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Smt. Nisha Singh vs Virendra Sharma on 24 January, 2019

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THE HIGH COURT OF MADHYA PRADESH
CR 456/2018
Smt. Nisha Singh and Anr. Vs. Virendra Sharma Ors.

Gwalior, dtd. 24/01/2019

Shri Sanjeev Jain, counsel for the applicants.

Shri RK Soni, counsel for the respondents No. 1 to 3.

This revision under Section 115 of CPC has been filed against the

order dated 20/06/2018, passed by Fourth Civil Judge, Class- I, Gwalior

in Civil Suit No.236-A/2017, by which the application filed by the

applicants under Order 7 Rule 11 of CPC has been rejected.

The necessary facts for the disposal of the present revision in short

are that the respondents No.1 to 3/plaintiffs have filed a suit for

declaration of title and permanent injunction, alleging that three sale

deeds executed by their mother in respect of disputed property during

their minority on 08/04/1999, are null and void. It is further pleaded in

the plaint that on 20/11/2015 the plaintiffs were carrying on their

agricultural activities and the defendants came to the field and started

abusing the plaintiffs and extended a threat to dispossess them and also

threatened that they would alienate the property to some other persons.

It is the case of the plaintiffs that the land in dispute is the ancestral

property of the plaintiffs and the defendants No.2 to 6. The property has

never been partitioned so far.

The applicants filed an application under Order 7 Rule 11 of CPC on

the ground that the suit is barred by limitation because the sale deeds

were executed by the mother of the plaintiffs on 08/04/1999, whereas
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the suit has been filed for declaration of sale deed as null and void on

15/12/2015. It is further submitted that as the plaintiffs wanted to avoid

the sale deeds, therefore, they are liable to pay the ad valorem Court

fee. The application filed by the plaintiffs has been rejected by the trial

Court.

Being aggrieved by the order of the trial Court, the present revision

has been filed.

It is submitted by the counsel for the applicants that according to

the plaintiffs, they were minors at the time of execution of sale deeds by

their mother, therefore, in view of Article 60 of the Limitation Act, the

suit should have been filed within three years from the date of attaining

the majority. As per the age disclosed by the plaintiffs/respondents No.1

to 3 in the plaint, it is clear that they were aged about 15, 16 and 13

years respectively on 08/04/1999 and thus, it is clear that the suit which

has been filed by the plaintiffs, is hopelessly bared by limitation.

Considered the submission made by counsel for the applicants.

Section 8 of Hindu Minority and Guardianship Act, 1956 reads as

under:-

”8 . Powers of natural guardian.- (1) The natural guardian of
a Hindu minor has power, subject to the provisions of this
section, to do all acts which are necessary or reasonable and
proper for the benefit of the minor or for the realization,
protection or benefit of the minor’s estate; but the guardian can
in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous
permission of the court,- (a) mortgage or charge, or transfer by
sale, gift, exchange or otherwise any part of the immovable
property of the minor or (b) lease any part of such property for
a term exceeding five years or for a term extending more than
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one year beyond the date on which the minor will attain
majority.

(3) Any disposal of immovable property by a natural
guardian, in contravention of subsection (1) or sub-section (2),
is voidable at the instance of the minor or any person claiming
under him.

(4) No court shall grant permission to the natural guardian
to do any of the acts mentioned in sub-section (2) except in
case of necessity or for an evident advantage to the minor.

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall
apply to and in respect of an application for obtaining the
permission of the court under sub-section (2) in all respects as
if it were an application for obtaining the permission of the court
under section 29 of that Act, and in particular-

(a) proceedings in connection with the application shall be
deemed to be proceedings under that Act within the
meaning of section 4A thereof.

(b) the court shall observe the procedure and have the
powers specified in sub-sections (2), (3) and (4) of section
31 of that Act; and

(c) an appeal lie from an order of the court refusing
permission to the natural guardian to do any of the acts
mentioned in sub-section (2) of this section to the court to
which appeals ordinarily lie from the decisions of that
court.

(6) In this section, “Court” means the city civil court or a
district court or a court empowered under section 4A of the
Guardians and Wards Act, 1890 (8 of 1890), within the local
limits of whose jurisdiction the immovable property in respect of
which the application is made is situate, and where the
immovable property is situate within the jurisdiction of more
than one such court, means the court within the local limits of
whose jurisdiction any portion of the property is situate.”

Article 60 of the Indian Limitation Act, 1963 reads as under:-

60. To set aside a transfer
of property made by
the guardian of a ward

(a) By the ward who has Three When the ward attains
attained majority; majority.

years

(b) By the ward’s legal Three
representative
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years

1.When the ward dies When the ward attains
within three years majority.
from the date of
attaining majority;

When the ward dies Three When the ward dies.
before attaining majority
years

Where the natural guardian is empowered to do all the acts which

are necessary or reasonable and proper for the benefit of the minor, but

he can in no case bind the minor by a personal covenant. Thus, it is clear

that the suit can be filed within three years from the date of attaining the

majority.

Section 8(2) of Hindu Minority and Guardianship Act Act, 1956

clarifies that without permission of the Court, the natural guardian shall

not mortgage or charge, or transfer by sale, gift, exchange or otherwise,

any part of the immovable property of the minor and any disposal of

immovable property by a natural guardian, in contravention of sub-

section (1) or sub-section (2) of Section 8, is voidable at the instance of

the minor.

It is well-established principle of law that for deciding the

application under Order 7 Rule 11 of CPC, the Court has to look into the

plaint pleadings only. In the plaint, the plaintiffs have pleaded that on

20/11/2015, they came to know for the first time regarding sale deeds
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dated 08/04/1999 only when, the defendants No.7 to 9 had obstructed

and abused them.

It is true that if the suit is barred by any law, then the plaint is

liable to be rejected. The law of limitation is also a law, covered under

Order 7 Rule 11 of CPC. However, whether the question of limitation is a

pure question of fact or mixed question of fact, would depend on the

facts and circumstances of each case.

Section 17 of the Indian Limitation Act, 1963 reads as under:-

”17. Effect of fraud or mistake – (1) Where, in the case of
any suit or application for which a period of limitation is
prescribed by this Act-

(a)The suit or application is based upon the fraud of the
defendant or respondent or his agent; or

(b)The knowledge of the right or title on which a suit or
application is founded is concealed by the fraud of any such
person as aforesaid; or

(c)The suit or application is for relief from the consequences of a
mistake; or

(d)Where any document necessary to establish the right of the
plaintiff or applicant has been fraudulently concealed from him;

The period of limitation shall not begin to run until the plaintiff or
applicant has discovered the fraud or the mistake or could, with
reasonable diligence, has discovered it, or in the case of
concealed document, until the plaintiff or the applicant first had
the means of producing the concealed document or compelling its
production:

Provided that nothing in this section shall enable any suit to be
instituted or application to be made to recover or enforce any
charge against or set aside any transaction affecting, any
property which-

(i)In the case of fraud, has been purchased for valuable
consideration by a person who was not a party to the fraud
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and did not at the time of the purchase know, or have reason
to believe, that any fraud had been committed, or

(ii)In the case of mistake, has been purchased for valuable
consideration subsequently to the transaction in which the
mistake was made, by a person who did not know, or have
reason to believe, that the mistake had been made, or

(iii)In the case of a concealed document, has been purchased
for valuable consideration by a person who was not a party to
the concealment and, did not at the time of purchase know,
or have reason to believe, that the document had been
concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented
the execution of a decree or order within the period of
limitation, the court may, on the application of the judgment-
creditor made after the expiry of the said period extend the
period for execution of the decree or order:

Provided that such application is made within one year from the
date of the discovery of the fraud or the cessation of force, as
the case may be.”

Thus, where the plaintiffs have pleaded that they were not aware of

the sale deeds executed by their mother during their minority and they

came to know for the first time about the sale deeds only on

20/11/2015, then in the considered opinion of this Court, the question of

limitation becomes a mixed question of fact and law and thus, on plain

reading of the plaint, the suit cannot be held to be barred by limitation.

Whether the suit is barred by limitation or not, can only be decided after

recording evidence. Accordingly, the plea of the applicants that the suit is

barred by limitation and thus, the plaint is liable to be rejected, cannot

be accepted and it is, accordingly, dismissed.

So far as the question of payment of ad valorem Court fee is
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concerned, it is the case of the applicants that in contravention of Section

8 of Hindu Minority and Guardianship Act, 1956, the sale deeds were

executed by the mother of the plaintiffs during their minority. Thus, it is

clear that they were not the signatories to the sale deeds. Furthermore,

in view of Section 8(2) of the Hindu Minority and Guardianship Act, 1956,

the sale deeds by natural guardian cannot be executed in respect of any

part of immovable property of the minor without previous permission of

the Court and any disposal of immovable property by a natural guardian,

in contravention of sub-section (1) or sub-section (2) of Section 8, is

voidable at the instance of the minor.

Although where the document is sought to be challenged being

”voidable” then ad valorem Court fee is required to be paid. But where

the document/transaction is void, then a suit for declaration simpliciter

with fixed Court fee would be maintainable. In the present case, there is

nothing on record to show that the sale deeds in respect of the share of

the minors were executed by their mother after obtaining permission

from the Court.

A document may be voidable because of fraud, etc. but in a given

case, a document may be voidable because of violation of any mandatory

provision of law, without requiring any further proof. Section 8 of the

Hindu Minority and Guardianship Act, 1956 makes it mandatory for the

natural guardian to obtain permission of the Court but by making the

said sale deed as ”voidable document” the statute has given a power to

the minor to waive his objection with regard to the genuineness of the
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document. Therefore, this Court is of the view that where a document is

”voidable” because the same was executed in violation of any mandatory

provision of law, then the plaintiff is not required to pay the ad valorem

Court fee.

Under these circumstances, this Court is of the considered opinion

that the suit for mere declaration with payment of fixed Court fee is

maintainable and it cannot be said that the suit has been filed in order to

avoid the sale deeds executed by the mother of the plaintiffs. On the

contrary, in view of Section 8 of the Minority and Guardianship Act, 1956,

the sale transaction is ”voidable” at the instance of minor. Accordingly,

this Court is of the considered opinion that the trial Court did not commit

any mistake in rejecting the application filed by the applicant under

Order 7 Rule 11 of CPC.

Accordingly, this revision fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge

MKB

MAHENDRA
KUMAR BARIK
2019.01.30
18:14:22 +05’30’

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