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Ram Charitter Misir Vs. Suraj Teli and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1932All108; 136Ind.Cas.71
AppellantRam Charitter Misir
RespondentSuraj Teli and anr.
Excerpt:
- - in the case before us, the suit having been admittedly brought more than three years from the date the plaintiif attained majority is clearly barred......to the defendant appellant. it appears that an application was made by the guardian to the district judge for permission to mortgage the property in dispute. the district judge made some inquiries to satisfy himself as regards the propriety of transfer of the minor's property and directed the guardian to produce the draft of the mortgage deed for which sanction had been applied for. at a later date the draft of a sale-deed was filed. it has been found that the district judge was under the impression that the draft produced before him was that of the proposed mortgage-deed to which his permission referred. the district judge, it has again been found, sanctioned the draft under the impression that it related to the transaction of mortgage to which proceedings before him referred......
Judgment:

Niamatullah, J.

1. This is a defendant's appeal and arises out of a suit brought by the plaintiff respondent for recovery of certain property sold by his mother, who was the certificated guardian, during his minority, to the defendant appellant. It appears that an application was made by the guardian to the District Judge for permission to mortgage the property in dispute. The District Judge made some inquiries to satisfy himself as regards the propriety of transfer of the minor's property and directed the guardian to produce the draft of the mortgage deed for which sanction had been applied for. At a later date the draft of a sale-deed was filed. It has been found that the District Judge was under the impression that the draft produced before him was that of the proposed mortgage-deed to which his permission referred. The District Judge, it has again been found, sanctioned the draft under the impression that it related to the transaction of mortgage to which proceedings before him referred. The sale deed was eventually executed on 1st Juno 1918 for a sum of Rs. 500. The plaintiff-respondent instituted the suit which has given rise to this appeal on 22nd January 1927, claiming possession and impugning the sale deed executed by his guardian as void. It was expressly stated in the plaint that he attained majority on 1st December 1923, a question on which the defendant appellant joined issue. It is not necessary for us to find the exact date on which the plaintiff attained majority, as for purposes of the appeal it is enough to assume that the date given by the plaintiff is correct.

2. Both the Courts below have decreed the suit. The Court of first instance held that the permission of the District Judge was obtained by misrepresentation and fraud, and that the plaintiff's suit was governed by 12 years limitation provided for by Article 144. On these findings it decreed the plaintiff's suit for possession subject to payment by him of a sum of Rs. 244, part of the consideration of the sale-deed (namely, Rs. 500), which according to that Court was warranted by legal necessity. In appeal before the lower appellate Court the question of limitation does not seem to have been raised either in the petition of appeal or in arguments, and the learned Additional Subordinate Judge affirmed the decree passed by the Court of first instance without reference to the question of limitation.

3. The only point argued in second appeal is that the plaintiff's suit is, on the face of the plaint, barrel by limitation. We may clear the ground by disposing of the contention put forward before us by the learned advocate for the respondents, that the plea of limitation was abandoned before the lower appellate Court. It is true that the finding of the Court of first instance that Article 144, Limitation Act, applied was not impugned in the grounds of appeal. The judgment of the lower appellate Court is also silent as to any question of limitation having bean raised before it in course of. the arguments. We are inclined to think that the pleader who represented the I appellant in the lower appellate Court was of opinion that the question of limitation had bean rightly decided by the I Court of first instance. We are however I of opinion that it is open to the appellant to re-agitate the question of limitation on the facts admitted by the plaintiff-respondent. If there had been any complication as regards facts on whioh the plea rests so that the finding of the lower appellate Court could possibly have been in favour of the respondent, we might not have entertained the plea of limitation under the circumstances referred to; but the argument addressed to us rests on facts admitted by the plaintiff himself. The date on which, according to the plaintiff respondent, he attained majority was 1st December 1923, and the suit having been instituted on 22nd January 1917 was barred by three years rule, if it is applicable.

4. The only question is whether Article 41 or Article 144, Limitation Act applies. It is argued that as permission of the District Judge was obtained by practising fraud, the transaction entered into by the guardian in pursuance of such permission is void. The contention is not, in our opinion, sound. Section 30, Guardian and Wards Act, declares that the transfer made by a certificated guardian without the permission of the District Judge is voidable. If the permission of the District Judge was obtained through fraud j or misrepresentation, it is certainly void j but the transaction itself is not void on I that score. A permission obtained by a I fraudulent misrepresentation being void I is a nullity, and a transfer ostensibly 1 made in pursuance of such permission must be considered to be one made with out permission, and as such it is not void but voidable under Section 30, Guardians and Wards Act. In this view there can be no doubt that Article 44, Limitation Act is applicable, and the plaintiff cannot avail himself of the longer period provided for by Article 144 for a suit for possession if his claim to have the voidable alienation made by the guardian during the plaintiff's minority set aside is barred. In the case before us, the suit having been admittedly brought more than three years from the date the plaintiif attained majority is clearly barred. The result is that this appeal must succeed. It is accordingly allowed, and the decrees passed by the Courts below are set a side and the plaintiff's suit is dismissed. The defendant-appellant is not allowed costs incurred by him in the lower appellate Court. He will have his costs of the Court of first instance and of this Court.


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