Murli Singh & Others vs Roomal & Others
2011 Latest Caselaw 2363 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of judgment: 03.05.2011


+                 R.S.A.No. 281/2007 & CM No. 15637/2007

MURLI SINGH & OTHERS                           ...........Appellant

                             Through:    Mr. J. Sarma, Advocate.

                  Versus

ROOMAL & OTHERS                                .......Respondents

                             Through: Mr. O.P. Khadaria and
                             Mr. Deepak Khadaria, Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

1.    Whether the Reporters of local papers may be allowed to
see the judgment?

2.    To be referred to the Reporter or not?                  Yes

3.    Whether the judgment should be reported in the Digest?
                                                        Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

31.07.2007 which had endorsed the finding of the trial judge

dated 16.04.2005whereby the suit filed by the plaintiff Sh. Murli

Singh seeking declaration and injunction (to the effect that the

suit land be declared as an ancestral property and defendant nos.

3 to 5 be restrained from getting any sale deed executed in

regard to the suit land; plaintiff be not dispossessed; further the

agreement to sell dated 13.01.1961 and the decree dated

02.02.1973 in suit no. 395/1961 as modified in RFA no. 52/1973

and RFA No. 80/1973 be also declared null and void) had been

decreed. Impugned judgment had reversed this finding; suit

stood dismissed.

2. The plaintiffs (13 in number) and defendant nos. 1 and 2 are

members of joint Hindu family; their common Ancestor was Tulsi

(a) Popi. He had two sons namely Roomal and Jodha (defendant

nos. 1 and 2 respectively). Plaintiff nos. 1 to 7 & 12 are the sons

of defendant no. 1 and plaintiff no. 8 to 11 and plaintiff no. 13 are

the sons of defendant no. 2. The case of the plaintiff is that the

suit land was an ancestral property; their father Tulsi had

inherited it from their grandfather; plaintiffs being governed by

the Mitakshra School of Hindu Law have interest in said joint

family property. On 13.01.1961, defendant nos. 1 and 2 had

entered into an agreement to sell qua the suit property with

defendant nos 3 to 5; plaintiffs came to know about this

agreement on 30.01.1985. On enquiry, it was revealed that

defendant nos. 3 to 5 had filed a suit for specific performance

(suit no.395/61) qua this agreement to sell dated 13.01.191; this

suit was decreed in favour of defendant no. 3 by the court of Sh.

O.P. Diwedi on 02.02.73 whereby the defendant nos. 1 & 2 had

been directed to executed the sale deed in favour of defendant no.

3. The RFA no. 80/1973 was allowed by the High Court; vide

judgment dated 14.01.1985, defendant nos. 1 and 2 were ordered

to execute the sale deed qua defendant nos. 3 to 5 within one

month. The case of the plaintiff is that they were minors at the

time when defendant nos. 1 and 2 executed the agreement to sell

and this agreement being against their interest was not binding

upon them. Suit was accordingly filed with the aforenoted

prayers.

4. Defendant nos. 1 and 2 filed their written statement; they

admitted the averments in the plaint; they supported the case of

the plaintiffs being the fathers of the plaintiffs.

5. Defendant no. 3 and 4 had also contested the suit. It was

stated that defendant nos. 1 and 2 have sold the property to

defendant no. 3 vide agreement to sell dated 13.01.1961; the

plaintiff had complete knowledge of the proceedings. In the High

Court, a local commissioner had been appointed who had visited

the suit property wherein he had noted the presence of Mr. Murli

Singh and Mr. K.V. Sharma; this was on 20.02.1981. The suit was

even otherwise barred by limitation. It was denied that the suit

property was a joint family property.

6. On the pleadings of the parties, the following issues were

framed:-

"1. Whether the land in question bearing khasra no. 208/132/1 situated in village Zamrudpur, Delhi is an ancestral land, as alleged in Plaint? OPP

2. Whether the alleged agreement to sell dt. 13.01.1961 and decree dt. 02.02.73 in suit no. 395/71 (1951) as given in the plaint are null and void and not binding on plaintiffs as alleged in plaint? OPP

3. Whether plaintiff is entitled to injunction as prayed for? OPP

4. Whether the plaintiff is not liable to be dispossessed from the suit land as alleged in plaint? OPP

5. Whether the plaintiff is estopped from filing the present suit in view of preliminary objection in para no. 3 & 4 of w/s? (OPD-3&4)

6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged in para 5 of the w/s.

7. Relief."

7. Oral and documentary evidence was led.

8. Court was of the view that the plaintiffs have failed to prove

the case. The agreement to sell dated 13.01.1961 executed by

defendant nos. 1 and 2 in favour of defendant no. 3 is binding.

The suit for specific performance had also been decreed in favour

of defendant no. 3 which had been upheld by the High Court. The

suit for the plaintiff was dismissed.

9. This was endorsed in first appeal.

10. This is a second appeal. It had been admitted and on

25.04.2011, the following substantial question of law had been

formulated.

"Whether the findings in the impugned judgment dated 31.07.2007 returning a finding on the limitation against the appellant is perverse finding and if so, its effect?"

11. On behalf of the appellant, it has been urged that the

impugned judgment dismissing the suit of the plaintiffs on the

ground of limitation is a perversity; at best knowledge could have

been imputed to Murli who as per report of the Local

Commissioner was found present at the site on 20.02.1981; no

knowledge could have been imputed to the other 12 plaintiffs. It

is pointed out that the impugned judgment has otherwise

returned all other findings in favour of the plaintiffs; the

impugned judgment had noted that the suit property is in fact the

property of a Hindu undivided family (HUF); it was an ancestral

property; there was no legal necessity to alienate this property.

The finding returned on the question of limitation which is the

only finding against the appellant is misconceived and is liable to

be set aside.

12. Arguments have been rebutted. It is pointed out that the

impugned judgment does not in any manner for any interference.

Attention has been drawn to the provisions of Section 7 of the

Limitation Act, 1963. Reliance has been placed upon the

judgments reported in AIR 2003 Madras 129 G. Murugan &

Others Vs. Manickam, AIR 1972 Madras 3 Subramanyam Vs.

Venkataraman & Others, AIR 1974 Madras 203 Venkatesan Vs.

Neelayathakshiammal & Others as also a judgment of the Apex

Court reported in 1996 VIII AD SC 37 Divya Dip Singh & Ors. Vs.

Ram Bachan Mishra & Ors. Reliance has also been placed upon

another judgment of the Apex Court in (1999) 9 SCC 446

Madhukar Vishwanath Vs. Madhao & others. It is pointed out that

the relevant Article applicable in this case would be Article 60 of

the First Schedule of the Limitation Act, 1963 and not Article 59;

limitation is three years for filing a suit by a minor for repudiating

the acts of his guardian and this period of three years has to be

counted from the date when he attained majority. It is pointed out

that Murli was the manager and karta of HUF; he admittedly

being the eldest son and on the date of filing of the suit i.e. on

12.02.1985 Murli was more than 34 years of age; he had

represented the interest of other plaintiffs also; suit was

admittedly time barred. The impugned judgment calls for no

interference.

13. Record has been perused. Plaintiffs No. 1 to 8 were the

sons of Roomal and plaintiffs No. 9 to 13 were the sons of Jodha.

The ancestor of Roomal and Jodha was Popi @ Tulsi; lineage of

the plaintiffs was being traced from Popi @ Tulsi down to Roomal

& Jodha and then to the present plaintiffs. As per the averments

in the plaint except plaintiff nos. 12 and 13 who were minors on

the date of filing of the suit; all other plaintiffs had attained

majority much before three years from the date of filing of the

suit; they were all in the age bracket of 30-35 years on the date

when the suit was filed. Murli as per tabulation was born on

05.06.1951. He was the eldest son of Roomal. Para 5 of the plaint

clearly states that no partition had taken place and the suit land is

entered in the names of defendants No. 1 & 2 being the heads of

their respective families; further Tulsi was their common

ancestor. The impugned judgment had returned a finding that the

Hindu undivided family of Tulsi remained intact; it was an HUF.

Vehement contention of learned counsel for the appellant is that

the impugned judgment had noted that there are two separate

Hindu undivided families of Jodha and Roomal and even if

knowledge is attributed to the family of Roomal (through Murli),

no knowledge can be imputed to the family of Jodha is without

any force. This is clear in view of specific averment in the plaint

that the suit property is not partitioned and both Roomal and

Jodha are claiming through their common ancestor Tulsi. The

HUF of Tulsi was thus one complete whole.

14. Section 7 of the Limitation Act is relevant, it reads as

follows:-

"7. Disability of one of several persons.- 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."

15. In AIR 1961 SC 1074 Sarda Prasad & Others Vs. Lal Jumna

Prasad the Apex Court while dealing with the provisions of

Section 7 of the Limitation Act had held where a valid discharge

can be given by one without the concurrence of the others, time

would begin to run under Section 7 against all irrespective of the

fact that some of those persons were minors at that time. In this

case, the execution proceedings filed by the applicant were held

to be barred by time. A suit for partition had been filed by two

brother Jamuna Prasad and Devi Prasad and two minor sons of

Jamuna Prasad; a decree for partition was passed on 02.09.1938;

execution was thereafter filed. Contention was that the

application was in time as all the applicants till then had been

minors; the application had put forward a plea that Jawala Prasa

was entitled jointly with these applicants to make an application

for the execution of the decree and he could not have given a

discharge of the liability under the decree without the

concurrence of his minor sons was rejected; as such time had

begun to run under Section 7 of the Limitation Act against them

also from the date of the decree.

16. Article 60 of the first Schedule of the Limitation Act is

relevant. It reads as under:-

"To set aside a transfer of Property made by the guardian of a ward--

(a) By the word who has three years when the ward attains majority attained majority;"

Article 59 of the Limitation Act is also relevant. It reads as

under:-

"To cancel or set aside an Three years When the facts entitling the instrument or decree or for the plaintiff to have the instrument rescission of a contract. or decree cancelled or set aside or the contract rescinded first become known to him."

17. The prayer in the plaint is to set aside an agreement to sell

dated 13.01.1961 which had been executed by Roomal and Jodha

(defendants No. 1 & 2) in favour of defendants No. 3 to 5. In

terms of Article 60 such a suit could have been filed by the ward

for setting aside the transfer made by his guardian within a

period of three years from the date when the ward attained

majority. In the instant case, Murli (eldest son in the family) was

borne on 05.06.1951. He attained majority in the year 1972. Suit

had been filed on 12.02.1985; he was then aged about 34 years. It

was time barred.

18. Even if three years is to be counted from the date of

knowledge as is contained in Article 59, even then the suit is time

barred. Murli was admittedly present at the time of visit of the

Local Commissioner at the site i.e. on 22.04.1981; date of

knowledge is 22.04.1981; suit filed on 12.2.1985 was time barred.

19. On both counts suit was time barred.

20. The next question which has to be answered is as to

whether the suit filed by Murli was in his individual capacity or

whether he represented the other plaintiffs i.e. plaintiffs No. 2 to

13 as well. The answer to this question is in the positive; Murli

was representing the interest of his other brothers as well. Murli

is admittedly the eldest son in the family; he being the eldest male

member of the Hindu undivided family he had the capacity to give

a valid discharge on behalf of the other plaintiffs.

21. This has also been answered by the series of judgment on

which reliance has been placed upon by learned counsel for the

respondent.

22. In G. Murugan there were four brothers who had filed a suit

against their father; their prayer being that the alienation of

property by their father be declared null and void and not binding

upon them. Out of four brothers on the date of filing of suit, two

brothers were majors aged 26 & 24 years; plaintiff No. 1 was 20

years of age and plaintiff No. 2 was of 16 years of age. The Court

had adverted to the provisions of Section 7 of the Limitation Act.

It had held that the third plaintiff being the eldest member of

Hindu undivided family shall be deemed to be capable of giving a

discharge without the concurrence of the other members of the

family; he not having filed a suit within three years from the date

of his attaining majority, in view of Article 60 such a suit was

barred. This ratio has been reaffirmed in two other judgments

relied upon by the respondent namely Subramanyam (Supra) and

Venkatesan (Supra). The Supreme Court in Divya Dip Singh

(Supra) was dealing with the rights of a minor to have a sale set

aside qua the alienation of property by his natural guardian. In

this case, the natural guardian of the minor had disposed of the

immoveable property of the ward in contravention of Section 8 (2)

of the Hindu Minority and Guardianship Act, 1956; the minor not

having challenged the sale within three years from his attaining

majority; he having challenged the sale within 12 years was held

to be a suit which was barred by time. The Supreme Court in

Madhukar Vishwanath (Supra) was dealing with the rights of a

minor whose immoveable property had been transferred by his

guardian i.e. by his maternal uncle. The plaintiff in this case was

born on 22.08.1948; he had attained majority on 22.08.1966; suit

challenging the alienation made by his guardian was filed after

seven years. Applying the provisions of Article 60 of the

Limitation Act, the Court had held that such a suit is barred by

limitation.

23. Substantial question of law is answered in favour of the

respondent and against the appellant. There is no merit in this

appeal. Appeal as also pending application are dismissed.

INDERMEET KAUR, J.

MAY 03, 2011 a/ss