Civil Suit No. 206 of 2013 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.211 OF 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment dated 23.03.2017 passed by the learned Additional District Judge, Nimapara in R.F.A. No.76/202 of 2015/2016 confirming the judgment and decree dated 16.07.2015 and 31.07.2015 passed by the learned Civil Judge, (Junior Division), Nimapara in Civil Suit No.206 of 2013. ---- Bikash Behera & Another -versus- Laxmidhar Parida …. …. Appellants Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ================================================ For Appellant For Respondent - Mr. S.P. Misra, Sr. Advocate - Mr.S.N.Kar, Advocate. CORAM: MR. JUSTICE D.DASH Date of Hearing : 28.11.2023 :: Date of Judgment: 19.12.2023 D.Dash,J. The Appellants, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree passed by the learned Additional District Judge, Nimapara in R.F.A. No.76/202 of 2015/2016.
Legal Reasoning
These Appellants as the Plaintiffs had filed Civil Suit No.206 of 2013 in the Court of Civil Judge (Junior Division), Nimapara. The suit RSA No.211 of 2017 Page 1 of 10 {{ 2 }} was dismissed. Therefore, as the unsuccessful Plaintiffs, they had filed the Appeal under section-96 of the Code which has also been dismissed. The present Second Appeal is thus, at the instance of Appellants who have remained unsuccessful before both the Courts below and as such have been non-suited. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. The Plaintiff No.1 and Plaintiff No.2 are the two brothers. Their parents are Raj Kishore Behera and Panchei Behera. They had filed the suit jointly. The suit is for declaration of their right, title, interest and possession over the suit plot; declaration that the sale-deed dated 21.04.2004 executed in favour of the Defendant is void with the prayer for issuance of a decree of permanent injunction. Plaintiffs stated that the suit land originally belonged to one Gangadhar Sahu, who sold the same to the Plaintiffs under registered sale-deed dated 04.09.2002. The Plaintiffs thus became the owner in possession of the suit plot. It be stated here that the Plaintiff No.1 at the time of purchase was aged 26 years whereas the age of the Plaintiff No.2 then was 12 RSA No.211 of 2017 Page 2 of 10 {{ 3 }} years and his mother represented the Plaintiff No.2 as his guardian during the said purchase. It is next stated that the Defendant practicing fraud had got the sale-deed executed in his favour from Plaintiff No.1, when Plaintiff No.2 was a minor being shown to have been represented by his mother Panchei; when his father Raj Kishore being alive. Next, it is stated that the Plaintiff No.1 had no legal necessity to sale the land to the Defendant being one of their relatives and he in the pretext of obtaining a power of attorney in his name has got the sale deed executed from the Plaintiff No.1. The sale-deed was not written as per the instruction of the Plaintiff No.1, it was not read over and explained to the Plaintiff No.1. Recitals of the sale-deed are all false and the sale-deed has not been acted upon. There was no payment of consideration. The suit property being the personal property of Plaintiff No.2, the mother of the Plaintiffs had no right to sale the same on behalf of the Plaintiff No.2, when the Plaintiff No.2 has not remained the beneficiary of the said transaction. 4. It is also said that the Plaintiff No.2 too was having no legal necessity. The Defendant in the written statement admitted that the suit land originally belonged to Gangadhar, who had transferred the RSA No.211 of 2017 Page 3 of 10 {{ 4 }} same to the Plaintiffs on 04.09.2002 by executing registered sale-deed. It is also admitted that the Plaintiff No.2 being a minor at the time of purchase, he was represented through her mother as his guardian since his father Raj Kishore was a man of indifferent attitude and alcohol addict who was not taking care of the Plaintiffs and their mother was taking their care till Plaintiff No.2 became major. The Defendant further states that the father of the Plaintiff No.2 though alive was unfit to act as guardian of the Plaintiff No.2 for which his mother-Panchei was acting as such till the Plaintiff No.2 would become major. The Plaintiffs have four (4) sisters and at the time of marriage of their elder sister, Bijaylaxmi, the family was not having sufficient funds. Therefore, to meet the marriage expenses, the mother of the Plaintiff being the natural guardian along with the Plaintiff No.1, sold the property to the Defendant for valuable consideration and for the purpose executed registered sale-deed on 21.04.2004. Pursuant to the same, they also delivered possession of the suit land which was the land covered under the said sale-deed to the Defendant who thereafter got the land mutated in his name and has been paying rent to the State. It is further stated that Plaintiff No.2 was very much aware of the said sale, when he attained majority. In view of all these, it is stated that the Plaintiffs have no right, title and RSA No.211 of 2017 Page 4 of 10 {{ 5 }} interest over the suit land and the suit has been filed with an ulterior motive only to see that the Defendant is harassed. 5. The Trial Court on the above rival pleadings has settled six issues in total. Answering the crucial issue with regard to the validity of the sale-deed dated 21.04.2004 (Ext.A=Ext.4-certified copy), upon examination of evidence and their evaluation has found the Plaintiffs to have failed to establish the allegation of fraud and thereafter, ruling upon all other factual controversies against the Plaintiffs, the trial Court has also lastly held the suit to be barred by limitation. 6. The unsuccessful Plaintiffs having carried the Appeal. The First Appellate Court has affirmed all the findings returned by the Trial Court and most importantly, has also held the suit to be barred by limitation. 7. The Appeal has been admitted to answer the following substantial questions of law:- (1) Whether the Courts below are not in right in holding that the suit is barred by limitation? (2) In the suit filed by the Plaintiffs, who are the two brothers, whether the challenge to the sale in respect of the interest of one of the brothers attacked on the ground of lack of permission under section-8(2) of the Hindu Minority and Guardianship Act, 1956 is entertainable when the other brother (Plaintiff No.1) was a major at the RSA No.211 of 2017 Page 5 of 10 {{ 6 }} time of acquisition of the said property wherein the Plaintiff No.2 was represented by her mother and that was also the position when said property was sold to the Defendants? 8.
Legal Reasoning
Mr. S.P. Misra, learned Senior Counsel for the Appellants submitted that the Courts below are not at all right in holding the suit to be barred by limitation. He submitted that admittedly the property had been purchased by the Plaintiff No.1 (major) and also in the name of Plaintiff No.2 (minor) and therefore, the Plaintiff No.2 has definite interest over the said property, it being his personal property. He thus, submitted that when for such sale, no permission as required under sub-section (2) of section 8 of the Hindu Minority and Guardianship Act, 1956 (for short, hereinafter called as HM&G Act), had been taken, the sale in respect of the interest of the minor is bound to be held to be void. In this connection, he submitted that when the Plaintiff No.2 in his plaint has mentioned his age to be 20 years and in his evidence on oath has stated his age to be 22 years, those having not been shaken, the suit ought to have been held to have been instituted within a period of three years from the date of attainment of majority of Plaintiff No.2. He also submitted that the Courts below for the purpose ought RSA No.211 of 2017 Page 6 of 10 {{ 7 }} not to have accepted the age of the Plaintiff No.2 as indicated in the sale-deeds, Ext.1 and (Ext.2= Ext.A). 9. Mr. S.N. Kar, learned Counsel for the Respondent while supporting the concurrent findings of the Courts below contended that the Plaintiff No.2 having not disputed his age as indicated in Ext.1 and (Ext.2=Ext.A) is bound by the same and he is estopped for asserting otherwise. While not disputing the position that the sale of the property of the minor or the property other than the ancestral or joint family property, wherein minor as a definite interest when sold without permission as required under section 8(2) of the H.M.&G Act the sale is voidable at the instance of the minor within three years of his attaining majority, he contended that the present suit having not been filed after expiry of three years of attainment of majority by the Plaintiff No.2, it has rightly been held to be barred by limitation. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary more particularly Ext.1 and (Ext.2=Ext.A), let in by them. 11. In order to address the rival submissions, some important facts are to be kept in mind. RSA No.211 of 2017 Page 7 of 10 {{ 8 }} The Plaintiff No.1 is the elder brother of Plaintiff No.2. As shown in the plaint, the difference of age between the Plaintiff No.2 and Plaintiff No.1 is around 14 years. The Plaintiff No.2 says his age to be 20 years in the year 2013. The land in question has been purchased by the Plaintiff No.1 and Plaintiff No.2 represented by his mother Panchei as the guardian. On 04.09.2002, the age of Plaintiff No.2 has indicated therein was 12 years. After two years, the said land has been sold to the Defendant by Plaintiff No.1 and Plaintiff No.2 again being represented through his mother-Panchei as his guardian. The age of the Plaintiff No.1 has been stated therein to be 28 years which was in the 2002 in the sale-deed indicated as 26 and the age of the Plaintiff No.2 has been shown in the said sale-deed of the year 2004 as 14 years. So, in these documents, the one by which the land was purchased and the other whereunder the land was sold, the age of the Plaintiff No.2 has been shown as 12 and 14 years respectively. Computing therefrom the year of birth of the Plaintiff No.2 relates back around the year 1990. The Plaintiff No.2 thus attained majority in or around the year 2008. The Plaintiff No.1 who is the elder brother of Plaintiff No.2 has joined the Plaintiff No.2 in filing the suit and thus the suit is not at the behest of the Plaintiff No.2 alone. The prayer in the suit is to declare RSA No.211 of 2017 Page 8 of 10 {{ 9 }} the transaction as a whole as void. The grounds of attack to that sale- deed is that it had been obtained by practicing fraud, has not been established. All other grounds of attack such as non-payment of consideration, non-delivery of possession and to have been so obtained in the pretext of getting a power of attorney have not been proved by leading, clear, cogent and acceptable evidence. Such findings being concurrent, nothing is shown that the same suffers from the vice of perversity. The plaint is silent that the sale of the minor’s interest in the property being without permission from the Court of competent jurisdiction as required under section 8 of the HMG Act is void. Moreover, the sale deed by which the property of the Plaintiff No.2 has been sold although reflects that the minor Plaintiff No.2 was represented by his mother-Panchei, nonetheless, the father Rajkishore who was the natural guardian of Plaintiff No.2 is very much a signatory to the same and his signature finds place in all the pages of the document in question. In view of all these aforesaid, the suit in my considered view in the present form to declare the transaction in totality as void, as laid and for the reliefs claimed is not maintainable. Secondly even if we say that the suit is maintainable and the prayer can be moulded to the extent of declaration of the sale of the RSA No.211 of 2017 Page 9 of 10 {{ 10 }} interest of Plaintiff No.2 over the land in question as void, it is found that the suit has been instituted on 28.10.2013, which is after expiry of the period of three years as provided in Article-60 of the Limitation Act from the date of cessation of the of the disability of the Plaintiff No.2 i.e. his attainment of his majority. The Plaintiff No.1, the father and mother of the Plaintiff No.1 as well as Plaintiff No.2, all being the parties to the sale deed, the declaration as to the age of the Plaintiff No.2 therein not only binds them but also binds the Plaintiff No.2 whose age as indicated in the sale deed by which the property was acquired when also runs at par and the Plaintiff No.2 declaring his age, then to be ‘8’ years is per se not acceptable. In view of all the aforesaid, the substantial questions of law thus, are answered against the claim / case of the Plaintiffs as laid for the reliefs claimed. 12.
Decision
In the result, the Appeal stands dismissed. However, there shall be no order as to cost. (D. Dash), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 21-Dec-2023 15:48:33 RSA No.211 of 2017 Page 10 of 10