(Prayer: This RSA is filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated: 12.10.2004 passed in RA.No.48 of 1996 on the file of the District and Sessions Judge, Presiding Officer, Fast Track Court, Jamakhadi, dismissing the appeal and confirming the Judgment and Decree dated:8.3.1996 passed in O,S.No.28 of 1994 on the file of the Munsiff, Bilagi.)
1. Aggrieved by the concurrent findings recorded by both the Courts below in partly decreeing the suit of the plaintiffs by declaring that the sale deed executed by the defendant No.4 in favour of the deceased father of defendant Nos. 1 and 3 is not binding on the plaintiff to the extent of 2/3rd share, defendants 1 to 3 have filed this appeal.
2. The case of the plaintiffs is that they are sisters. They are the daughters of deceased Basappa Kalakeri who died in the year 1968. Defendant No.4 is the mother of the plaintiffs. There are no other legal representatives. The plaintiffs father and husband of defendant No.4 owned two lands, which were ancestral properties. The plaintiffs and defendant No.4 have inherited these lands by succession. The plaintiffs were married during the lifetime of their father. That after the death of their father, the mother namely, the defendant No.4 sold the property to the father of the defendants 1 to 3 in the year 1971. That the mother had no right, title or interest to sell their share of property since there was absence of any legal necessity. That there is no authority in law to sell the property in law to sell the property. A legal notice was issued to the defendants by the respondents herein. Nothing came out of it. Hence the instant suit was filed seeking for a declaration that the sale deed executed by their mother defendant No.4 in favour of the father of defendant Nos. 1 to 3 is not binding on their share.
3. Defendant No.1, even though suit summons were served, did not enter appearance and was placed ex-parte. Defendant No.4 did not file any written statement. Defendant No.3 filed written statement, which was adopted by defendant No.2. He denied the plaint averments. That the sale transaction was necessitated for the maintenance of the family and marriage of the plaintiffs. That after the death of the plaintiffs father, their family position was frail and there was no income and hence the sale was effected.
4. Based on these pleadings, the trial Court framed the following issues:
i. Whether the defendant No.4 was competent to sell the suit schedule properties?
ii. Whether the sale of suit schedule properties by defendant No.4 was for family legal necessity?
iii. Whether defendant Nos. 1 to 3 have incurred expenditure of Rs.45,000/- to improve the suit properties and if so whether plaintiffs are liable to share the said expenditure in the event of decree for partition is passed?
iv. Whether relief of declaration that sale deed is not binding on plaintiffs is barred by limitation?
v. Whether right of plaintiffs for possession by way of partition of suit schedule properties is extinguished due to lapse of time?
vi. Whether suit properties are not properly valued and court fee paid is insufficient?
vii. Whether the sale deed of suit schedule properties are not binding on the right of plaintiffs?
viii. In the event of decree, to what share the parties to suit are entitled?
ix. What order or relief?
5. Plaintiff No.1 was examined herself as PW1 and got marked 7 documents. Defendant No.2 was examined as DW1 among another witness. Issues Nos. 1 to 6 were held in the negative and issue Nos. 7 and 8 were held in the affirmative. The suit of the plaintiff was decreed. It was declared that the sale deed executed by defendant No.4 in favour of deceased father of defendants 1 to 3 is not binding on the plaintiffs share to the extent of 2/3rd share in all. That the plaintiffs are entitled for partition and separate possession of their 2/3rd share in the suit schedule properties. Aggrieved by the same, the defendants preferred an appeal, which was dismissed. Hence the present second appeal.
6. By the order dated 16.11.2010, the appeal was admitted to consider the following substantial questions of law:
i. Whether the Courts below were justified in granting the decree considering limitation under Article 109 of the Indian Limitation Act instead of applying Article 60 of the said Act?
ii. Whether the mother of the minor children has any authority to alienate the interest of the minors when the father is not alive?
7. Learned counsels submit that the questions of law require to be re-framed. They contend that Article 109 of the Limitation Act, 1963 ( the Act , for short) in question No.1 has been wrongly typed, whereas it should be read as Article 65. They submitted that the second substantial question of law would not arise for consideration.
8. On hearing learned counsels, I am of the considered view that the substantial question of law is to be re-framed as under: Whether the Courts below were justified in granting the decree while applying Article 65 instead of Article 60 of the Limitation Act and thereby holding that the suit is within limitation?
9. It is undisputed that the suit schedule property was sold by the mother of the plaintiffs namely defendant No.4 in the year 1971. It is also undisputed that as on that date both the plaintiffs were minors. That the first plaintiff was 30 years and second plaintiff was 27 years on the date of filing of the suit. Article 60 of the Limitation Act reads as follows:
|Description of suit||Period of limitation||Time from 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 has attained majorityb) by the ward s legal representative-|
i) When the ward dies within three years from the date of attaining majority
ii) When the ward dies before attaining majority
|Three years||When the ward attains majority|
|Description of suit||Period of limitation||Time from which period begins to run|
|65. For possession of immovable property or any interest therein based on title.||Twelve years||When the possession of the defendant becomes adverse to the plaintiff|
11. The trial Court framed issue No.5 as to whether the right of the plaintiffs is extinguished due to lapse of time. The trial Court misdirected itself in applying Article 65 to the suit. It reasoned that in establishing the right as a heir, he is not required to file a suit and however, if a situation arises where the heir is not in possession of the property inherited, in such an event, suit for possession would have to be filed and on the contest the same may fail on the defendant proving that he has perfected his title by adverse possession. Therefore, the instant suit is covered by the provisions of Article 65 and hence it is clear that no period of limitation is prescribed for filing the suit for possession based on inheritance. In the instant case, the plea of the plaintiffs is not based on inheritance. The plea of the plaintiffs is that the sale deed executed by their mother is null and void and not binding on their share. Therefore, the principles of inheritance that has been stated by the learned trial Court in applying Article 65 is misplaced. This is not a suit for possession based on the inheritance or succession. This is a suit seeking for partition based on the erroneous sale deed being executed by the guardian. Therefore, it is Article 60 alone that stands applicable. The applicability of Article 65 to the facts and circumstances of the case is therefore misplaced.
12. The defendants case is not based on adverse possession. The trial Court assumed itself that the plea of adverse possession should have been raised and therefore, Article 65 is applicable. In fact the plea of the defendants is based on the sale deed. Therefore, on that reasoning also, Article 65 will not be applicable.
13. Consequently the substantial question of law is answered by holding that the judgment and decree of both the Courts below are perverse in applying Article 65 instead of Article 60 of the Limitation Act and thereby wrongly held that the suit is within limitation.
Consequently, the appeal is allowed.
The judgment and decree dated 08.03.1996 passed by the Court of Munsiff, Bilagi in O.S.No.28 of 1994 and the judgment and decree dated 12.10.2004 passed by the District and Sessions Judge and Presiding Officer, Fast Track Court at Jamkhandi in R.A. No. 48 of 1996 are set aside. Suit of the plaintiff is dismissed.