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Chinnaiah Kownder Vs. Kattayya Kownder - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1951 of 1974
Judge
Reported inAIR1978Mad51
ActsLimitation Act, 1963 - Sections 6(1), 8 and 27
AppellantChinnaiah Kownder
RespondentKattayya Kownder
Disposition Appeal dismissed
Cases ReferredLalit Kumar v. Nagendralal
Excerpt:
.....sections 6(1) 8 and 27 and article 65--sale void against a minor--purchaser under no duty to minor--suit for recovery of possession of (property by minor--to be filed within twelve years from date of sale or three years after the minor attains majority whichever is longer;the proposition advanced that in every case where the sale is void as against a minor, the purchaseer shall not be deemed to be in adverse possession during the minority cannot be accepted without any limitation. where the person entering into possession is under no duty to the minor and has entered into possession for his own benefit and in assertion of his title hostile to that of the minor, limitation begins to run form the date when he has taken possession and his adverse possession against the minor commence..........entered into possession for his own benefit and in assertion of his title hostile to that of the minor, limitation begins to run from the date when he has taken possession and his adverse possession against the minor commences from the date on which he has taken possession, though the minor should be entitled to file a suit within three years from the date of his attaining majority. but the learned counsel for the appellant relied on a decision of the calcutta high court in lalit kumar v. nagendralal, air 1940 cal 589, where we find a general statement that the possession of the purchaser could not be adverse to the minor until he attained the age of majority. for this proposition, the learned judge has not given any authority, but as we found it, this is contrary to the various.....
Judgment:
1. The defendant is the appellant. The suit was filed by the respondent for a declaration of his title to the suit property and for an injunction. The suit property originally belonged to the defendant and his elder brother one Rama Gounder. In their hands it was a joint family property. The elder brother of the defendant died somewhere in the year 1950 when the defendant was a minor. The defendant's parents had died earlier than that. Therefore the defendant was brought up by his maternal uncle. The maternal uncle sold the property to the plaintiff on 12-11-1956 as guardian of the defendant who was then minor. The present suit was filed by the plaintiff on 21-8-1970, as already stated for a declaration and injunction. In the plaint it was stated that at the time when the sale deed was executed on 12-11-1956. the defendant was about 17 years old. But this was denied by the defendant in the written statement and he contended that he was only about 11 years old at the time of the transaction. The main defence of the defendant was that the maternal uncle was not the legal guardian or the de facto guardian and that the sale deed in favour of the plaintiff was void and inoperative. The defendant also pleaded that the sale was not supported by consideration and it was also not for necessity binding on the minor. Both the courts below have concurrently hold that though the sale deed by the maternal uncle was void and inoperative both on the ground that it was not for necessity or for any binding purposes, and also on the ground that the maternal uncle was neither a legal nor a de facto guardian of the minor, the plaintiff is entitled to the declaration and injunction as on the date of filing of the suit, he had prescribed title to the suit property by adverse possession.

2. In this second appeal, the learned counsel for the defendant-appellant contended that since the transaction was held to be void, the period of limitation for prescribing title by adverse possession is 12 years from the date of the defendant attaining the age of majority, that the defendant has stated in the written statement, that he was only 11 years in 1956 and he would have attained the age of majority only in 1963, and if 12 years is reckoned from 1963, the plaintiff should prove adverse possession till 1975 in order to get a declaration of title on the basis of adverse possession and since the suit itself was filed on 21-9-1970, the plaintiff was not entitled to the declaration of title as prayed for.

3. The defendant was 17 years old at the time of the sale in 1956, and therefore, he is not correct in contending that he was only 11 years old. There is no finding on this question by the Courts below. But in view of the categorical statement in the written statement that he was only 26 years old in 1971, and 11 years of the age in 1956, we shall proceed to consider the question on the basis that the plaintiff was only 11 years old in 1956.

4. The argument of the learned counsel for the defendant-appellant is that during the minority of the appellant, the plaintiff's possession was not adverse to him and that therefore his right to recover possession would not be lost until after the expiry of a period of 12 years from the date of attaining the age of majority. In this connection, he relies on Article 65 of the Limitation Act, 1963 (Central Act 36 of 1963), which provided a period of 12 years for a suit for possession of immoveable property based on title from the date when the possession of the defendant became adverse to the plaintiff. The proposition advanced by the learned counsel for the appellant that in every case where the sale is void as against a minor, the purchaser shall not be deemed to be in adverse possession during the minority cannot be accepted without any limitation. In Seetharamaraju v. Subbaraju, ILR 45 Mad 361 : (AIR 1922 Mad 12), a similar question was considered in a case where a lunatic's wife who was neither his committee in lunacy nor his legal guardian sold his lands to a third party. It was held in that case that it could not be stated as a general proposition that there could be no adverse possession of property which belongs to a lunatic or a minor during the continuance of the launcy or minority and the question in each case had to be decided with reference to the anterior relationship between the person taking possession and the minor or lunatic and to whether any circumstances exist which would entitle the court to hold that the person who entered into possession did so under circumstances which would in law make him only an agent or bailiff of the minor or lunatic. The learned Judges observed that under the Limitation Act, lunacy or minority, does not by itself prevent time from running as against the lunatic or minor, although an extended period is provided in such cases. This decision is followed in Rachappa v. Hadiyalaya, AIR 1945 Bom 63, where also it was hold that where the person entering into possession is under no duty to the minor, and has entered into possession for his own benefit and in assertion of his title hostile to that of the minor, limitation begins to run from the date when he has taken possession and his adverse possession against the minor commences from the date on which he has taken possession, though the minor should be entitled to file a suit within three years from the date of his attaining majority. But the learned counsel for the appellant relied on a decision of the Calcutta High Court in Lalit Kumar v. Nagendralal, AIR 1940 Cal 589, where we find a general statement that the possession of the purchaser could not be adverse to the minor until he attained the age of majority. For this proposition, the learned Judge has not given any authority, but as we found it, this is contrary to the various decisions of this court and the Bombay High Court. It is also seen from Section 6 of the Limitation Act, that minority does not in any way affect the possession being adverse. Clause (1) of that section reads as follows-

"Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise, have been allowed from the time specified therefor in the third column of the Schedule."

It is seen from the first part of this provision that the first question to be determined is assuming that the person against whom the provisions of the Lim. Act are applied is a major and not suffering from any disability, what would be the time within which the suit will have to be filed. If the transaction is void, the purchaser would be prescribing title by adverse possession from the date on which he took possession under the void document. The possession thus becomes adverse from the date on which the sale took place. The second part of Section 6(1) provides that if the person against whom the adverse possession had commenced is a minor, the minor will have an extended period of limitation for recovery of possession from the purchaser and a suit for recovery of possession could be filed within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the schedule. If this clause alone had stood, probably the learned counsel for the appellant would be well-founded in his contention that the period of 12 years for prescribing title by adverse possession will have to be calculated from the date when the minor attained the age of majority. But under Section 8 of the Act, it is provided that nothing in Section 6 shall be deemed to extend for more than three years from the cessation of the disability the period of limitation for any suit or application. There-fore, though prima facie, under Article R5 read with Section 6(1) of the Lim. Act, a suit for recovery of possession could be filed! by the minor within 12 years from the date when he attained age of majority in case where the transaction was void, by reason of Section 8, such a suit will have to be filed (within) three years of attaining of the age of majority and the minor could not claim the extended period of 12 years. The period of limitation therefore for recovery of possession by a minor in respect of a void transaction is 12 years from the date of sale or three years after he attained the age of majority whichever is longer. In this case whether it is three years after the attaining of majority or 12 years from the date of sale, the period had already lapsed by the time the plaintiff filed the suit. In such a case, it is open to the plaintiff to ask for a declaration of his title, in effect the suit is for a declaration that the defendant is not entitled to recover possession of the property from the plaintiff and that his remedy is lost or his right is extinguished. Section 27 of the Limitation Act provides that at the determination of the period of limitation provided thereunder, his right to such property shall be extinguished. If the defendant's right is extinguished, the plaintiff is entitled to the declaration that he is entitled to the property. The suit construed in that manner is maintainable. As already stated, that even if the defendant's contention that he was only 11 years old in 1956, is to be accepted, since his right having been extinguished, the courts below were right in giving the declaration of title to the plaintiff. The second appeal accordingly fails and the same is dismissed. There will be no order as to casts.


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