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Chinnaiah Kownder Vs. Kattayya Kownder - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1977)2MLJ382
AppellantChinnaiah Kownder
RespondentKattayya Kownder
Cases ReferredLalit Kumar v. Nagendralal
Excerpt:
- .....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 be 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 : air1940cal589 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.....
Judgment:

V. Ramaswami, J.

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 12th November, 1956 as guardian of the defendant who was then a minor. The present suit was filed by the plaintiff on 21st August, 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 12th November, 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 held 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 h ad 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 be 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 21st September, 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, be 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 be was only 26 years old in 1971, and 11 years of the age of 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 XXXVI of 1963), which provided a period of 12 years for a suit for possession of immovable 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 to at 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 I.L.R. (1922) Mad. 361 : 42 M.L.J. 262 : A.I.R. 1922 Mad. 12, a similar question was considered in a case where a lunatic's wife who was neither his committee in lunacy not 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 lunacy 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 hole that the person who entered into possession did so under circuit stances which would in law make him only an agent or bailee (sic) 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 : AIR1945Bom63 , where also it was held 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 be 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 : AIR1940Cal589 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 is follows:

Where a person entitled to institute a suitor 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 with in 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 Limitation Act is 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. Therefore, though prima facie, under, Article 65 read with Section 6 (1) of the Limitation Act, a suit for recovery of possession could be filed by the minor within 12 years from the date when be attained the 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 yeas. The period of limitation there fore for recovery of possession by a minor in respect of a void transaction is 12 years from the late of sale or three years after he attained the age of majority which ever 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 the is entitled to the property. The suit construed in that manner is maintainable. As already stated, even if the defendant's contention that he was only 11 years old in 1956, is to be accepted, 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 costs.


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