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2006 Supreme(Cal) 461
High Court Of Calcutta
Subhro Kamal Mukherjee
BINAPANI DEY - Appellant
Versus
SANKAR CHOWDHURY - Respondent
C. O. 915 Of 2005
Decided On : 07/28/2006
CHAITALI CHATTERJEE, DEB RANJAN BASU MALLICK, JIBAN RATAN CHATTERJI, SHYAMA PRASANNA ROY CHOUDHURY
A suit by a minor to set aside a transfer of property made by their guardian without legal necessity is subject to a limitation period of three years from the date of attaining majority, as per Article 60 of the Limitation Act, 1963.
Headnote:
LIMITATION ACT, 1963 - ARTICLE 60 - SUIT BY MINOR TO SET ASIDE TRANSFER OF PROPERTY - LIMITATION PERIOD - THREE YEARS FROM DATE OF ATTAINING MAJORITY - SUIT FILED AFTER 25 YEARS - BARRED BY LIMITATION.
Fact of the Case:
Suit by four sons of Hiralal Chowdhury to set aside deed of conveyance executed by their mother and natural guardian during their minority, alleging lack of legal necessity. Trial court and lower appellate court granted temporary injunction restraining parties from altering status quo of suit property.
Finding of the Court:
Suit barred by limitation under Article 60 of the Limitation Act, 1963, as it was filed more than three years after the youngest son attained majority. Bona fide buyer purchased property by registered deed of sale and was in possession for over 25 years.
Issues: Whether the suit was barred by limitation.
Ratio Decidendi: The law is settled that if a natural guardian transfers the share of a minor without legal necessity or without taking leave of the Court, such transaction is not void ab initio but merely voidable. Minors can avoid such deed only by filing a suit within three years after attaining majority. Injunction is an equitable remedy granted at the discretion of the court, and the petitioner must make out a prima facie case, show that the balance of convenience is in their favor, and demonstrate that they will suffer irreparable loss if an injunction is not granted.
Final Decision: Revisional application allowed. Orders of trial court and lower appellate court granting temporary injunction set aside. Application for temporary injunction filed by plaintiffs rejected.
( 1 ) THIS is a revisional application under Article 227 of the Constitution of india against judgment and order dated february 28,2005 passed by the learned civil Judge (Senior Division) at Sealdah, District: South 24-Parganas in miscellaneous Appeal No. 66 of 2004 affirming Order No. 18 dated October 4. 2004 passed by the learned Civil Judge (Junior Division), First Court at Sealdah, district: South 24-Parganas in Title Suit No. 101 of 2004.
( 2 ) BOTH the Courts below passed temporary order of injunction directing the parties to maintain status quo in relation to the suit property till the disposal of the suit.
( 3 ) THE facts relevant for the disposal of this revisional application are as under: - (a) Admittedly, the suit property belonged to Hussain Parsee alias chowdhury. Hussain Parsee died intestate on December 15, 1950 leaving behind him his son, Hiralal Chowdhury, his widow, Somaria Chowdhury and his daughter Kamala Chowdhury. On his death his said heirs and legal representatives inherited the suit property. (b) The said Hiralal Chowdhury died intestate on November 30, 1975 leaving behind him his four sons, one daughter and his widow, mangala Chowdhury. (c) The said Somaria Chowdhury, the said Kamala Chowdhury and the said Mangala Chowdhury executed a deed of sale dated november 26,1979 in favour of Binapani Dey, the defendant No. 1 in this suit, conveying the suit property to her Mangala Chowdhury for self and as the mother and natural guardian of the minor four sons and the minor daughter of Hiralal Chowdhury executed the said deed of sale. (d) The said vendors delivered the possession of the suit property in favour of Binapani Dey. Binapani Dey, after getting possession of the suit property, collected rents from the tenants, paid Municipal rates and taxes and even instituted suit against tenant and obtained decree in such suit. (e) The four minor sons of Hiralal Chowdhury attained majority between 1986 and 1993. The eldest son, Sankar, attained majority in 1986, second son, Kartick, attained majority in 1998 and third son, biswanath, attained majority in 1990 and the youngest son, Madan, attained majority in 1993. (f) The said sons of Hiralal Chowdhury instituted the present suit, inter alia, for declaration that the deed of conveyance executed in favour of Binapani Dey was invalid and not binding upon the said plaintiff's and the same was liable to be cancelled; for, further, declaration of their right, title and interest in the suit property; mandatory injunction directing the principal defendants to deliver peaceful possession of the suit property in favour of the said plaintiff's. In the plaint it was alleged that in sometime in
December, 2003 the said plaintiff's came to know that they were the owners of the property and, immediately, thereafter, they went to the suit property and found that it was under the control of defendant No. 2, Jatin dey, who has been the husband of the said Binapani Dey. (g) In the said suit the said Binapani and her husband, Jatin, have been impleaded as principal defendants while Mangala Chowdhury and shibani Chowdhury, that is, the widow and the daughter of Hiralal chowdhury respectively have been impleaded as proforma defendants. (h) In connection with the said suit the said plaintiffs filed an application for temporary injunction. The application for injunction was contested by the principal defendants. (i) The learned Trial Judge by the Order No. 18 dated October 4,2004 disposed of the application for temporary injunction and directed the parties to maintain status quo till the disposal of the suit. The learned judge observed that in the suit the question of validity and genuineness of the said deed executed in favour of Binapani Dey has been an issue and as the deed was executed by illiterate ladies putting their left thumb impressions on the said deed, such issue has to be decided in details at the time of trial. (j) The principal defendants pref
