Holding

The suit was barred by the limitation period prescribed in Article 60 of the Limitation Act, and the purchaser was not a co‑owner, so Article 65 could not be invoked.

Summary

The plaintiff, a son who attained majority in 1974, filed a suit in 1981 to set aside a 1963 sale deed by which his maternal grandfather and his siblings purportedly sold his share in family land. The trial court held the suit barred by Article 60 of the Limitation Act, 1963, but the appellate courts reversed, applying Article 65 on the basis that the purchaser had become a co‑owner. The Supreme Court examined whether the plaintiff’s knowledge of the deed and the date of attaining majority triggered the limitation period, and whether a maternal grandfather under Mohammedan law could be deemed a co‑owner. It held that the plaintiff was deemed to have knowledge at the time of attaining majority, making the three‑year limitation from that date (or the twelve‑year limitation from the deed) applicable, and that the grandfather was not a co‑owner, so Article 65 did not apply. Consequently, the suit was barred by limitation and the trial judge’s decision was restored. The appeal by the purchaser’s son was allowed.

Issues considered

Whether Article 60 of the Limitation Act, 1963 applies to a suit for setting aside a transfer made by a minor’s guardian.
Whether the limitation period is three years from the plaintiff’s attaining majority or twelve years from the execution of the deed.
Whether the plaintiff’s knowledge of the sale deed affects the commencement of the limitation period.
Whether a maternal grandfather under Mohammedan law is a co‑owner of the property, invoking Article 65.
Whether the defence of indefeasible title under Section 27 can be raised for the first time at this stage.

Legislation cited

Limitation Act, 1963s. Article 60, s. Article 65, s. Section 27, s. Section 6, s. Section 8

Subjects

LimitationArticle 60MinorSale deedCo‑ownershipMohammedan lawAdverse possessionVoid transactionArticle 65Section 27

Judgment

A UTHA MOIDU HAJI
v.
KUNINGARATH KUNHABDULLA AND ORS.

NOVEMBER 30, 2006

B [S.B. SINHA AND MARKANDEY KATJU, JJ.]

Limitation Act, 1963:

Schedule-Article 60-Suit for share in property sold, discarding the
C sale-On the ground that on the date of sale deed plaintiff was minor-Held,
Article 60 being applicable, suit was barred by limitation-Mohammedan
Law-Maternal grandfather-ls not a co-owner of a property.

Owner of the suit property died leaving behind his wife and children,
D some of whom were minor. One of his children who attained majority on ·
30.7.1974 filed a suit on 18.3.1981 stating that his mother, defendant no.
2 and other siblings, defendants no. 3 to 8, had no right to sell his share
in the suit property to defendant no. 1, his maternal grand-father, by the
sale deed dated 30.8.1963. He claimed his share in the said property
discarding the sale deed. The trial court held that in view of Article 60 of
E the Schedule to the Limitation Act, 1963, the suit was time barred. The
first appellate court held the suit within limitation. The High Court
dismissed the second appeal, filed by son of defendant no. 1 holding that
defendant no. 1 having become co-owner in the suit property with plaintiff
the provisions of Article 65 of the Schedule to Limitation Act would apply.
F Aggrieved, the son of defendant no. 1 filed the present appeal.

Allowing the appeal, the Court

HELD: 1. The trial Judge had not arrived at any finding that the .. )

plaintiff came to know of the execution of the said deed of sale on or about
G 4.3.1981. Accordingly, the plaintiff would be deemed to have knowledge
about the execution of the sale deed on his attaining majority, as soon as
he pleaded and proved that his case comes within the purview of the
exception contained in the provisions of the Limitation Act. The
applicability of the said limitation is not in issue in the suit. The only question

H 886
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UTHA MOIDU HAJI v. KUNINGARATH KUNHABDULLA 887

which fall for consideration before the trial Judge was "whether the provisions A
of Article 60 of the Schedule appended to the Limitation Act would be attracted
in the facts and circumstances of the case which has been rightly answered
by the trial court. The Single Judge of the High Court also, in fact, held that
the period of limitation would be either 3 years from the date of attaining
majority by the plaintiff or 12 years from the date of execution of the deed of B
sale. (892-D, E)

Prem Singh and Ors. v. Birbal and Ors., (2006) 5 SCC 353, relied on.

2.1. A grandfather from the mother's side, under the Mohammadan
Law, is not a co-owner of a property. Original vendee as a predecessor in C
interest of the said property also thus did not become the co-owner of the
plaintiff. The expression co-owner presupposes ownership. If the
contention of the plaintiff-respondent that the vendee did not acquire any
interest in the property so far as plaintiff is concerned is correct, the
question of his becoming co-owner of the property by reason of the said
deed of sale or otherwise would not arise. When a person enters into D
possession of a land under a void or voidable transaction, his possession
becomes adverse from the date he comes in possession. The concept of co-
owner, therefore, has not been correctly applied in the peculiar facts and
circumstances of this case. It was also not a case where the vendor held
the property in suit in trust for the plaintiff. (893-E-G; 894-B) E

Jagannath Manvari and Ors. v. Mst. Chandni Bibi and Anr., AIR (1921)
Cal. 647, referred to.

2.2. The issue as to whether the appellant or his predecessor-in-
interest became indefeasible owner of the property in the light of Section F
27 of the Limitation Act, was never made an issue. The plaintiff-respondent
cannot raise a contention for the first time before the High Court or before
this Court that the appellant's claim that he had acquired indefeasible title
would be hit by Article 65 of the Limitation Act. [892-C)

3. Accordingly, the judgment of the High Court as also the first G
appellant court are set aside and that of the trial judge is restored. [894-CI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4811 of2000.

From the final Judgment and Order dated 17.6.1998 of the High Court H
888 SUPREMf: COURT REPORTS [2006] SUPP. 9 S.C.R.

A of Kerala at Emakulam in S.A. No. 8/1991.
P. Krishnamurthy and Rajiv Mehta for the Appellant.

T.L.. Vishwanatha Iyer, Gopalakrishnan R., Jai Kishore Singh and
Subramonium Prasad for the Respondents.
B
The Judgment of the Court was delivered by

S.B. SINHA, J. The first defendant in the suit is in appeal before us
being aggrieved by and dissatisfied with the judgment and order dated 17th
june, 1998, passed by a learned Single Judge of the Kerala High Court in
C Second Appeal No.8/1991.

The basic fact of the matter is not in dispute. One Kunhahammed was
the owner of the property in question. He died in 1960 leaving behind the
second defendant as his widow and defendants 3 to 8 as also the plaintiff of
the suit are his children. The land in question was purported to have been
D sold by defendant Nos. 2 to 8, not only on their own behalf but also on behalf
of the plaintiffs, by a registered sale deed dated 30.8.1963, in favour of the
father of the first defendant Moosa Haji. It is not in dispute that Moosa Haji
was father of defendant No. 2 i.e. maternal grandfather of the plaintiff and
defendant Nos. 3 to 8. In the said deed of sale, plaintiff was represented by
E his father - defendant No. 4.

Moosa Haji sold half share in the said purchased property, in favour of
the appellant by a registered sale deed dated 2.5.1970. As noticed hereinbefore
the appellant before us is son of the said Moosa Haji. By reason of a partition
which took place in the family of Moosa Haji, another half share of the
F property in question was allotted in favour of the appellant. The appellant
thus became the full owner thereof. The plaintiff attained majority on 30th
July, 197 4. On or about 18 .3 .1981, he filed a suit in the Court of Subordinate
Judge, Calicut, praying inter for the following reliefs:

"(A) To allot 4 shares exclusively to the plaintiff's possession on
G division of the plaint schedule property into 94 equal shares but by
discarding the sale deed executed by defendants 2, 3 and 4 on 30.8.63
for their on behalf and on behalf of the minor defendants 5 to 8 and
the plaintiff.

(B) To permit the plaintiff to recover the mesne profits of the plaint-
H I
- UTHA MOIDU HAJI v. KUNINGARATH KUNHABDULLA [SINHA, J.] 889

schedule properties for the last 3 years at the rate of Rs.10;000/- per A
annum from the first defendant or other defendants.

(C) To recover the cost of the suit by the plaintiff from the defendants."

One of the issues which arose for consideration before the learned Trial
Judge was as to whether the suit was barred by limitation being issue No. 3 B
thereof.

The learned Trial Judge opined that Article 60 of the Schedule appended
to the Limitation Act, 1963 being applicable, the suit was barred by limitation.
The plaintiff filed an appeal thereagainst. The appellate Court was of the
opinion that the plaintiff could have instituted the suit within a period of 12 C
years from the date of execution of the sale deed i.e. till the year 1986, thus,
and the suit was not barred by limitation. The appellant herein carried the
matter in second appeal before the High Court. By reason of the impugned
judgment, a learned Single Judge of the Kerala High Court although opined
that in terms of Sections 6 & 8 of the Limitation Act, 1963, the suit was
required to be filed by the plaintiff-respondent within 3 years from the date D
of his attaining majority or 12 years from the date of execution of the sale
deed, but dismissed the second appeal of the appellant herein inter alia on
the premise that he as also his predecessor in interest having become co-
owner in the suit property with the plaintiff-respondent, the provisions of
Article 65 of the Limitation Act, 1963 would be applicable. Having held so, E
it was further opined that as the defendant No. I - appellant had failed to
plead and prove 'ouster' as against the plaintiff, the suit was bound to fail.

Mr. Krishnamurthy, learned senior counsel appearing on behalf of the
appellant would submit that the findings of the learned Single Judge are
contrary to the pleadings of the parties inasmuch as the plaintiff-respondent F
in his plaint clearly averred that the interest of the appellant and his predecessor
in interest was adverse to that of the plaintiff and in that view of the matter
the question of the appellant and/or his predecessor in interest having interest
in the welfare of the minor did not arise. It was further submitted that on a
plain reading of the provisions of Sections 6 & 8 of the Limitation Act, 1968 G
vis-a-vis Article 60 of the Schedule thereof, it would be evident that the suit
was barred by Limitation.

Mr. Vishwanatha Iyer, learned senior counsel appearing on behalf of
the plaintiff-respondent on the other hand, would submit that as the sale deed
was void ab initio the plaintiffs continued to be co-owner and in that view H
890 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A of the matter it was incumbent upon the defendants to raise the plea of ouster
in terms of Article 65 of the Limitation Act. Learned counsel would further
contend that, in any event, the plaintiff being a minor, the question of starting
of adverse possession as against him by a co-owner would arise only when
he attains majority and not prior thereto.

B Our attention in this connection has been to the statements made in the
plaint to the effect that the plaintiff could cone to learn about the execution
of the sale deed only on 4.3.1983.

D

"8. Special exceptions.- Nothing in section 6 or in section 7 applies
to suits to enforce rights of pre-emption, or shall be deemed to extend,
for more than three years from the cessation of the disability or the
E·
death of the person affected thereby, the period of limitation for any
suit or application."

Articles 59 & 60 of the Limitation Act read as under:

Description of suit Period of Time from which
F limitation period begins
to run
39. To cancel or set Three years when the facts
aside an instrument or entitling the
decree or for the plaintiff to have the
G rescission of a contract. instrument or decree
cancelled or set aside or
the contract rescinded first
become known to him.
60. To set aside a transfer
of property made by the
H

_,
.... UTHA MOIDU HAJI v. KUNINGARATH KUNHABDULLA [SINHA, J.] 891

guardian of a ward- Three years when the ward attains A
majority.
(a) by the ward who has
attained majority;
(b) by the ward's
legal representative B
(i) When the ward dies Three years When the ward attain
within three years from majority.
the date of attaining
majority,
(ii) When the ward dies Three years When the ward dies. c
before attaining majority

From a bare perusal of the prayer of the plaintiff in the suit it is evident
that he, for all intent and purport, prayed for setting aside the deed of sale.
The learned Trial Judge considered the matter at great length and came to the
following conclusion. D
"The case of the plaintiff that he filed the suit on his getting
information from PW2 his father's brother is not correct. On the basis
of Ext XI(a) entry in Ext. XI,I find that the date of birth of plaintiff
is 30.7.56 and he has attained majority on completion of 18th by 30th
of July, 1974. Admittedly the suit filed by the plaintiff before the E
transferor court was 18th March, 1981. That means after his sleeping
for six years over his right to sue for the subject matter involved in
the suit. As provided under Article 60(a) of the Limitation Act, 1963,
3 years is the period of limitation to file a suit on attainment of
majority in the case of minor. Here the plaintiff in order to escape F
from the clothes of law of limitation as made cock and bull story
against Ext. XI(a) entry in Ext. XI-register and failed the suit in a
carefully careless manner, but after 6 years on his attaining majority
that on 30th August, 1974. Though the plaintiff cannot be blamed for
reporting wrong date of birth in Ext. Al S.S.L.C. Book Ext.XI (a)
entry in Ext.XI Register up roots the foundation of the plaint claims. G
Hence the apple-cart of the plain turned turtle. The Jaw of limitation
as pointed out by the learned counsel appearing for the plaintiff might
be a legal fiction but it has got applicability. Therefore, each provision
laid down in the law of limitation is applicable to legal proceedings
instituted by litigants like plaintiff. I would have respectively H
.....
892 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A appreciated with the arguments advanced by litigants like the learned
counsel for the plaintiff on this aspect of non-application of the law
of limitation provided the suit instituted by the plaintiff was within the
period of limitation under Article 60(a) of the Limitation Act, 1963.

For the reason stated above, the plaint claims are found barred by
B Article 60(a) of the Limitation Act, 1963. Hence, the suit is not
maintainable. Issue Nos. 1 and 3 are found against the plaintiff."

We may notice the issues to whether the appellant herefo or his
predecessor in interest became indefeasible owner of the property in the light
of Section 27 of the Limitation Act, was never made an issue. The plaiiltiff-
C respondent herein cannot not raise a contention for the first time before the
High Court or before us, that the appellant's claim that he had acquired
indefesasible title would be hit by Article 65 of the Limitation Act ..

The learned Trial Judge had not arrived at any finding that the plaintiff
came to know of the execution of the said deed of sale or about 4.3 .198 I.
D If that be so, the plaintiff would be deemed to have knowledge about the
execution of the sale deed on his attaining majority, as soon as he pleaded
any proved that his case comes within the purview of the exception contained
in the provisions of the Limitation Act. As Indicated hereinbefore,. the
applicability of the said limitation is not in issue in the suit. The learned
E Single Judge of the High Court had in fact held that the period of limitation
would be either 3 years from the date of attaining majority by the plaintiff
or 12 years from the date execution of the deed of sale. To the same effect
is the decision of this Court in Prem Singh and Ors. v. Birbal and Ors.,
[2006] 5 SCC 353, wherein this Court compared the provisions of Article 91
of the old Limitation Act vis-a-vis Articles 59 & 60 of the new Limitation
F Act so as to hold:

"17. Once, however, a suit is filed by a plaintiff for cancellation of
a transaction, it would be governed by Article 59. Even if Article 59
is not attracted, the residuary article would be.

G ts,. Article 59 would be attracted when coerdon, undue influence,
misappropriation or fraud which the plaintiff asserts is required to be
proved. Article 59 would apply to the case of such instruments. It
would, therefore, apply where a document is primafacie valid. It
would not apply only to instruments which are presumptively invalid.
[See Unni v. Kunchi Amma, (ILR) 1891 14 Mad. 26 and Sheo Shanker
H
UTHA MOIDU HAJI v. KUNINGARATH KUNHABDULLA [SINHA, J.] 893

Gir v. Ram Shewak Chowdhri, ILR (1897) 24 Cal 77.] A
l 9. It is not in dispute that by reason of Article 59 of the Limitation
Act, the scope has been enlarged from the old Article 91 of the 1908
Act. By reason of Article 59, the provisions contained in Article 91
and l 14 of the 1908 Act had been combined.
B
20. If the plaintiff is in possession of a property, he may file a suit for
declaration that the deed is not binding upon him but if he is not in
possession thereof, even under a void transaction, the right by way
of adverse possession may be claimed. Thus, it is not correct to
contend that the provisions of the Limitation Act would have no
application at all in the event the transaction is held to be void." C
It was further held:

"If a deed was executed by the plaintiff when he was a minor and it
was void, he had two options to file a suit to get the property
purportedly conveyed thereunder. He could either file the suit within D
12 years of the deed or within 3 years of attaining majority. Here, the
plaintiff did not either sue within 12 years of the deed or within 3
years of attaining majority. Therefore, the suit was rightly held to be
barred by limitation by the trial court."

A grandfather from the mother's side, under the Mohammadan Law, is E
not a co-owner of a property. Moosa Haji as a predecessor in interest of the
said property also thus did not become the co-owner of the plaintiff. The
expression co-owner presupposes ownership. If the contention of the plaintiff-
respondent that Moosa Haji did not acquire any interest in the property so far
as plaintiff is concerned is correct, the question of his becoming co-owner of F
the property by reason of the said deed of sale or otherwise would not arise.
When a person enters into possession of a land under a void or voidable
transaction, his possession becomes adverse from the date he comes in
possession. His possession would be exclusive, it will be a repetition to state
or not, in the capacity of a co-owner. The concept of co-owner, therefore, in
our opinion, has not been correctly applied in the peculiar facts and G
circumstances of this case. Reliance has neen placed by Mr. Vishwanatha
Iyer on a decision of the Division Bench of the Calcutta High Court in
Jagannath Marwari and Ors. v. Mst. Chandni Bibi and Anr. AIR (1921) Cal.
647. Therein the parties were co-sharers and a question was raised as to
whether a co-sharer becomes entitled to claim indefeasible title by starting H
894 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A possession of the property adverse to the interest of the plaintiff who was
a minor at that point of time. The Calcutta High Court opined that the
question of adverse possession as against the minor to his knowledge would
arise only from the date of his attaining majority and not prior thereto. We
also agree with Mr. Ramamoorthy that it was also not a case where the vendor
B held the property in suit in trust for the plaintiff. As noticed hereinbefore, we
are not concerned with such a situation in the present case as the only
question which fell for consideration before the learned Trial Judge was that
whether the provisions of Article 60 of the Schedule appended to the Limitation
Act would be attracted in the facts and circumstances of the case.

c cannotInbethesustained.
facts and circumstance of this case, the impugned judgment
Accordingly, the judgment of the High Court as also the
first Appellate Court are set aside and that of the learned Trial Judge is
restored. The appeal is allowed. However, in the facts and circumstances of
the case, there shall be no orders as to costs.

R.P. Appeal allowed.