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Shahu Avadesh Kumar And Ors. vs S. Zakaul Husnain And Ors.

High Court Of Judicature at Allahabad|21 April, 1944


1. This is a plaintiffs' appeal and arises out of a suit for the recovery of Rs. 752-12-0 by way of refund of part of the sale-consideration. On 19th February 1930 a lady, Mt. Zakia Khatoon, sold 3 biswas and 6 biswansis of land situate in mahal Khalsa Uda of mauza Adalpur to one Sahu Ram Kumar, the father of the appellants. On 29th July 1932 mutation with regard to this was effected in favour of Sahu Ram Kumar, although it must also be borne in mind that he was the lambardar of the village and must have been in possession of this property even before mutation, though, certainly, in a different capacity. It appears that a portion of this property belonged to a man named Tyeb Husain and he sent a notice to Sahu Ram Kumar conveying him a warning as regards the title of Mt. Zakia Khatoon. Tyeb Husain wrote to say that she had no title to the portion of the property which belonged to him. Notwithstanding the warning, the appellant's father Sahu Ram Kumar, purchased the property on 19th February 1930 as mentioned above and secured mutation. Tyeb Husain brought a suit sometime in 1928 against Mt. Zakia Khatoon for the establishment of his title. He succeeded and obtained possession on 12th December 1930. Shortly after this, that is on 29th July 1932, Sahu Ram Kumar died leaving his five sons who are the appellants before me. On 19th September 1934, in pursuance of the decree obtained by Tyeb Husain, there was a correction in the khewat. The name of Sahu Ram Kumar was expunged and that of Tyeb Husain entered over the share to which he had laid claim and in respect of which he had sent a notice to Sahu Ram Kumar.
2. The present suit was instituted on 28th October 1941, for refund o£ the sale-consideration. The Courts below have dismissed it on the plea of limitation. The only question which, therefore, falls for consideration is whether the suit is barred by limitation. Before proceeding further the ages of the plaintiffs must be mentioned. The first son, Sahu Avdesh Kumar, attained majority on 7th December 1938. The second son, Sahu Ramesh Kumar, became a major on 2nd November 1939. The remaining three sons, Sahu Suresh Kumar, Sahu Kanti Saran and Mahesh Kumar are still minors. The Courts below have applied Article 62, Limitation Act. They have held that even if Article 116 applied the suit would still be barred by limitation. Article 62 provides three years from the date when the money is received. Article 116 provides six years and refers to Article 115. Article 115 gives three years from the date when the contract is broken or, where there are successive breaches, when the breach in respect of which the suit is instituted, accrues or, where the breach is continuing, when it ceases. It appears to me that the Courts below did not properly appreciate the legal position in this case. When Sahu Ram Kumar made the purchase on 19th February 1930 he must be deemed to have made it in his capacity as a manager of the family. The representative character of a father in a joint Hindu family has been defined in the Full Bench case of this Court in Hori Lal v. Munnan Kunwar ('12) 34 All. 549 (F.B.). At p. 560 Banerji J. made the following observation:
What is required is that all persons whose interests are to be afieeted by the suit are sufficiently and substantially represented. In the case of a joint Hindu family, all persons interested are represented in the suit by the manager and are substantially parties to it through the manager.
That was a case of suit. On principle, there is no difference between a suit and another transaction. The presumption must be that Ram Kumar was joint with his sons. He must be deemed to have acted not only on his own behalf but also on behalf of his sons. It may be that the suit qua Ram Kumar might have been barred by limitation, but every member of a joint Hindu family has an independent right, for the purposes of the Limitation Act, to bring a suit. This principle does not detract from the representative character of the father. The principle of law is this. If Ram Kumar had a right to bring a suit and if other members of the family were either living at that time or came into being later on and acquired the right to bring the present suit before the complete extinction of that right, under the Limitation Act, that right will continue to exist upto the date of the majority of the youngest of the sons of Sahu Ram Kumar. This principle has been recognised in Bhup Kuar v. Balbir Sahai ('22) 9 A.I.R. 1922 All. 342. This principle was followed in a later decision of this Court in Sheonandan Prasad v. Tahiran Bibi ('30) 17 A.I.R. 1930 All. 861. In this view of the ease it is not necessary to enter into a detailed discussion of Article 62 or Article 116, Limitation Act. I shall, however, out of deference to the arguments of Mr. Mushtaq Ahmad, the learned Counsel for the respondents, address myself to this question. I have come to the conclusion that even under these two articles the suit is not barred by limitation. Eveli if there was no warranty of title provided by the sale of 19th February 1930, there must be deemed to be an implied warranty: vide Hanuwant Bai v. Chandi Prasad ('29) 16 A.I.R. 1929 All. 293 and Muhammad Siddiq v. Muhammad Nuh ('30) 17 A.I.R. 1980 All. 771. This warranty of title armed the plaintiffs with the right to bring the present suit. This right could not be taken away from them even if Sahu Ram Kumar had knowledge of the defective title of his vendor. Nawal Kishore v. Sarju Ram Sahu ('32) 19 A.I.R. 1932 All. 546. This case goes to the length of holding that, unless there is an express covenant by which the vendee had relinquished his right, which the warranty of title express or implied, gives him, the right remains with him.
3. Now the second question which awaits consideration is if this warranty of title gave Sahu Ram Kumar and gives his sons the right to institute a suit, when did this right accrue and is it a right subsisting or has it been lost by lapse of time? In considering this case it must be clearly understood that Sahu Ram Kumar was the lambardar of Tihe mauza. He was in possession of the entire share including the share in dispute. So long as he was in actual possession of the property, even though his legal right to remain in possession may have been lost either by some decree of a Court or some other judicial process, limitation will not run against him. It was held in Md. Raza Ahmad v. Zahoor Ahmad ('30) 17 A.I.R. 1930 All. 858 by a Bench of this Court:
that the only eases in which lapse of time not only bars the remedy but extinguishes the title of a claimant are those provided for by Section 28, Limitation Act.
In that case the cancellation of a certain sale was sought by the minors three years after the execution of the deed. It was pleaded that the suit was barred by Article 91, Limitation Act. Both the Courts below had, while holding that possession had not been" disturbed, held that the suit was barred by limitation. Niamatullah J. delivering the judgment of the case made the following observation at p. 1418:
If the view taken by the lower appellate Court be correct, many anomalous consequences would follow. For example, if the vendee sues before the expiry of " three years, he has to face the contest regarding the validity of the transfer, an issue which, in many cases, may create difficulty; but if he waits for three years and sues for possession within 12 years, he can recover possession from his adversary, who exhypothesi cannot call in question the validity of the transfer, though he has been in possession all the time that has elapsed since the date of the transfer. In other words, limitation can be successfully pleaded against a defendant whose title is to be taken as extinguished by lapse of time. This view is, however, opposed to a number of decided cases, including the decision of the Privy Council in Sri Kishan Lal v. Mt. Kashmiro ('16) 3 A.I.R. 1916 P.C. 172.
The ratio of the decision appears to be that so long as the person whose rights have been infringed, remains in possession of the property, limitation does not begin to run against him. On the principle enunciated above so long as Sahu Ram Kumar remained in possession of the property whether in his own right or as a lambardar, in which capacity he must be deemed to have been holding as a representative of the entire coparcenary body including himself he need not have brought this suit. Thus, it is when actual dispossession takes place that the real infringement comes into being and it is only then that limitation begins to run. I have, therefore, come to the conclusion that the suit was, viewed from any point of view, clearly within time and the Courts below had fallen into an error in holding that it was barred by limitation. I, therefore, set aside the decrees of the Courts below and send the case back to the Court of first instance through the lower appellate Court for trial according to law. Costs to abide the event. As I have disagreed with the Court below on a preliminary issue the court-fee paid by the appellants shall be refunded. Leave to appeal under the Letters Patent is refused.
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Shahu Avadesh Kumar And Ors. vs S. Zakaul Husnain And Ors.


High Court Of Judicature at Allahabad

21 April, 1944