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TMI Blog2016 (4) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the provision makes it very clear and unequivocally gives a meaning it was to be interpreted in the same sense as the Latin maxim says “dulo lex sed lex”, which means the law is hard but it is law and there cannot be any departure from the words of the law. Hence, in view of our above discussion, the limitation to file the present Suit is governed by Article 60 of the Act and the limitation is 3 years from the date of attaining majority. When once we arrive at a conclusion that Article 60 of the Act applies and the limitation is 3 years, the crucial question is when there are several plaintiffs, what is the reckoning date of limitation? A reading of Section 7 makes it clear that when one of several persons who are jointly entitled to institute a Suit or make an application for the execution of the decree and a discharge can be given without the concurrence of such person, time will run against all of them but when no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge. In the case on hand, the 1st plaintiff was 20 years old, the 2nd defendant was still a minor and the plaintiffs 3, 4 and 5, who are ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. 6. The brief facts which are necessary for proper appreciation of the dispute between the parties in nutshell are as follows: The plaintiff/respondents 1 to 5 filed Reg. Civil Suit No.12 of 1989 against the 1st defendant (appellant herein) and 2nd defendant (respondent No. 6). The Suit was filed seeking the relief of partition and for a declaration that the sale deed dated 20.01.1982 and 28.11.1988 executed by defendant No.2 in favour of defendant No.1 are not binding and to set aside the same and also for recovery of possession of the Suit schedule property and for mesne profits. 7. The brief averments of the plaint are that the plaintiffs 1 and 2 are the real brothers and the 2nd plaintiff, being minor, is under the guardianship of plaintiff No.1. Plaintiff Nos.3 to 5 are the real sisters, whereas defendant No.2 is their mother and the defendant No.1 is the purchaser in whose favour defendant No.2 alleged to have executed the sale deeds dated 20.01.1982 and 28.11.1988 which are sought to be set aside and defendant No.3 is another sister who is married about 12 years back and whose whereabouts are not known to the plaintiffs. The 3rd defendant is later impleaded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d defendant was arrayed as a party to the Suit and in spite of the best efforts by the plaintiffs, the notice could not be served and it was reported that her whereabouts are not known for more than ten years. No written statement was filed on her behalf. 11. The trial Court, after a full-fledged trial, has come to the conclusion that under Section 11 of the Hindu Minority and Guardianship Act, 1956 (for short the 1956 Act ) the sale made by the de facto guardian of the minor is void ab initio and is incapable of subsequent clarification in the absence of evidence to show that the transfer is made for legal necessity. Hence, the sale deeds are not binding on the plaintiffs and accordingly decreed the Suit holding that the plaintiffs are entitled to partition and separate possession of their share. Plaintiffs 1 and 2 are entitled to 7/12th share and plaintiffs 3 to 5 are entitled to 1/24th each and the 2nd defendant is entitled to 7/24th share and plaintiffs are entitled for mesne profits. 12. Assailing the said judgment and decree, the 1st defendant has filed RCA.No.120/1991 on the file of the District Judge, Parbhani. The issue of limitation was raised by the defendants bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to their submissions, to the relevant provisions of the Act and the material placed before us. 16. It is argued on behalf of the appellant/1st defendant that a challenge to the sale deed dated 20.01.1982 is barred by limitation as Article 60 of the Act applies to the facts of the case and the limitation is 3 years. It is contended by him that the Courts below have erroneously applied Article 109 and further Article 109 applies to cases where alienation was made by the father but in the case on hand, alienation was made by the mother. He further submitted that the interpretation of Articles under the Act is against the settled principles of interpretation of statutes and when a provision is provided exclusively which deals with alienation made by father, the Courts below were not right in applying the same to the alienation made by the mother. It is for the first time contended before the Court that Article 110 of the Act applies but the provision will be applied only once the sale deed dated 20.01.1982 is set aside and sought for allowing the appeal. 17. On the other hand, the learned counsel appearing on behalf of the respondents/plaintiffs has urged that Article 60 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ancestral property. Twelve years The date of the dispossession or discontinuance. 110. By a person When the exclusion excluded from a joint family property to enforce a right to share therein. Twelve years becomes known to the plaintiff. 113. Any Suit for which no period of limitation is provided elsewhere in this Schedule. Three Years When the right of sue accrues 9. Before we venture to discuss the applicability of Section 7 of the Act which deals with disability of one of several persons, we have to bestow our attention to the Articles which are applicable to the facts of the case. 20. In the case on hand, there cannot be any dispute about the fact that after the death of the 2nd defendant s husband automatically the 2nd defendant becomes a natural guardian to her children. On this, the finding of the lower appellate court, that as she was not the guardian appointed on the day to alienate the Suit schedule property therefore Article 109 of the Act applies which gives 12 years limitation from the day the alienee takes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three years after attaining majority. 28. The Limitation Act neither confers a right nor an obligation to file a Suit, if no such right exists under the substantive law. It only provides a period of limitation for filing the Suit. 29. Hence, we are of the considered opinion that a quondam minor plaintiff challenging the transfer of an immovable property made by his guardian in contravention of Section 8(1)(2) of the 1956 Act and who seeks possession of property can file the Suit only within the limitation prescribed under Article 60 of the Act and Articles 109, 110 or 113 of the Act are not applicable to the facts of the case. 30. The High Court as well as the Trial Court erred in applying Article 109 of the Act, where Article 109 of the Act clearly speaks about alienation made by father governed by Mitakshara law and further Courts below proceeded in discussing about the long rope given under Article 109 of the Act and comparatively lesser time specified under Article 60 of the Act. It is well settled principle of interpretation that inconvenience and hardship to a person will not be the decisive factors while interpreting the provision. When bare reading of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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