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2005(3) JLJ 214
S.L. Jain, J.
Vinay Kant Pandey v. Bhagwandas Kurmi and others
First Appeal No. 429 of 1996 : against the judgment and decree of
Shri B.P. Mishra, I Additional District Judge, Katni, passed in
Civil Suit No. 41-A of 1983; Decided on 7.4.2005.
The plaintiff averred that the suit land described in para 2 of the impugned judgment is the ancestral property of the plaintiff and the same was recorded in the name of his father Gyani in the revenue records. Gyani was the owner and in possession of the suit land. After the death of Gyani, the suit land devolved in favour of his son i.e. the present plaintiff. The present plaintiff is entitled to 3/4th share and his mother is entitled to 1/4th share in the property. At the time of death of Gyani, the age of the present plaintiff was only 4 years. His mother....Madhni Bai sold a portion of the ancestral property to defendants Sukhai Kurmi, Kamal Kumar Jain, Vinay Kant Pandey and Sahara bi. Sahara bi sold her interest in the property to Sevaram. Respondent No. 6 started construction on the suit land. The plaintiff tried to prevent respondent No.6 from constructing the house on the said land but he did not refrain, therefore, the plaintiff filed a suit against his mother and different purchasers. [Para 2
The trial Court framed as many as 15 issues and 2 additional issues and recorded a finding that the plaintiff is having half share in the suit property. His mother Madhni Bai alone could not have sold the suit property and the sale deeds executed by her in favour of different purchasers are not binding on the plaintiff. The suit does not suffer from misjoinder of parties.
The trial Court also found that it has not been proved that the land was sold by defendant No.2 Madhni Bai for legal necessity for the education of the plaintiff and decreed the suit holding that the plaintiff is having 1/2 share in the suit property and he is entitle to joint possession along with the purchasers. [Para 6
Held: Under section 8 of the Hindu Minority and Guardianship Act, the natural guardian of a Hindu minor has power 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 natural guardian without previous permission of the Court cannot transfer by sale any part of the immovable properly of the minor. Any disposal of the immovable property by a natural guardian without the permission of the Court is voidable at the instance of the minor or any person claiming under him. [Para 12
(2) Limitation Act, 1963--S.6--suit challenging alienation by guardian--can be filed by minor within 3 years of attaining majority. AIR 1983 Pun. and Har. 114 relied on. [Para 13
(3) Civil P.C., 1908--O.32 R.1--suit of minor filed through next friend-d`registered after statement of next friend--provision complied with--further order of Court as in case of guardian ad-litem for minor-defendant--not necessary. [Paras 16 & 17
(4) Hindu Law--Karta--only a coparcener can be a Karta--a female cannot be a coparceher hence cannot be a Karta of joint family. AIR 1966 SC 24 followed. [Para 20
(5) Hindu Minority and Guardianship Act, 1956--S.3(1), 3(2) and 3(3) -- mother not a karta of family but acting as guardian of the minor son--cannot alienate minor"s property without permission of the" Court even for the benefit of minor. AIR 1966 SC 24 followed. [Para 20
(6) Civil P.C., 1908--O. 22 Rr. 4 and 10--deceased defendant only a formal party --purchaser from deceased-defendant already on record--he becomes legal representative --suit does not abate. [Paras 26 & 27
(7) Civil P.C., 1908--O.1 R.3 and O.2 R.3--all persons against whom right to relief is alleged to exist, joined as parties-there is 110 misjoinder of parties.
All persons may be joined as defendants against whom any right to relief is alleged to exist, provided that such right arises in respect of the same act or transaction or series of acts or transactions, and the case is one where if separate defendants were made any common question of law or fact would arise.
It is not necessary that all the defendants should be interested in all the reliefs and transactions comprised in the suit or that the liability of all the defendants should be the same. As there is one common question to all the defendants as to whether the alienation made by the guardian to different defendants without permission of the Court is voidable and the question being of sufficient importance, the same is enough for applicability of Rule 3. The combined effect of Order 1 Rule 3 and Order 2 Rule 3 is to enable a plaintiff to join not only the different causes of action against the defendant but also the different causes of action against different defendants where it was necessary to implead all the defendants to secure full and effective relief. The suit cannot be said to have been bad for misjoinder of parties. [Paras 28 & 29
(8) Hindu Succession Act, 1956--Ss. 8 and 10--deceased leaving wife and one son--their shares are equal. [Para 31
(9) Transfer of Property Act, 1882--S.44--suit for partition by purchaser of defined share--he can claim that share should be such that property in his possession may fall to his share--such claim is under principle of equality. [Paras 31 & 32
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dh vuqKk ds fcuk uSlfxZd laj{kd }kjk LFkkoj laifÙk dk dksbZ Hkh O;;u vçkIro; ;k mlds v/khu nkok djus okys fdlh O;fDr dh çsj.kk ij ‘kwU;dj.kh; gSA ¼iSjk 12½ ¼2½ ifjlhek vf/kfu;e] 1963& &/kkjk 6&laj{kd }kjk vU;laØke.k ij vk{ksi djrs gq, okn&vçkIro; ds çkIro; gksus ls 3 o"kZ ds Hkhrj Qkby fd;k tk ldrk gSA , vkb vkj 1983 iatkc vkSj gfj;k.kk 114 voyafcrA ¼iSjk 13½ ¼3½ flfoy çfØ;k lafgrk] 1908& &vk-32 fu-1& &vçkIro; dk okn] oknfe= ds ek/;e ls Qkby fd;k x;k&oknfe= ds dFku ds mijkar jftLVªhÑr fd;k x;k&mica/k dk vuqikyu gqvk&Uk;ky; dk vkxs vkns‘k] tSlk vçkIro; çfroknh ds fy, cknkFkZ laj{kd dh n‘kk esa gksrk gS&vko‘;d ughaA ¼iSjk 16 ,oa 17½ ¼4½ fganw fof/k&drkZ&dsoy lgnkf;d drkZ gks ldrk gS&L=h lgnkf;d ugha gks ldrh blfy, vfoHkDr dqVqac dh dÙkkZ ugha gks ldrhA , vkb vkj 1966 ,l lh 24 vuqlfjrA ¼iSjk 20½ ¼5½ fganw vçkIro;rk vkSj laj{kdRo vf/kfu;e] 1956& &/kkjk 3¼1½] 3¼2½ rFkk 3¼3½&ekrk dqVqac dh drkZ ugha vfirq vçkIro; iq= dh laj{kd&vçkIro; ds Qk;ns ds fy, Hkh U;k;ky; dh vuqKk ds fcuk vçkIro; dh laifÙk dk vU;laØke.k ugha dj ldrhA , vkb vkj 1966 ,l lh 24 vuqlfjrA ¼iSjk 20½ ¼6½ flfoy çfØ;k lafgrk] 1908& &vk- 22 fu- 4 rFkk 10&e`r çfroknh dsoy vkSipkfjd i{kdkj&e`r çfroknh ls Ø; djus okyk igys gh vfHkys[k ij&og fof/kd çfrfuf/k gks tkrk gS&okn mi‘kfer ugha gksrkA ¼iSjk 26 ,oa 27½ ¼7½ flfoy çfØ;k lafgrk] 1908& &vk-1 fu-3 rFkk vk- 2 fu-3&og lHkh O;fDr ftuds fo#) vuqrks"k dk vf/kdkj gksuk vfHkdfFkr gS] i{kdkjksa ds :i esa la;ksftr&i{kdkjksa dk dqla;kstu ugha gSA mu lc O;fDr;ksa dks çfrokfn;ksa ds :i esa la;ksftr fd;k tk ldrk gS ftuds fo#) vuqrks"k dk vf/kdkj gksuk vfHkdfFkr gS] ijarq ;g fd og vf/kdkj ,d gh dk;Z ;k laO;ogkj vFkok dk;ks± ;k laO;ogkjh dh Ja`[kyk ds ckjs esa mn~Hkwr gksrk gks] rFkk ekeyk ,slk gS tgk¡ ;fn i`Fkd~ çfroknh cuk, tkrs rc fof/k ;k rF; dk lkekU; ç‘u mnHkwr gksrkA ;g vko‘;d ugha fd lHkh çfrokfn;ksa dk okn ds lHkh vuqrks"kksa vkSj laO;ogkjksa esa fgr varoZfyr gksuk pkfg, vFkok ;g fd lHkh çfrokfn;ksa dk nkf;Ro ,d gh gksuk pkfg,A D;ksafd lHkh çfrokfn;ksa ds fy, ,d ç‘u lkekU; gS fd D;k laj{kd }kjk U;k;ky; dh vuqKk ds fcuk fofHkUu çfrokfn;ksa dks fd;k x;k vU;laØke.k ‘kwU;dj.kh; gS] rFkk ç‘u i;kZIr egRo dk gksus ds dkj.k] og fu;e 3 ykxw djus ds fy, i;kZIr gSA vkns‘k 1 fu;e 3 rFkk vkns‘k 2 fu;e 3 dk la;qDr çHkko oknh dks çfroknh ds fo#) fofHkUu okngsrqd gh ugha vfirq tgk¡ iw.kZ vkSj çHkkoh vuqrks"k çkIr djus ds fy, lHkh çfrokfn;ksa dks la;ksftr djuk vko‘;d gS ogk¡ fofHkUu okngsrqdksa dks fofHkUu çfrokfn;ksa ds fo#) Hkh la;qDr djus esa leFkZ cukuk gSA ;g ugha dgk tk ldrk fd i{kdkjksa ds dqla;kstu ds dkj.k okn nks"kiw.kZ gSA ¼iSjk 28 ,oa 29½ ¼8½ fganw mÙkjkf/kdkj vf/kfu;e] 1956&/kkjk 8 rFkk 10& &e`rd vius ihNs iRuh vkSj ,d iq= NksM+ x;k&muds va‘k leku gSaA ¼iSjk 31½ ¼9½ laifÙk varj.k vf/kfu;e] 1882& &/kkjk 44& &ifjHkkf"kr va‘k ds Øsrk }kjk foHkktu ds fy, okn&og nkok dj ldrk gS fd va‘k ,slk gks fd mlds dCts dh laifÙk mlds va‘k esa vk,&,slk }kjk lekurk ds fl)kar ds v/khu gSaA ¼iSjk 31 ,oa 32½
1. Being aggrieved by the judgment and decree dated 28.2.1996, passed by 1st Additional District Judge, Katni in Civil Suit No. 41-A/83, the appellant has filed this appeal under section 96 of the Code of Civil Procedure (henceforth, ‘the CPC').
2. The facts in brief, shorn of details and necessary for the disposal of this appeal lie in a narrow compass.
(i) Plaintiff-respondent No. 1 filed a suit against the appellant defendant No. 5 and respondents No. 2 to 8 for declaring the sale deeds executed by respondent No.3 in favour of different defendants as void to the extent of 3/4th share of the suit property and for injunction restraining the construction on the suit land.
(ii) The plaintiff averred that the suit land described in para 2 of the impugned judgment is the ancestral property of the plaintiff and the same was recorded in the name of his father Gyani in the revenue records. Gyani was the owner and in possession of the suit land. After the death of Gyani, the suit land devolved in favour of his son i.e. the present plaintiff. The present plaintiff is entitled to 3/4th share and his mother is entitled to 1/4th share in the property. At the time of death of Gyani, the age of the present plaintiff was only 4 years. His mother, Madhni Bai, after the death of her husband, married to respondent No. 2 Sadri Prasad. When the appellant was aged about 12 years, due to the harassment meted out to him by his mother and step father, he left them and went to Dhaniram. Thereafter Madhni Bai sold a portion of the ancestral property to defendants Sukhai Kurmi, Kamal Kumar Jain, Vinay Kant Pandey and Sahara bi. Sahara bi sold her interest in the property to Sevaram. Respondent No.6 started construction on the suit land. The plaintiff tried to prevent respondent, No. 6 from constructing the house on the said land but he did not refrain, therefore, the plaintiff filed a suit against his mother and different purchasers.
3. Respondent No.3 in her written statement had stated that she was misguided by the purchasers that as the name of the plaintiff is not in the revenue records, she alone can sell the land. It was brought to the knowledge of the purchaser by her that the plaintiff had a share in the suit property.
4. The appellant also contested the suit. He pleaded that he is a bona fide purchaser of the part of the suit land. The plaintiff used to tell him that the land was sold for legal necessity. The money was required by the family for the education of plaintiff. The possession of the portion of the land purchased by him was handed over to him. The defendants also pleaded misjoinder of parties and misjoinder of causes of action.
5. Defendant No. 7 pleaded that the construction which is being carried out by him is not on the suit land. He also pleaded that during the pendency of the suit defendant No.6 died and his LRs 'were not brought on the record, therefore, the suit abates against all the defendants. Defendants No.3, 4 and 6 proceeded as ex parte.
6. The trial Court framed as many as 15 issues and 2 additional issues and recorded a finding that the plaintiff is having half share in the suit property. His mother Madhni Bai alone could not have sold the suit property and the sale deeds executed by her in favour of different purchasers are not binding on the plaintiff. The suit does not suffer from misjoinder of parties.
6. The trial Court also found that it has not been proved that the land was sold by defendant No.2 Madhni Bai for legal necessity for the education of the plaintiff and decreed the suit holding that the plaintiff is having 1/2 share in the suit property and he is entitled to joint possession along with the purchasers.
7. I have heard Shri S.P. Sinha, learned counsel for the appellant and Shri Ashok Lalwani, counsel for the respondent No. 1. None appeared for other respondents.
8. Learned counsel for the appellant contended that (i) the suit is barred by limitation as the same was filed after more than 3 years of the
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