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Boologam Naidu Vs. Jagannath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Case NumberAppeal No. 818 of 1949
Judge
Reported inAIR1955Mad202
ActsLimitation Act, 1908 - Schedule - Articles 120, 127, 136, 137 and 138
AppellantBoologam Naidu
RespondentJagannath and ors.
Appellant AdvocateS. Thyagaraja Iyer, Adv.
Respondent AdvocateK. Sankara Sastri and ;T.S. Venkatarama Iyer, Advs.
DispositionAppeal dismissed
Cases ReferredHarikrishna Chowdhary v. Venkata Lakshmi Narayana
Excerpt:
limitation - joint possession - articles 120, 127, 136, 137 and 138 of schedule to limitation act, 1908 - whether joint possession of coparcener is possession as contemplated in article 138 - every member of joint hindu family is in possession of entire joint family property along with others - word possession in article 138 should be deemed to take in possession which undivided member of joint hindu family has in joint family properties - possession to be understood as possession of single individual and not that of members of joint hindu family - article 138 apply to case where judgement-debtor was in possession at date of sale - held, possession of member of joint hindu family is possession contemplated in article 138. - - 55 of 1936 it is clearly stated that what was disallowed..........to this e. p., he was not represented in the petition, because his father, the manager of the joint family was on record.2. the other argument of the learned counsel is that the decree in o. s. no. 55 of 1933 cannot be held to have restored what was disallowed on the claim petition; because it is only a party against whom an order is made that may institute a suit to establish the right which he claims in the property in dispute and since o. s. no. 55 of 1936 was by the sixth defendant, the order on the claim petition must be deemed to have become conclusive and therefore the attachment of his 1/8th share must be deemed to have been disallowed long ago. we are unable to accept this contention because in the decree in o. s. no. 55 of 1936 it is clearly stated that what was disallowed.....
Judgment:

Govinda Menon, J.

1. This is an appeal by the second defendant, the son of the first defendant, against the decree of the lower court directing the sale of his 1/8th share. Mr. S. Thyagaraja Aiyar for the appellant contends that since the second defendant was not made a party to E. P. No. 308 of 1937, the sale of his share is null and void. We find that it was after the filing of E. P. No. 308 of 1937 that the decree in O. S. No. 55 of 1936 was passed on 10-7-1937, by which the order on the claim petition was set aside and the attachment of the second defendant's share was restored. As the first defendant was the kartha of the family, he must be deemed to have represented the second defendant also in E. P. No. 308 of 1937. It cannot be said that even though the second defendant was hot 'eo nomine' a party to this E. P., he was not represented in the petition, because his father, the manager of the Joint family was on record.

2. The other argument of the learned counsel is that the decree in O. S. No. 55 of 1933 cannot be held to have restored what was disallowed on the claim petition; because it is only a party against whom an order is made that may institute a suit to establish the right which he claims in the property in dispute and since O. S. No. 55 of 1936 was by the sixth defendant, the order on the claim petition must be deemed to have become conclusive and therefore the attachment of his 1/8th share must be deemed to have been disallowed long ago. We are unable to accept this contention because in the decree in O. S. No. 55 of 1936 it is clearly stated that what was disallowed on the second defendant's claim had been restored as a result of the suit.

3. Mr. Thyagaraja Aiyar then raised the question of limitation which the learned Judge has decided under issue No. 7. This raises a rather interesting question Where the applicability of Article. 120 has to be considered.

4. The sale certificate Ex. A. 1 is dated 6-5-1938 whereas the sale took place on 13-10-1937. The present suit was instituted on 30-7-1947, i.e., more than three months before the expiry of 10 years from the date of sale But within a few more months of the termination of that period from the issuing of the sale certificate. Tlie argument of the learned counsel is that where the rights in joint family property of a coparcener is sold in Court auction, or is alienated by him voluntarily, what the purchaser gets is an 'equity' to work out his remedies by filing a suit for partition and getting the share of the vendor, or judgment debtor coparcener, allotted to him. Until such an event takes place, what has been acquired by the purchaser is what is legally termed an equity or an inchoate right which cannot be tangibly exercised or utilised. Such a purchaser does not become a coparcener with the remaining members of the family; nor is he entitled to be in joint possession of the properties as a tenant in common can do under an ordinary co-ownership of property. He is also not entitled, to claim mesne profits from the other coparceners until and unless after a suit for partition, or by consensus of opinion among the remaining members, the seller's or judgment-debtor coparcener's share in the property is specifically allotted to him.

In these circumstances, it cannot be said that any particular article prescribing a period of limitation in the schedule to the Limitation Act can be said to apply to a suit by a purchaser except the residuary Article 120. Observations of their Lordships of the Supreme Court in -- 'Sidheswar v. Bhubneshwar', : [1954]1SCR177 (A) are relied upon. At page 491 of the report their Lordships say:

'All that lie (the purchaser) purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of purchase.'

This case did not deal directly with any question of limitation but the rights of a purchaser are enumerated and clarified by their Lordships in detail. There can be no doubt, in view of these observations as well as the settled, principles of Hindu law, that a purchaser cannot be inducted into joint possession with erstwhile coparcener whose rights have been sold and purchased, by him, (See also - 'Maharaja of Bobbili v. Venkataramanujulu Naidu', AIR 1915 Mad 453 (B) and --'Nanjaya Mudali v. Shanmuga Mudali', AIR. 1914 Mad 440 (C).' But does that by itself attract the operation of Article 120, Limitation Act or is there any other provision of the Limitation Act which specifically can be made applicable to a state of circumstances like this?

5. In the decision reported in-- 'Shevantibai v. Janardhan', : AIR1939Bom322 (D) the facts were: Two out of three undivided members of a joint Hindu family mortgaged their share in the joint property in 1879. In 1882 one of them sold his share to the mortgagee. The vendor-coparcener died in 1896 and the other mortgagor in 1898, both without leaving any male issue. In 1937 the successor-in-title of the mortgagee filed a suit for partition of the joint family property and to have allotted to him a share purchased by the mortgages from One of the coparceners & also sought to enforce the mortgage. On those facts it was held that neitlier Article 144 nor Article 142 applied but only the residuary Article 120 applied & that the suit was therefore barred by limitation. But the emphasis is laid both by Beaumont C. J. and Wadia J. on the starting point of limitation being the date of death of the alienating coparcener; and since that took place in 1896 there can be no question of enforcing any right of possession which he possessed. Wadia J. at page 334 of the report refers to this question in the following terms:

'The other question is whether the suit to enforce partition is barred by limitation. I do not think the case falls within Article 127, because that clearly refers to a claim made by the plaintiff as a member of the coparcenary and the words 'when the exclusion becomes known to the plaintiff' refer to the plaintiff as the member of the coparcenary, and not to the purchaser from that member. I do not think that the case falls within Articles 136, 137 and 138 either. Nor does it fall within Article 142 though the allegations in para. 10 of the plaint seem to point to it. Article 144 also does not apply. Both these articles are articles applicable to suits for possession, and it is admitted that an alienee of the undivided interest of a Hindu coparcener is not entitled to possession. It cannot be said that the possession of any person is adverse to that of a person who is not entitled to any possession at all. The only other article, therefore, is the residuary Article 120, and that gives six years as the period of limitation from the time the cause of action arose. The cause of action in this case at the latest would arise from the death of the vendor when he lost his right to possession by reason of his death....'

6. The circumstances of the present case are not similar to what came up for discussion before the Bombay Bench. At the time of the sale 13-10-1937, the first and second defendants, as members of an undivided joint Hindu family, were in joint possession of the family properties with the other members of the family and their right to possession ceased to be effective only from the date of sale. In such a case, though the 'terminus a quo' arose from that date, does it necessarily mean that Article 120 ought to be applied? Recently our learned brother Krishnaswami Nayudu J. had to consider the same point in 'S. A. Nos. 1655 of 1949 and 2781 of 1949 (Mad) (E)', which arose from the judgment of one of us (Ramaswami J. as District Judge of Chingleput) and before him the Bombay decision was cited. Our learned brother was of opinion that the matter is an important one and has referred both the second appeals for decision by a Bench. In the very nature of things, we cannot have those appeals posted before us for decision, but as the same point has been raised and discussed at great length before us, we propose to express our opinion about the applicability of the Bombay decision to cases where the cause of action arose by the sale of the interest of a member of a joint Hindu family either in court auction or by private treaty.

As his already been remarked, the 'raison detre' of the Bombay case is based upon the date of death of the alienating coparcener and the learned Judges were therefore of opinion that none of the articles of the Limitation Act, except Article 120 would apply. We agree with them that Article 127 has no relevancy whatever because it can apply only to a member of a joint family excluded from participation in the joint family property and who seeks to enforce a right to share in it. The period of limitation in such a case is twelve years from the date when the exclusion becomes known to the plaintiff. Article 127 is thus Inapplicable to cases of outsiders. Therefore the view of the Bombay Judges that a purchaser from a coparcener is not affected by that article is in our opinion correct.

7. But) the question is whether any of the articles in the fasciculus of Articles 136, 137 and 138 can be attracted. Article 136 contemplates a case where the vendor was out of possession on the date of sale. In the present case, the judgment-debtor's vendors were in joint possession and therefore we cannot use Article 136. Article 137 is intended to be utilised in cases where there is a suit by a purchaser at a sale in execution of a decree, when the judgment-debtor was out of possession at the date of sale. The starting point of the period of limitation therefore is when the judgment-debtor was first entitled to possession. Like Article 136, this article also is inapplicable. But the third article, Article 138 is in our opinion the one which has relevancy. It contemplates a suit by a purchaser at a sale in execution of a decree when the judgment-debtor was in possession at the date of sale. As we have already remarked, defendants 1 and 2 were in joint possession of the properties on 13-10-1937 when the sale took place and 'therefore when a suit is filed within twelve years from the date when the sale becomes absolute, it is in time.

8. Whether Joint possession of a coparcener is 'possession' as contemplated in Article 138 has next to be considered. A Bench of this court in a case reported in -- 'Venkayya v. B. Ramakrishnamma', 9 Ind Cas 495 (P) had to consider the meaning of the word. 'possession' In Article 136, and the learned Judges Abdur Rahim and Ayling JJ. came to the conclusion that the word 'possession' in Article 136 includes possession which a member of a joint Hindu family is presumed to have in the family property until excluded therefrom; and therefore when a suit Is brought by a purchaser from a member of a Joint Hindu family, who is alleged to have been out of possession at the time of sale, Article 136 applies. As authority for this proposition -- 'Ram 'Lakhi v. Durgacharan Sen', 11 Cal 680 (G) and -- Muthusami v. Ramakrishna, 12 Mad 292 (H) are cited.

In both these decisions, there is the assumption that every member of a joint Hindu family is in possession of the entire joint family property along with others and the learned Judges were of opinion that possession contemplated in Aft. 136 can be said to be the possession of such a. Joint family member. If the possession referred to in Article 136. can be that of a member of a joint Hindu family having joint possession, we fail to see why, when the Act deals with possession of judgment debtors and alienating coparceners, as in Arts. 137 and 138, a different meaning should be given to the word 'possession' in Articles 137 and 138. We are therefore definitely of opinion that the word 'possession' in Article 138 should be deemed to take in, the possession which an undivided member of a Joint Hindu family has in the joint family properties. This view of ours, finds support in the recent edition (7th Edn.) of Mitra's Law of Limitation and Prescription, at page 751, where the authors say that a suit by an auction purchaser of the share of a member of a joint family, for partition and possession, would come either under Article 137 or Article 144. That Article 138 would apply to a case where the judgment debtor was in possession at the date of the sale is clear, from the observations of Best J. in -- 'Arumuga v. Chockalingam', 15 Mad 331 (I) though the decision is that it would not apply to a purchaser from a court auction purchaser.

There are observations of a similar nature in -- 'Pullayya v. Ramayya', 18 Mad 144 (J), though in that case it was held that since the execution purchaser would be barred, an assignee from him would equally be barred. Horwill J. was of opinion that Article 137 would apply to a case of a purchaser from a purchaser in court auction. See --'Venkatasami Naicker v. Navaneethakrishna Chettiar AIR 1843 Mad 413 (K). It is unnecessary in the present case to go so far because the plaintiff here is the purchaser himself: There, is no escape from the plain words of Article 138 unless we hold that the word 'possession' should be understood as possession of a single individual and not that of the members of a Joint Hindu family. As we are in agreement with the learned Judge who defined that word in 9 Ind Cas 495 (F)', there is absolutely no room for doubt that possession of a member of a joint Hindu family is the 'possession' contemplated in Article 138. Our attention was also invited to the observations in -- 'Harikrishna Chowdhary v. Venkata Lakshmi Narayana', 34 Mad 402. We do not think that that decision has any application to the facts of the present case. Though the learned Subordinate Judge has not given any reasons for coming to conclusion that the suit brought within a period of 12 years is in time, for the reasons above stated we are in agreement with his conclusion and this appeal is also dismissed but in the circumstances without costs.


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