natural guardian of the respondents 1 to 6 after the death of Dhundiraj. It is important to note that the property of Dhundiraj was a separate property as Dhundiraj had obtained the said property from his mother by Will dated 26th April, 1949. Therefore, the said property cannot be said to be the property belonging to joint family during the life-time of Dhundiraj and after the death of Dhundiraj. During the life-time of Dhundiraj, it was a separate property of deceased Dhundiraj and the respondents 1 to 7 were not possessed of the right in the said property. After the death of Dhundiraj in the year 1963, the respondents 1 to 7 have become owner of the said property being the successor and class-I heirs of deceased Dhundiraj. As the succession was governed under the provisions of the Hindu Succession Act of 1956, the respondents no.1 to 7 being the heirs of deceased Dhundiraj, have succeeded to the property as tenants in common and not as joint tenants, as provided under Section 19 of the said Act. In the result, tenancy in common each sharer has an independent share and ordinarily, cannot act for others or assume the authority of a manager unless so appointed by all others. Therefore, being tenants in common, the heirs would succeed to the property to the extent of their independent share as provided under the Hindu Succession Act even though the property to which they succeeded is a common property. Under these circumstances, one cannot act for the other and, therefore, there is no joint cause of action as required under Section 7 of the Limitation Act. Section 7 lays down that where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. Explanation-I to the aforesaid section lays down that it applies to a discharge from every kind of liability including a liability in respect of any immovable property while Explanation-II lays down that for the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property. This Section has to be considered along with Article 60 of the Limitation Act, which reads as under :-

“Description of Suit	Period of	Time from which Limitationperiod begins to run.
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 wardattains majority.
(b) by the ward’s legal representative-
(i) When the ward dies within three years from the date of attaining majority;	Three	When the ward attains majority.
(ii) When the ward dies before attaining majority.	Three years	When the ward dies.”

Therefore, the period of limitation will be three years when the ward attains majority. In the facts and circumstances of the present case as it has been found, the property was separate property of deceased Dhundiraj and it was not the property of the joint family and, therefore, it was not open to consider as to whether the transaction was for legal necessity. However, as it was a transfer by guardian. viz. respondent no.7 Dwarkabai for her self and on behalf of the respondents 1 to 6, the transfer was voidable at the instance of minors and the period of limitation for avoiding such transfer was three years after attaining majority. Therefore, the suit was required to be filed on or before completion of 21st year by the minors. So far as the respondents 1 to 5 are concerned, their ages at the time of filing of suit on 30th March 1977 were, admittedly, more than 21 years and, therefore, the suit filed by plaintiffs 1 to 5 i.e. the respondents 1 to 5 was not within limitation. So far as respondent no.6 is concerned, it is only to be scrutinised whether her suit is within limitation or not and if at all her suit is found to be within limitation, whether it will protect the limitation for respondents 1 to 5 on the basis of section 6 and 7 of the Limitation Act.

7. In order to apply the provisions of Section 7 of the Limitation Act, what is required to be considered is, as to whether the respondents 1 to 6 were jointly entitled to file suit or one of them can file suit after removal of disability, because it is well settled principle that when several persons jointly entitled to institute a suit are under any disability, as provided under Section 6 of the Limitation Act, such a suit will have to be by a person whose disability stands removed and who can give discharge and can file suit on behalf of the rest of the persons having disability. However, when several persons are jointly entitled to institute suit, one of them after removal of the disability, is not entitled to represent the others under disability, then in that circumstances, the period of limitation will not run until the disability of all is ceased. It is pertinent to note, therefore, in the present case, whether the suit for setting aside or avoiding the sale deed which is to be filed by the respondents 1 to 6, is a suit categorised as several persons jointly entitled to file a suit. It has been pointed out above that the respondents 1 to 7 became tenants in common as provided under Section 19 of the Hindu Succession Act and they were not joint tenants. So far as the matter wherein the joint family property is concerned, it has been laid down in Subramanyam v. Venkataraman & ors (AIR 1972 Madras 3) that when the suit is filed to set aside transfer of joint family property wherein the alienation was effected by mother during the minority of her two sons, the period of limitation will start running after the elder brother becomes major as he would be manager of joint family who could give valid discharge. Therefore, if the elder brother has not filed suit within three years after becoming major, the younger brother could not file suit thereafter. Thus, it will be evident from the ratio laid down in this case that even though it was a joint tenancy in respect of the joint Hindu family property, when one of the persons' disability is removed and he becomes manager, he being the person entitled to give discharge, the period of limitation commenced and even though the cause of action is joint, the benefit of limitation to run from the attainment of majority by younger brother, was not granted. In Kandasami Naicken v. Irusappa Naicken & ors (AIR 1918 Madras 724) it has been held that an alienation by a guardian ought to be set aside by a ward by instituting a suit within the period mentioned in Limitation Act and till it is so set aside, the title vests in the alienee. It is further held that Section 7 of the Limitation Act contemplates the existence in two or more persons of a joint right and a joint cause or causes of action in support of a single suit. It has been held that where two brothers have got the same cause of action (that is, where all the material allegations giving rise to a right of suit are the same), where the whole right litigated and the nature of the entire claim litigated are the same and where, under such circumstances, the elder brother could institute a suit for himself and his younger brother on that joint right and joint cause of action, Section 7 would become applicable and would bar the younger brother's right when the elder brother's became barred. The mere fact, however, that under Order 1, Rule 1 of the Code of Civil Procedure, a person suing for himself and praying for one particular remedy, could have joined in that suit another cause of action vesting in his minor brother for whom he could have acted as next friend will not bring the suit within the ambit of the said section. In Ponnamma Pillai Indira Pillai & anr v. Padmanabhan Channer & ors (AIR 1969 Kerala 163), the Full Bench of the Kerala High Court had an occasion to consider the provisions of Sections 6,7 and 8 of the Limitation Act and it has been observed that the time will start to run against the plaintiff when the cause of action is a joint when one of the members is manager of the joint family having acquired the capacity to give discharge without concurrence. This was a unanimous view even though some Judges were in disagreement with others on certain other points. In Tattya Mohyaji Dhomse v. Rabha Dadaji Dhomse (AIR 1953 Bombay 273), Section 7 of the Limitation Act has been considered and it has been observed that in the occasion of death of manager, one co-heir cannot give a valid discharge in respect of the debt due to the ancestors without the concurrence of other heirs and in case of joint Hindu family, it is only the manager who can bind the family in such things such as discharge of debt. The discharge given by any other member of any family is not, therefore , valid discharge binding on the family. Therefore, whenever the question of joint family property and right to institute suit with disability by more than one person as required under Section 7 is considered, the courts have always found that the person who stands removed from the disability first in point of time if is in a position to give discharge to others who are still under disability, the period will start to run from the removal of disability of that elder person. The managers were entitled to give discharge and a minor on attaining the majority, if obtains status of manager of joint Hindu family, does not file suit within the period of three years of his attaining the majority, it bars the suit of rest of the minors in the said family.

8. However, as observed by me in the present matter even though the parties are Hindu, there is no joint Hindu family property. Not only they inherited the property not as a joint tenants in respect of joint Hindu family property, but they have inherited the property as tenants in common. As I have already observed that in case of tenants in common, each shaererer has an independent share in the common property and they cannot act for others or assume the authority of manager unless so appointed by all others. In the present matter, there is no evidence to show that the respondent no.1 and/or respondent no.2 was appointed as manager or Karta for the other respondents and, therefore, there is no question of discharge being given by manager of the family. All other respondents are independent in respect of their shares as provided under the Hindu Succession Act. It is pertinent to note, therefore, that the heirs succeeding to the property of Hindu dying intestate are tenants in common like that of the heirs succeeding to the property of the intestate Mohamedan and each one of them is independent and is entitled to represent the others and, therefore, even though they may be entitled to avoid the sale deed executed in favour of the appellant, but the cause of action for avoiding the said sale deed will start separately in respect of each of the respondents 1 to 6 on their attaining the majority and the period of limitation will elapse after three years on attaining the majority by each of the respondents. Therefore, I am of the view that the heirs who would succeed to the property of the person dying intestate under the Hindu Succession Act being the tenants in common, are not entitled to represent or give discharge to rest of the heirs of the said intestate. They are co-owners, independently of their respective shares even though the property is common. It cannot be said that they are the persons having joint right to file suit or joint cause of action more specifically in the facts of the present case to set aside the alienation effected by their natural guardian without obtaining permission under Section 8 of the Hindu Minority and Guardianship Act. Therefore, I am of the view that the period of limitation for each of the respondents 1 to 6 will have to be considered separately and it will have to be found as to whether the suit is filed within three years after attaining majority by each of the respondents 1 to 6.

9. So far as the respondents 1 to 5 are concerned, as mentioned in the cause title of plaint, they were major on the date of filing of suit i.e. 30.3.1977 and were more than 21 years of age. Therefore, the suit filed by each of them was not within limitation. So far as the respondent no.6 is concerned, her age has been shown as 20 years. The learned Advocate appearing for appellant has produced on record the birth extracts of each of the respondents. We are not concerned with the birth extracts of respondent 1 to 5, because they were admittedly more than 21 years old, as observed above, at the time of filing the suit. In respect of respondent no.6, on the basis of birth extract, it was submitted that her date of birth is 12.2.1955 and, therefore, on the basis of presentation of suit, her age was 21 years, 1 month and 19 days and her age shown in the cause title of plaint is incorrect. Respondents 1 to 5 disputed the said contention. It was submitted that the extract has been produced for the first time before this Court. In the extract of date of birth, respondent no.6 is alleged to have born on 12th June 1955. Though the said extract is tried to be connected in respect of respondent no.6, the name of respondent no.6 has not been shown in it and therefore, it cannot be said to be an extract showing the date of birth of respondent no.6. I find substance in the contention raised on behalf of the respondents 1 to 6 so far as respondent no.6's date of birth is concerned. I am of the opinion that it is necessary to find out whether the respondent no.6 has completed 21 years of age on the date of presentation of suit, after ascertaining her correct date of birth and, therefore, I feel it will be proper to remand the matter so as to ascertain the age of respondent no.6 and to decide as to whether the suit filed by the respondent no.6 is within limitation on the basis of the law laid down in this judgment.

10. The learned counsel for the respondents 1 to 6 submitted that the suit filed by the respondents is based on title and, therefore, it is governed by Article 65 of the Limitation Act. Thus, the attempt was to point out that the plaintiffs/respondents are entitled to file suit within a period of 12 years from the date of sale deed i.e. 7th April 1965 and, therefore, the suit could be filed on or before 6th April 1977. He further pointed out that the present suit has been filed on 30th March 1977 and, therefore, it is within limitation.

This submission is not legal and proper one, because Article 60 of the Limitation Act is applicable in the facts and circumstances of the case as the said Article 60 provides a remedy to a minor to avoid transfer effected by guardian within a period of three years from the attainment of the majority. This Article 60 is more beneficial in protecting the interest of the minor, because in a given case minor may get period of more than 12 years as provided in Article 65. Therefore, when the Legislator has given more beneficial a treatment to the minor by providing Art.60 it would be inappropriate to apply Article 65 wherein claim is to be based on title.

It is pertinent to note that the guardian is a person holding the authority for the benefit of minor and, therefore, in the matters of transfers effected by guardian, the said transfers are voidable at the instance of minor and that right is specifically protected in favour of the minors. Under these circumstances, it will not be proper to hold that the suit filed by the plaintiffs/respondents who were minors at the time of execution of the impugned sale deed is within limitation on the basis of Article 65 of the Limitation Act. When the minor filed a suit to avoid transfer effected by guardian, it cannot be said to be a suit based on title. Therefore, Article 65 of the Limitation Act does not apply. It does not apply more particularly because purchasers possession can not be said to be adverse to minor.

11. I hold that the suit filed by the respondents 1 to 5 for avoiding the document of sale executed in favour of appellant on 7th April 1965 is liable to be dismissed being barred by limitation. The matter is remanded only in respect of respondent no.6. Hence I pass the following Order :-

O R D E R

(a) Appeal is partly allowed.

(b) Judgment and decree passed by the District Judge, Buldana in Regular Civil Appeal NO.265 of 1979 dated 2st Oct. 1982 is quashed and set aside.

(c) The suit filed by respondents 1 to 5 original plaintiffs 1 to 5 stands dismissed being time barred. However, the matter is remanded to the Trial Court and the Trial Court is directed to decide upon the issues, whether on the date of presentation of suit i.e. 30th March 1977, respondent no.6 had completed 21 years of age and in that light, it shall decide whether the suit of the respondent no.6 plaintiff no.6 is within the period of limitation or not, as provided under Article 60 of the Limitation Act, after allowing the parties to lead necessary evidence in that behalf;

(d) Since the matter is quite old and the direction contained herein is on limited points, the Trial Court is directed to decide the matter within six months from the date of receipt or record by it and the parties are directed to extend their full co-operation to the Trial Court in that behalf.

(e) Costs as incurred.

Order accordingly.