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Narsagauda Savantgauda Patil Vs. Chawagauda Adgauda Patil - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 722 of 1916
Judge
Reported inAIR1918Bom188; (1918)20BOMLR802; 47Ind.Cas.581
AppellantNarsagauda Savantgauda Patil
RespondentChawagauda Adgauda Patil
Excerpt:
limitation act (ix of 1908), article 91-sale-decd executed by a minor-suit to recover back possession of the properly sold-limitation. ;article 91 of the indian limitation act, 1908, docs not apply to a suit for possession, where the plaintiff alleges and proves that a sale-deed is void been use it was executed by him whilst a minor, but does not claim expressly to have it cancelled or set aside. - - ' in our case the deed of sale can be in no better position, for it never had any vitality as a conveyance of the property. whatever the reason for it may be, the difference of treatment is there, and in a well-known passage in quinn v. 13. the determination of this question may be considered from the point of view of all deeds or instruments which, like a minor's deed, are void at their..........high courts, especially here and in calcutta, have held that it is not necessary in the case of a void deed to sue to have it set aside or cancelled.5. these decisions seem to me to require a conclusion in the plaintiff's favour. i need not refer to other decisions of the judicial committee which have been cited for the defendant, for in none of them was the court concerned with a deed such as we have here. the only case where the facts bear a superficial resemblance to the present facts and where the decision went the other way is janki kunwar v. ajit singh i.l.r. (1857) cal. 58 p.c. there the deed involved was a grant of land, alleged to have been obtained by fraud and undue influence from one of the plaintiffs. it was decided that the suit was governed by article 91. but then their.....
Judgment:

Stanley Batchelor, Kt., Acting C.J.

1. In this reference the facts are these : The suit, which was filed in September 1911, was brought to obtain possession of lands. The plaintiff attained majority on 10th June 1903 : on the 16th March 1903, and consequently while he was still an infant, he executed a deed of sale in favour of the defendant. The defendant had obtained possession under a mortgage of 1901, executed by the plaintiff's guardian in his favour. In the plaint the sale-deed of 16th March 1903 is mentioned, and it is pleaded that the deed is void by reason of the plaintiff's then infancy : there is no prayer that the deed should be set aside or cancelled.

2. The question we have to decide is whether the suit is governed by Article 91 of the Indian Limitation Act of 1908 : if it is so governed, then it is barred ; otherwise it is in time.

3. The sale-deed of March 1903 was, and is, void and inoperative by reason of the plaintiff's infancy. That being so, it is contended for the plaintiff that he was under no obligation to sue to get it set aside or cancelled, and that his omission to bring such a suit does not expose his present suit for possession to the bar created by Article 91 of the Indian Limitation Act,

4. I think that this contention should succeed, and, in my opinion, the question is in substance answered by decisions of the Privy Council. In Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1906) L.R. 34 IndAp 87 : 9 Bom. L.R. 602 the heirs of a Hindu sued, first, for a declaration that an Ijara granted by the deceased widow had become inoperative against the plaintiffs after her death, and, secondly, for Khas possession of the properties. Their Lordships held that the suit was substantially one for possession, and was governed by Article 141, not by Article 91. In delivering the judgment of the Board, Lord Davey said, speaking of the Hindu widow :-'Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.' Now if that is true even of a voidable transaction, subsequently avoided by the election of the party interested, it seems to me that it must a fortiori be true of a transaction which, as here, was void ab initio: in that case there was a real obstacle, which at least had temporary operation: here there never was at any time any real obstacle at all, but the thing which seemed to constitute an obstacle was in the eye of the law no reality at all. Petherpermal Chetty v. Muniandi Servai (1908) L.R. 35 IndAp 98 : 10 Bom. L.R. 590 is, I think, even more directly in point. There in a suit for the possession of land it appeared that the plaintiff's predecessor-in-title had, six years prior to the institution of the suit, executed a benami deed of sale of the land collusively and in order to defeat the claim of a prior equitable mortgagee, Counsel for the defendant contended-I quote the report-that 'before he (the plaintiff') could recover the land, he must first set aside the conveyance, and a suit for that purpose was barred by Act XV of 1877, Schedule II, Article 91.' Upon this argument a specific question was raised by Lord Atkinson, who answered it in these words, which I set out because they seem to me decisive of the point now under consideration :- 'As to the point raised on the Indian Limitation Act, 1877, their Lordships are of opinion that the conveyance...being an inoperative instrument, as, in effect, it has been found to be, does not bar the plaintiff's right to recover possession of his land, and that it is unnecessary for him to have it set aside as a preliminary to his obtaining the relief he claims. The 144th and not the 91st, Article in the Second Schedule to the Act is, therefore, that which applies to the case, and the suit has consequently been instituted in time.' It is important to observe that Article 91 was excluded, not in terms because the eonveyance was benami, but because it was, as found in the suit, inoperative. So here, the deed of sale by the infant waa inoperative and, consistently with these decisions, I think we are bound to hold that the present suit is not barred by Article 91. The same conclusion is suggested by Maharani Beni Pershad Koeri v. Dudh Nath Roy (1890) L.R. 26 I. A, 216 : I.L.R. 27 Cal. 156 where a suit was brought in 1893 to recover possession of a village. The plaintiff's ancestors had parted with possession in 1836, when a grant for life had been made to another person. In 1849 the grantee executed a permanent Pottah of it to one Ram Golam, and in 1855 the grantee surrendered the village to the plaintiff's predecessor, who allowed Ram Golam to remain in possession, paying rent as stipulated in the Pottah. It was found that the Pottah was void against the grantor. The question remain ed whether the plaintiffs were entitled to eject the defendant, who claimed title under Ram Golam. It was contended that the suit was barred because the plaintiff's predecessors might and ought to have sued for a declaration of their right to possession on Ram Golam's death under Section 39 of the Specific Relief Act, and that such a suit was barred under Article 91. But Lord Davey said: 'It is sufficient answer to this argument to say that, though such an action might have been brought, the Maharajah was not bound to bring it, and there was no necessity for him to do so. According to their Lordships' view the Pottah (whatever its construction) had become a spent instrument, and had no longer any vitality as a grant of the property.' In our case the deed of sale can be in no better position, for it never had any vitality as a conveyance of the property. On the same principle the Indian High Courts, especially here and in Calcutta, have held that it is not necessary in the case of a void deed to sue to have it set aside or cancelled.

5. These decisions seem to me to require a conclusion in the plaintiff's favour. I need not refer to other decisions of the Judicial Committee which have been cited for the defendant, for in none of them was the Court concerned with a deed such as we have here. The only case where the facts bear a superficial resemblance to the present facts and where the decision went the other way is Janki Kunwar v. Ajit Singh I.L.R. (1857) Cal. 58 P.C. There the deed involved was a grant of land, alleged to have been obtained by fraud and undue influence from one of the plaintiffs. It was decided that the suit was governed by Article 91. But then their Lordships held that the suit was a suit, not to obtain possession but to set aside the grant; and-what seems to me of greater significance-it was never found that the deed was liable to be set aside : on the contrary, the Judicial Commissioner found no proof of undue influence or fraud, and their Lordships saw 'no ground for thinking that on that matter he came to a wrong conclusion.' The deed, therefore, was never ascertained to be even voidable.

6. If I am right in thinking that the point before us is concluded by the decisions of the Privy Council, it becomes unnecessary to consider whether the rulings of our own Court are consistent with the conclusion. This I say merely in order to explain the present judgment, and not with any desire to cast doubt upon these rulings. That most canvassed for the defendant was Shrinivas v. Hanmant I.L.R (1899) Bom. 260 : 1 Bom. L.R. 799, F.B., a Full Bench decision where the leading judgment was delivered by Sir Lawrence Jenkins C. J. As I have said, I am not concerned to reconcile this decision with the cited decisions of the Privy Council, but I may say that for my own part I can see no inconsistency. In Shrinivas' case an essential part of the suit was a prayer for a declaration that an adoption was invalid. It was held that, this part of the claim being exposed to the bar oil Article 118 of the Schedule, the whole claim was time-barred ; but nothing was decided as to the applicability of Article 91, as it was nobody's case that that Article entered into the controversy. I need not say that I am very sensible of the weight of my learned brother Beaman's arguments that it would have tended to logical symmetry and simplicity of principle if the Legislature had treated adoptions and deeds on the same footing. But they have not done so, and separate Articles of the Limitation Act are provided for these separate cases. It is of course not for us to assign reasons for this action of the Legislature, but presumably it was thought that a substantial distinction existed between adoptions and deeds. Among possible grounds for such a distinction would be the greater publicity and the change of status consequent on an apparent adoption. This, however, is merely conjecture; whatever the reason for it may be, the difference of treatment is there, and in a well-known passage in Quinn v. Leathem [1901] A.C. 495 the Earl of Halsbury L. C. has warned us against the danger of applying rigorously logical tests to propositions of law: 'A cnse', his Lordship there says, ' is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.

7. On these grounds, and with sincere respect for the contrary view of Beaman J., I conclude that the first of Marten J.'s two questions should be answered in the negative. That is sufficient for present purposes, and I do not think we should decide more than that.

Shah, J.

8. I agree.

Kemp, J.

9. The facts out of which this reference arises are few and simple in their inception. The plaintiff, who attained his majority on 10th June 1803, purported, on 16th March 1903, to execute a sale-deed of some of his lands in favour of this defendant who was already in possession of those and other lands of the plaintiff by virtue of a mortgage of 30th August 1901 executed in his favour by plaintiff's guardian. The plaintiff filed this suit on 8th September 1911 for the lands alleging that on the date of the sale-deed he was a minor. The matter comes before us on a Reference from Beaman and Marten JJ. who held divergent views on the question as to whether Article 91 of the Indian Limitation Act applied to plaintiff's suit. Both learned Judges have framed questions for decision by this Full Bench. With great respect to Beaman J. I think the question framed by him is in too general terms. It proceeds on the assumption that there is no difference between a minor's deed and other deeds of the description mentioned in the question and I take it he framed his question for decision in this form on the argument by way of the analogy of the principles governing adoption cases which he considered applicable and which he applied to the facts of the present case. With great respect I am not prepared to adopt that line of reasoning and I therefore personally must decline to answer the question in the wide terms in which it is framed.

10. The questions framed by Marten J. appear to me to cover more appropriately the point for determination and I, therefore, confine myself to a discussion of the precise point raised by them. The question in short is : Whether Article 91 of the Indian Limitation Act, IX of 1908, applies to the plaintiff's suit

11. Now, I may preface my remarks with the general view which I take of the scope of Article 91. In my opinion, it applies to suits the main object of which is to cancel or set aside an instrument not otherwise provided for by the Act. If there be any other substantial relief prayed for and the cancellation of the instrument be not actually necessary or merely auxilliary to the granting of such relief, Article 91 does not apply. It would be otherwise if the prayer for possession in a suit be merely consequential.

12. The further question, therefore, arises whether the plaintiff can escape the application of Article 91 by filing his suit for possession in this case.

13. The determination of this question may be considered from the point of view of all deeds or instruments which, like a minor's deed, are void at their inception or it may be considered from the point of view of the peculiar position of a minor in the eye of the law, i. e., by a consideration of arguments applicable to a minor's deed in particular. The adoption of this latter method is another reason for declining to answer the question in the form propounded by Beaman J.

14. Now, as to the sale-deed in this case, regarded in common with other instruments which are declared by law to be void at their inception, I am entirely in accord with the judgment of my Lord as to the distinction pointed out by him between such instruments and adoptions and as to the result arrived at by him that Article 91 does not apply to such void instruments. I think the point is really concluded by authority : see the decisions of the Privy Council in Bijoy Gopal Mukerji v. Krishna Mahishi Debi and Petherpermal Chetty v. Muniandi Servai (1908) L.R. 35 IndAp 98 : 10 Bom. L.R. 590.

15.I respectfully deprecate the application to other instruments of arguments based on the analogy of the principles in decided cases in adoptions. Analogy, like parity of reasoning, may be a useful servant to invoke in the determination of complex questions of law but must be handled cautiously and where legal problems can be solved by the application of straightforward principles of law I fail to see any place for the application of any arguments based on analogy.

16. But a minor's deed stands on a particular footing by itself. It has been decided by the highest tribunal that a minor's contract is null and void 'ab initio' : Mohori Bibee v. Dharmodas Ghose I.L.R. (1903) Cal. 539 : 5 Bom. L.R. 421 p. c. The law protects minors and the disability of infancy goes no further than is necessary for the protection of the infant: Burnaby v. Equitable Reversionary Interest Society (1885) 28 Ch. D. 416 per Pearson J. at p. 421.

17. Unlike the law in England which, in certain cases, gives a binding effect after majority to a contract entered into by an infant during infancy, the law here declares the minor's contract void and incapable of ratification.

18. That being so it can scarcely have been intended to impose an obligation on the minor, after attaining majority, to set aside a transaction entered into during minority and which it has expressly declared to be void and incapable of ratification. If that were its intention the attitude of the law would be inconsistent and it would be inflicting an obligation upon the minor in consequence of an attempted contractual obligation entered into by him during minority. I think this is a sufficient answer to the defendant on this point.

19. Section 39 of the Specific Relief Act is permissive, not obligators'. There is, therefore, no obligation on the minor to sue under that section and if he does not need to sue under that section it cannot be said by not suing he loses the right which he in common with every other person possesses to the period of limitation for a suit for land.

20. I, therefore, think that the answer to the first question asked by Marten J. should be in the negative.

21. In the second question propounded by Marten J. another consideration is introduced, viz., the legal effect of the mortgage of 30th August 1901 executed by the minor's guardian. The determination of that question depends on whether the present suit can be treated as a suit by the plaintiff for redemption of the mortgage. The lower Courts have so treated it and the referring Bench apparently inclined to the same view. Apparently the plaintiff does not object to this and the mortgage must, therefore, be taken as established and binding on him. This question does not, therefore, to my mind arise for decision by us.

22. On the 28th June 1918, the appeal came up again for disposal before Beaman and Marten JJ., when their Lordships confirmed the decree of the lower appellate Court.


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