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Bachan Singh Vs. Kamta Pershad and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.585
AppellantBachan Singh
RespondentKamta Pershad and ors.
Excerpt:
.....this, and that the suit should have been brought within three years of the date on which the plaintiff attained majority. the guardian of the plaintiff had no authority to sell his property except for his benefit, and if the plaintiff benefited only in respect of a part of the sale consideration he is in equity liable to make good to the purchasers the portion of the consideration by which he benefited, and he would be entitled to recover the property only on condition of his paying to the purchasers that portion of the consideration......property except for his benefit, and if the plaintiff benefited only in respect of a part of the sale consideration he is in equity liable to make good to the purchasers the portion of the consideration by which he benefited, and he would be entitled to recover the property only on condition of his paying to the purchasers that portion of the consideration. the learned vakil for the respondents asks us to affirm the decree of the first court which granted to the plaintiff a decree for a portion only of the property. we find no justification for the course adopted by that court. the principle hitherto applied by the courts in respect of such transaction, is to make a decree for the property transferred by the guardian, but to attach to the decree the condition that the plaintiff should.....
Judgment:

1. The suit out of which this appeal has arisen was brought by the plaintiff-appellant to recover certain property sold by his mother Musammat Bhawani, during his minority on the 7th of July 1896. The plaintiff attained majority on the first of July 1901 and instituted the suit on the 14th of August 1907. His allegation was that his mother had no authority to sell the property and that there was no necessity for the sale. He asked for a declaration that the sale was void and could not affect his interests, and, as stated above, he sought to recover possession of the property comprised in the sale. The Court of first instance decreed the claim in part. The lower appellate Court held that the sale by the mother was for the benefit of the minor to the extent of Rs. 285, that is to say, that there was necessity for raising that sum for the benefit of the minor and to save his other property, and that to that extent the minor was liable. It made a decree for possession subject to the condition that the plaintiff should make good to the defendants Rs. 285, otherwise the suit would stand dismissed. From this judgment two appeals were preferred and were disposed of by a learned Judge of this Court. He held that the claim was barred by limitation, not having been brought within three years from the date on which the plaintiff attained-majority, and he applied to it the provisions of Article 91 of Schedule II of the Indian; Limitation Act No. XV of 1877, and dismissed the suit in its entirety. From the judgment of the learned Judge of this Court this Appeal and the connected Appeal No. 83 of 1909 have been preferred. It is contended that article 91 of Schedule II of the Limitation Act of 1877, does not apply to a case like this. In our judgment this contention is well founded. The suit of the plaintiff is not one to set aside a document executed by himself, but to recover immovable property belonging to him, which, according to him, had been alienated by his guardian without valid authority to do So. Such a suit is in reality a suit for the recovery of immovable property, and the prayer for a declaration that the sale does not affect the plaintiff's rights is only ancillary to the substantive claim for possession. As was pointed out by the Madras High Court in Enni v. Kunchi Amma 14 M. 26, when a person seeks to recover property against an instrument executed by himself, or one, under whom he claims, he must first obtain the cancellation of the instrument, and the three years' rule enacted by article 91 applies to any suit brought by such person'. But, 'where an instrument of alienation is executed by a person who is not the full owner of the property, but has only conditional authority to dispose of it, that article would not apply'. The learned Judges proceed to observe such are the cases of a guardian for minor, the manager of a Hindu family, or the sonless widow in a divided Hindu family'. In these cases, as was argued by the appellant's Vakil, 'it is not only not necessary, but it is not possible, to have the instrument of alienation cancelled and delivered up, because, as between the parties to it, it may be a perfectly valid instrument. All that is needed is a declaration that the plaintiff's interest is not affected by the instrument, and that declaration is merely ancillary to the relief, which may be granted by delivery of possession.' A similar view was held by this Court in several cases, of which we may refer to the case of Abdul Rahman v. Sukhdayal Singh 28 A. 30 : A.W.N. (1905) 176 : 2 A.L.J. 507. The same principle was laid down in Jhamman Kunwar v. Tiloki 25 A. 435, and also in Ram Dei Kunwar v. Abu Jaffar 27 A. 494 : A.W.N. (1905) 68. We are accordingly unable to agree with the learned Judge's view that Article 91 applies to a case like this, and that the suit should have been brought within three years of the date on which the plaintiff attained majority. The article applicable to such a suit is, in our judgment, Article 141. It was contended by the learned Vakil for the respondents that as the lower appellate Court in its judgment held that the sale made by the plaintiff's guardian was for necessity, a decree for possession of the property ought not to have been made. It is true that in its finding on issue No. 5 the lower appellate Court said that Musammat Bhawani as de facto guardian was competent to execute the sale-deed of 7th July 1896, in favour of the defendants, and that it was executed for the plaintiff's benefit, but this finding must be read with the finding on the 4th issue, which is to the effect that a portion of the consideration for the sale namely, Rs. 285, was for the benefit of the plaintiff. The learned Additional Judge accordingly made a decree for possession, subject to the condition that the plaintiff should pay to the defendants the aforesaid sum of Rs. 285 within a time fixed. 'We think that the lower appellate Court was right in making a decree in the terms referred to above. The guardian of the plaintiff had no authority to sell his property except for his benefit, and if the plaintiff benefited only in respect of a part of the sale consideration he is in equity liable to make good to the purchasers the portion of the consideration by which he benefited, and he would be entitled to recover the property only on condition of his paying to the purchasers that portion of the consideration. The learned Vakil for the respondents asks us to affirm the decree of the first Court which granted to the plaintiff a decree for a portion only of the property. We find no justification for the course adopted by that Court. The principle hitherto applied by the Courts in respect of such transaction, is to make a decree for the property transferred by the guardian, but to attach to the decree the condition that the plaintiff should pay to the transferee so much of the consideration as was for his benefit, or for which, there was a justifying necessity. We may refer to Gobind Singh v. Baldeo Singh 25 A. 330, in which, the widow of a separated Hindu, had sold property belonging to the estate of her deceased husband, and the sale as to a portion of the consideration was justified by legal necessity, and as to the remainder of the, consideration not so justified, it was held, that it was competent to the next reversioner to sue for and obtain a decree for the property on payment of such portion of the consideration as represented moneys borrowed by the widow for legal necessity. The principle laid down in that case applies to a sale by a guardian where a part only of the consideration was such as was binding upon the minor. The same view was held in the case of Ram Dei Kunwar v. Abu Jaffar 27 A. 494 : A.W.N. (1905) 68. For these reasons we are of opinion that the decree of the lower appellate Court was right. We accordingly allow the appeal, set aside the decree of this Court and restore that of the lower appellate Court with costs. We extend the time for payment of Rs. 285 mentioned above for a period of two months from this date.


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