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Mothika Mutyalu and anr. Vs. Mothika Appayyalingam and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberL.P.A. No. 99 of 1972
Judge
Reported inAIR1975AP19
ActsLimitation Act, 1963 - Sections 6 - Schedule - Article 109
AppellantMothika Mutyalu and anr.
RespondentMothika Appayyalingam and ors.
Appellant AdvocateK. Jagannadha Rao, Adv.
Respondent AdvocateM. Venkatarami Reddy, Adv.
DispositionAppeal dismissed
Excerpt:
.....6, must be held to be barred by limitation, if they fail to institute the suit within 12 years from the date when the alienee took possession of the suit property......by limitation as it is beyond 12 years from the date of the alienee taking possession of the suit property in 1948. the learned judge also was of the view that no issue relating to the beneficial nature of the alienation to the family ought to have been framed as there was no specific plea in the plaint in that regard. but, however, on merits, it was found in favour of the appellants that the alienation is not for the benefit of the family, if the plea is permissible. hence this letters patent appeal.8. the principal contention of the learned counsel for the appellants is that the learned judge erred in holding that the 3rd defendant-alienee took possession of the suit property in the year 1948 and, therefore, the present suit filed beyond 12 years from that date, is barred by.....
Judgment:

Kondaiah. J.

1. This Letters Patent Appeal by the plaintiffs directed against the judgment of our learned brother. Vaidva, J., dismissing their appeal, gives rise to a short question of law. Whether or not the after-born sons can take advantage of the extended period of limitation provided under Section 6 of the Limitation Act, 1963 ?

2. In order to appreciate the scope of the question, it is necessary to briefly refer to the material facts which are not in dispute and which lie in a short compass.

3. The 1st defendant, who is the father of the 2nd defendant, alienated the land and a portion of the building belonging to the joint family to which both of them belong, on 25-8-1946 under a registered sale deed, Ex. A-1 in favour of the 3rd defendant for a consideration of Rs. 10,000/-. The alienee took possession of the property purchased by him, in the year 1948. The plaintiffs (appellants) who are the sons of the 2nd defendant, were born after the date of alienation in the years 1954 and 1957 respectively. The 2nd defendant filed O. P. No. 79 of 1951 in forma pauperis on the file of the Sub-Court, Viiavawada for a declaration that the sale deed. Ex. A-1 was sham and nominal and not binding on him. When he was directed, after due enquiry to pay court-fee on the plaint rejecting his claim to sue in forma pauperis he did not pursue the matter any further. Thereafter, the present suit has been filed by the after-born sons of the 2nd defendant on 11th July, 1961 for a declaration that the suit sale deed executed by their grandfather, the 1st defendant for himself, and as the guardian of their father, the 2nd defendant, who was then a minor in favour of the 3rd defendant, is sham, nominal and void, or in the alternative, it is 'benami', and for partition of the same.

4. The suit was resisted by the alienee, the 3rd defendant, contending inter alia that the alienation was true, valid, supported by consideration, binding on the plaintiffs and for the benefit of the family and that the suit by the after-born sons is barred by limitation, as it is beyond 12 years from the date of alienation.

5. Both the parties adduced oral and documentary evidence at the trial in support of their respective pleas.

6. The learned trial Judge, on a consideration of the entire material, oral and documentary held that the alienation was valid and supported by consideration, and for the benefit of the family and the suit was barred by limitation, as it was beyond 12 years from the date of the sale.

7. On appeal by the appellants, the learned Judge, Vaidya, J. agreed with the trial Judge that the sale is supported by consideration and binding on the Plaintiffs, and the suit is barred by limitation as it is beyond 12 years from the date of the alienee taking possession of the suit property in 1948. The learned Judge also was of the view that no issue relating to the beneficial nature of the alienation to the family ought to have been framed as there was no specific plea in the plaint in that regard. But, however, on merits, it was found in favour of the appellants that the alienation is not for the benefit of the family, if the plea is permissible. Hence this Letters Patent Appeal.

8. The principal contention of the learned counsel for the appellants is that the learned Judge erred in holding that the 3rd defendant-alienee took possession of the suit property in the year 1948 and, therefore, the present suit filed beyond 12 years from that date, is barred by limitation.

9. This claim of the appellants has been resisted by Mr. Venkatrami Reddy, learned counsel for the contesting respondents, contending inter alia that the suit is barred by limitation and there is no merit in this appeal.

10. In order to appreciate the scope of the respective contentions, it is necessary to briefly refer to the law relating to the rights of an after-born son in a Mitakashara Hindu family in respect of joint family property. It is well-settled that an improper alienation of joint family property by a manager or father can be challenged and set aside by or at the instance of an after-born co-parcener, provided some co-parcener who could challenge it but had not consented to it or ratified it before the after-born coparcener was begotten, was in existence at the time of the alienation. The basis for the aforesaid view was the overlapping of the two lives enabling the later born child to contest the validity of the father's act which is regarded as an exception to the rule that a member of the joint family must be content with the family estate as he finds it at his birth 'or at any rate he cannot complain of anything done before the period of gestation'; See Akhara Udasi Nirwani v. Surajpal Singh, AIR 1945 PC 1 and Visweswara v. Surya Rao, ILR 59 Mad 667 = (AIR 1936 Mad 440). It admits of no doubt that the after-born son acquires an interest in the family property by reason of his birth in the family although his right to sue is dependent upon the existence of a co-parcener at the time of the alienation. To put it differently, an after-born son or co-parcener derives his right to sue or challenge the improper alienation effected by the father or manager of the family, on account of his birth in the family but he does not derive such right to sue through or from the coparcener in existence at the time of the alienation. In the case of an improper alienation of any family property, be it by the father or manager, the other members of the co-parcenery are still interested in it excepting the share of the alienor, as there was no valid alienation. Under Article 109 of the Limitation Act, 1963 which corresponds to Article 126 of the old Limitation Act, a suit by a son of Mitakshara Hindu family to set aside his father's alienation of ancestral property may be filed within 12 years from the date of the alienee taking possession of the property. Section 9 of the Limitation Act provides that when once time has begun to run, nothing stops it. In other words, no subsequent disability or inability to institute a suit by the party would stop the running of the period of limitation. Where the cause of action accrues, time begins to run by virtue of the provisions of Section 9. Indisputably the cause of action accrues when there was in existence a co-parcener who can validly sue and who can be sued.

11. The alienee in the present case was found to have taken possession of the property in the year 1948. The suit by the present plaintiffs ought to have been filed within 12 years from 1948, i.e. before 1960. The present suit which was filed only on July 11, 1961 i.e. admittedly beyond 12 years from 1948 when the alienee took possession of the suit property must be held to be barred by limitation unless the extension of time provided under Sections 6 and 8 of the Limitation Act can be availed of by them. Section 6 provides for an extension or enlargement of the period of limitation in the case of certain persons suffering from a legal disability, viz., a minor, an insane person or an idiot, for instituting a suit or making an application for the execution of a decree. However, the provisions of Section 6 would come to the aid of only such a person who is entitled to institute a suit or make an application for the execution of a decree 'at the time from which the period is to be reckoned' but not others. The scope and content of the expression 'a person entitled to institute a suit at the time from which the period of limitation is to be reckoned' fell for consideration before the Judicial Committee in Ranodip v. Parmeshwar Pershad, AIR 1925 PC 33 at P. 34. Therein, the suit instituted on June 23, 1920 by the four sons of one Thakur Prithi Singh born on 23-8-1886, 4-8-1891, 1-10-1897 and 30-11-1900 for possession of the suit village which was alienated by their father on June 3, 1893 and put in possession of the alienee, was held to be barred by limitation within the meaning of Article 126 of the Limitation Act Sir Lawrence Jenkins, speaking for the Judicial Committee, observed thus:

'The cause of action arose on the 3rd June 1893, and it is from that date that the period of limitation is to be reckoned. The fourth plaintiff's subsequent birth on the 30th November, 1900, did not create a fresh cause of action or a new starting point from which limitation should be reckoned.

To the contention that by the cited sections the period of limitation is extended for three years from the cessation of the fourth plaintiff's minority the answer is that by their express terms this extended period can only be claimed by a person entitled to institute the suit at the time from which the period of limitation is to be reckoned. The fourth plaintiff does not come within this description, for at that time he was not in existence. He, therefore, is not entitled to the three years' extension, and his suit is consequently barred.'

12. Applying the principle enunciated by the Judicial Committee in the case referred to above, we must hold that the plaintiffs herein, who were not in existence at the time of the alienation or on the date of the alienee taking possession of the suit property, are not entitled to avail of the provisions of Section 6 which provides for an extension or enlargement of the period of limitation as they would not fall within the description of a 'person entitled to institute a suit at the time from which the period of limitation is to be reckoned.' Their subsequent birth also has not created a fresh cause of action or a new starting point from which the period of limitation should be reckoned.

13. True the cause of action of sue for setting aside an improper alienation by the father or manager of a Hindu Mitakshara family arises to the son or sons in existence at the time of the alienation in a representative capacity. In other words, it is for the benefit of the sons or co-parceners in existence as well as sons that might be born subsequently. Though the cause of action accrued to the subsequently born sons is the same as in the case of the sons in existence at the time of the alienation and the subsequent birth of a son does not create a fresh cause of action or a new starting point of period of limitation, the time from which the period of limitation is to be reckoned in the case of an after-born son is the date on which the alienee took possession but not as per the beneficial or extended period of limitation provided under Section 6. The suit by the appellants who are not entitled to the extended period of limitation provided under Section 6, must be held to be barred by limitation, if they fail to institute the suit within 12 years from the date when the alienee took possession of the suit property. The extended period of limitation provided under Section 6 would be applicable only to minor members of the Hindu Co-parcenery who were in existence on the date of the improper alienation. Where there was no other co-parcener existing on the date of the alienation, the after-born sons would completely be barred from challenging the validity of such alienation. The appellants, in the circumstances, could sue for a declaration within 12 years from the date of the alienee taking possession of the property, as limitation had already started and did not stop and their subsequent birth in the family after the alienation would not give a fresh or new starting point of limitation.

14. For the reasons stated, we hold that the present suit filed by the appellants herein, who are the after-born sons of the 2nd defendant, on 11-7-1961 for a declaration that the alienation of the suit properties under Ex. A-1, registered sale deed dated 25th August, 1946, by their grandfather, the 1st defendant for himself and on behalf of his then minor son he 2nd defendant, in favour of the 3rd defendant who is found to have taken possession of the alienated property in the year 1948, is barred by limitation, as it is beyond the period of 12 years provided under Article 126 of the old Limitation Act (Article 109 of the present Act).

15. Our decision on this question of limitation would be sufficient to dispose of the appeal. That apart, we agree with the finding of the learned Judge that the sale deed under Exhibit A-1 was true, valid and supported by consideration. It is unnecessary for us to go into the question whether the alienation was for the benefit of the family or not in view of our finding that the suit is barred by limitation.

16. In the result, the appeal fails end is dismissed with costs. The appellants are directed to pay the court-fee payable to the Government.


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