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Winifred Colaco and ors. Vs. Nanjappa Gowda and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 8 of 1949-50
Judge
Reported inAIR1953Kant84; AIR1953Mys84; ILR1953KAR419; (1954)32MysLJ191
ActsLimitation Act, 1908 - Sections 6, 8 and 10 - Schedule - Articles 44, 126, 127, 134 and 144; Code of Civil Procedure (CPC), 1908 - Order 33, Rule 5
AppellantWinifred Colaco and ors.
RespondentNanjappa Gowda and ors.
Appellant AdvocateS. Sreekantaiya, Adv.
Respondent AdvocateR.V. Srinivasaiya and ;H. Srinivasa Rao, Advs.
Excerpt:
.....that application he has complained to the deputy commissioner that defendant 1 has sold away his properties to colaco and that the latter is disturbing his possession and he prays the deputy commissioner to take possession of his properties and manage them as his guardian. the combined effect of sections 6 and 8 would be to enable a person like the plaintiff, who has been dispossessed during his minority, to file a suit within three years of his attaining majority or within the usual period of time ordinarily allowable to a major whichever is longer. g to the deputy commissioner on 25-2-1937 by which date he must have clearly attained majority according to the age given in ex. e without knowing its contents or that he was not then aware that his properties had been sold away by..........and daughter and widow respectively, of one william colaco, who is now dead. his case was that the suit properties which consist of some wet and dry lands and a coffee garden which belonged to him had been, wrongfully and without any legal necessity or benefit accruing to him, sold away during his minority, by defendant 1, to the deceased william colaco; and that as that sale was not binding on him, he was entitled to recover their possession from defendants 2 to 4 with mesne profits. he had lost both his parents when he was only 7 or 8 years old and his paternal grand-mother one kenchamma was bringing him up. as she was very old she had executed a deed of trust in favour of defendant i, her son-in-law, who had alienated the plaintiff's properties as aforesaid in breach of his trust.the.....
Judgment:

Vasudevamurthy, J.

1. The plaintiff whose age is given as 26 years in the plaint brought a suit in 'forma pauperis' on 30-11-1946 against one Puttaswamygowda, defendant 1, who is now dead and whose legal representatives are defendants 1 (a) to 1 (c) and against defendants 2 to 4, the minor son and daughter and widow respectively, of one William Colaco, who is now dead. His case was that the suit properties which consist of some wet and dry lands and a coffee garden which belonged to him had been, wrongfully and without any legal necessity or benefit accruing to him, sold away during his minority, by defendant 1, to the deceased William Colaco; and that as that sale was not binding on him, he was entitled to recover their possession from defendants 2 to 4 with mesne profits. He had lost both his parents when he was only 7 or 8 years old and his paternal grand-mother one Kenchamma was bringing him up. As she was very old she had executed a deed of trust in favour of defendant I, her son-in-law, who had alienated the plaintiff's properties as aforesaid in breach of his trust.

The deceased defendant 1 filed a written statement wherein he justified the sale and repudiated the allegations the plaintiff had made against him of misappropriation and breach of trust. As he himself was very old and as the properties of the plaintiff were situated far off, he had found it impossible to manage the coffee estate which had deteriorated badly or to cultivate the lands so as even to pay their 'kandayam'. He therefore sold them away and out of the price purchased other more useful and conveniently situated properties for the use and benefit of the plaintiff. The sale to Colaco was therefore binding on the minor.

Defendants 2 to 4 pleaded similarly. For the reasons set out above, defendant 1 had on1-5-1932 sold the properties which were useless and lying fallow for Rs. 3,000/- to the deceased William Colaco. On the same day and for the same sum he purchased some wet and dry and coffee lands for and in the name of the plaintiff. Those were nearer and moreconveniently situated. The deceased William Colaco had at great cost and personal exertion brought the lands under cultivation, cleared the forest lands and brought into existence a flourishing coffee estate. The plaintiff could notin any event recover possession without reimbursing them in respect of those improvements which they valued at Rs. 10,000/-. They also pleaded that the plaintiff's suit was barred by time.

2. The Subordinate Judge of Hassan made a decree in favour of the plaintiff. He held that the sale in favour of William Colaco was not binding on the plaintiff and that he was entitled to recover possession of the suit properties conditional on his depositing Rs. 1,000/-. being the estimated value of the improvements. He also held that the suit was not barred by time. Defendants 2 to 4 have appealed.

3. It is contended by Sri S. Srikantiah, learned counsel for the appellants, that the plaintiff's suit is barred by time. The learned Subordinate Judge was of the view that Article 144, Limitation Act, would apply to a suit like the present. But he held that in the present case there was an earlier decision of this Court between the parties in C. R. P. 109/47-48 which required that those twelve years should be calculated from the date of plaintiff attaining majority which would be somewhere in 1938.

That decision was by Paramasiviah J. who was sitting alone and was, in our opinion, nothing more than a mere observation. The plaintiff's suit which had been brought in 'forma pauperis' had been dismissed by the Subordinate Judge as being time-barred on the face of it. In revision, that order was set aside and it was directed that the plaintiff's petition to sue in 'forma pauperis' should be registered as an original suit and tried on its merits. In that connection, it was observed by Paramasiviah J. that the plaintiff may have 12 years within which to bring the suit after attaining majority. It has been held in a case reported in -- 'Mahomed Nooruddin Ali v. Chenniah', 15 Mys LJ 1 (A) that

'The point to be considered by a Court, where a petition is presented to file a suit in 'forma pauperis' is whether the allegations as stated in the plaint 'prima facie' show a cause of action for the suit. The Court is not expected to go into the merits of the allegations in the plaint for the purpose of admitting or rejecting the petition to sue in 'forma pauperis'. According to provisions of Clause (d) of Rule 5 of Order 33, Civil P. C., an application has to be rejected only when the allegations made in it do not show a cause of action.'

In making the observation referred to earlier, Paramasiviah J. must be taken to have had that limited scope in view. He did not consider the provisions of Sections 8 and 10 and Article 134. Limitation Act, nor had he any evidence before him.

4. Sri R. V. Sreenivasaiya, learned counsel for the respondents, contends that Article 134, Limitation Act, applies to the suit as it is one to recover possession of immovable property conveyed in trust to defendant 1 and afterwards transferred by the trustee and that the plaintiff had 12 years, within which to bring a suit, from the date when the transfer became known to him.' He urges that as in this case the plaintiff attained majority only in or about 1938, he must be deemed to have come to know of the transfer only then and this suit brought in 1946 would therefore be within time.

On the plaintiff's own admission, it is clear that he came to know of the sale by defendant 1 on or before 14-6-1932. This is clear froman application, signed by him, as per Ex. E, to the Deputy Commissioner, Hassan District. In that application he has complained to the Deputy Commissioner that defendant 1 has sold away his properties to Colaco and that the latter is disturbing his possession and he prays the Deputy Commissioner to take possession of his properties and manage them as his guardian. He was then about 14 years of age as mentioned in that application. The only explanation which the plaintiff has given about that application is that he filed it under instructions from defendant 1.

It is urged for the plaintiff that as he was a minor on the date of Ex. E, the knowledge of the sale referred to in Ex. E was no knowledge at all and that the computation of the time must be made, not from that date, but from the date of his attaining majority. We think there is really no warrant for holding so in Article 134, Col. 3, there is no reference to the majority or minority of the plaintiff. The combined effect of Sections 6 and 8 would be to enable a person like the plaintiff, who has been dispossessed during his minority, to file a suit within three years of his attaining majority or within the usual period of time ordinarily allowable to a major whichever is longer.

5. Rustumji in his Law of Limitation, Vol. II (1938 Edn.), page 1192, observes:

'Where a trustee improperly sells trust property and the 'cestui que trust' is at the time of such sale under a disability the 'cestui que trust' is entitled in computing the limitation under Article 134 to take advantage of the disability provisions i.e. Section 6' (which is of course subject to Section 8).

In -- '51 Mys HCR 140' (B), it has been held by this Court that:

'It cannot be stated as a general propositionthat there can be no adverse possession ofproperty which belongs to a minor or lunaticduring the continuance of the minority orlunacy. Where a person gets into possessionof a minor's property not with a view toprotect the minor and manage his propertyeither as a bailiff or an agent, or as aguardian, but on his awn account, withoutrecognising the rights of the minor, his pos-session of the property is adverse to theminor even during the minority.'

This case has been referred to and distinguishedby Paramasiviah J. in his order in the CivilRevision Petition on the ground that in thesale deed in favour of Colaco the deed of trusthas been specifically referred to. But Article 134-does not make any distinction between caseswhere property has been purchased by a personwith knowledge of the trust or otherwise. See-- 'Shyama Charan v. Abhiram Goswami'. 33 Cal 511, at p. 527 (C), where it has been held that the language 'assigns for valuable consideration' includes cases where the purchaser nay have known that the property which is purchased had been originally conveyed in trust and that the suit to recover property from the alienee must be brought within 12 years from the date of the alienation.

In this connection, the case in -- 'Gurudingappa v. Dyaviah', 11 Mys L J 186 (D) nodoubt appears to be in favour of the plaintiff. It has been observed in that case that where on the date of commencement of exclusion the person excluded was a minor he could be held to have become aware of exclusion from' the date of his attaining majority. That decisionhas, however, been referred to in -- '51 Mys HCR 140' (B), and at page 144 it has been observed by the Bench that those observations are mere 'obiter'. We agree with respect with that view, as on the facts found in -- '11 Mys LJ 186' (D) the plaintiff had not been shown to have been excluded from possession for 12 years and appears to have been a minor even on the date of suit.

That observation in -- '11 Mys L J 186' (D) is based on a decision in -- 'Niranjan Prasad v. Beharilal' : AIR1929All302 where a similar observation has been made without any discussion on the matter. Moreover that decision was with regard to Article 127 which prescribes a period of 12 years for a suit by a person excluded from joint family property to enforce a right to a share therein. Time begins to run for such a suit when the exclusion becomes known to the plaintiff. The question as to when and how a person is actually excluded by the other members of his joint family from his right to a share in joint family property or prevented from possessing, enjoying and exercising acts of ownership in respect of his share may probably not be so easy or capable of being known or realised by a minor who cannot legally claim to exercise all the usual acts attributable to ownership and possession. But the fact of a transfer by his trustee or guardian oftentimes to a stranger who has paid consideration may not stand on the same footing.

In this context Article 126 which prescribes 12 years for a suit by a son to set aside his father's alienation of ancestral property from the date-when the alienee takes possession may be compared with say, Article 44 which prescribes three years for a suit by a ward from the date of his attaining majority to set aside a transfer of property made by his guardian which makes no reference to the date of his knowledge of the transfer.

6. The plaintiff followed up Ex. E by another application. Ex. G to the Deputy Commissioner on 25-2-1937 by which date he must have clearly attained majority according to the age given in Ex. E. It is not the case of the plaintiff that he signed Ex. E without knowing its contents or that he was not then aware that his properties had been sold away by defendant 1. If Article 134 is held applicable to the suit, there is no doubt that the plaintiff's suit is bound to fail.

7. Sri Srinivasaiya has sought to rely on Section 10, Limitation Act, to contend that for a suit like the present where the defendant has purchased the properties from the trustee with full knowledge of the trust, there can be no bar of limitation. There is no doubt that Ex. III the sale deed in favour of Colaco expressly refers to the trust deed Ex. I. In fact, it is contended before us. and we think; rightly, for the appellants that it must have been in pursuance of an authority or power given in the deed of trust to exchange the then existing properties of the minor 'cestui que trust' for better ones or ones more advantageous or convenient to the minor, that Ex. III, the sale by defendant 1 to Colaco, and Ex. II, the sale by defendant 1 to the minor, were effected on the same day.

Section 10, Limitation Act, provides that no suit against a person in whom property has become vested in trust for any specific purpose or against his legal representative or assigns(not being assigns for valuable consideration) for the purpose of following in his or their hands such property or the proceeds thereof or for an account of such property or proceeds shall be barred by any length of time. In --'Subbaiya Pandararn v. Mahomed Mustafa', AIR 1923 PC 175 (P), it has been held by their Lordships of the Privy Council that Section 10, Limitation Act does not, by reason of the fact that the property was to his knowledge trust property, prevent a purchaser from a trustee, who has paid valuable consideration and who conies therefore within its exception from pleading adverse possession and relying on the provisions of the Limitation Act (i.e. Article 134 or 144) which limit the time within which a suit must be brought for its recovery.

We have therefore to see if in this case Colaco is an assignee for consideration, and there can be no doubt at all that he is. The sale in his favour was for Rs. 3,000/- and it was stipulated in the sale deed that the consideration was to be paid before the Sub-Registrar. Exhibit II the sale deed by which defendant 1' came to convey his properties in favour of the plaintiff was also executed and registered on the same day. The sum of Rs. 3,000/- payable as consideration under Ex. III was got expressly recorded in Ext. II by the Sub-Registrar, as having been paid in cash to defendant 1 in his presence by William Colaco on behalf of the plaintiff Nanjappa. In pursuance of this recital Ex. III was suitably altered by the addition of a recital that the consideration for it would be paid under Ex. II.

For the plaintiff-respondent it was urged that there was evidence in this case, on which the learned Subordinate Judge had found, that though Ex. II was executed by defendant 1 in favour of the plaintiff, possession of the properties conveyed under it continued to remain and is even now with defendant 1 and his legal representatives. But that could not render the sale under Ex. II nominal or a sham transaction, much less convert the sale under Ex. III into one without any consideration. Defendant 1 has, denied in his written statement that he drove out the plaintiff from his house and ceased to protect him shortly after Ex. II as alleged in the plaint. He has further pleaded that he continued to live with him and under his roof till 2 years before suit.

Defendant 1's eldest son, defendant 1 (a) Mallegowda, has deposed that till four years ago he (plaintiff) was in their house; the witness was not aware that his father executed any sale deed of properties in favour of the plaintiff and his sister hut he had been informed to that effect and he hart no objection to give them away to the plaintiff. In the light of this evidence, it is idle for the plaintiff to contend that the sale in favour of Colaco was without valuable consideration, and in that view Section 10 would in no. way help the plaintiff as against Colaco and his heirs, though it might aid him in a suit against defendant 1's heirs in respect of the properties, or the proceeds of properties conveyed under Exs II and III respectively.

8. In the result, we think that the plaintiff's suit must be held to be out of time. In this view, there is no need to consider the merits of the plaintiff's case, though it may be observed that defendant 1 does not appear to have been imprudent or much less dishonest in bringing about the sales under Exs. II and III which really amount to an exchange. This appeal is allowed and the plaintiff's suit is dismissed withcosts throughout as against defendants 2 to 4, defendants 1 (a) to 1 (c) bearing their own. The court-fee payable to the Government will be recovered from the plaintiff and the charge for the same against the suit properties is vacated.

9. Appeal allowed.


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