JUDGMENT U.S. Tripathi, J.
1. This Second Appeal has been filed against judgment and decree dated 25-9-1998 in Civil Appeal No. 523 of 1986 allowing the appeal and dismissing the suit of appellants,
2. The present appellants filed the suit No. 109 of 1985 for the relief of declaration that the sale deed executed by Nava Ratan Lal regarding the disputed house No. 473-A, Shahganj, Allahabad in favour of Ghasi Ram Chaurasiya, respondent No. 3 and subsequent sale deeds executed by Ghasi Ram in favour of respondents No. 1 and 2 are void and not binding upon the appellants.
3. In brief, the appellants pleaded in the plaint that the house in dispute was acquired by Sri Parmeshwar Dayal grand father of Nava Ratan Lal and it was ancestral property in the hands of Nava Ratan Lal, who was defendant No. 1 to suit, but died during the pendency of the suit in the year 1997 and therefore was not impleaded as party in this, appeal. The appellants are widow, sons and daughters of Nava Ratan Lal. It was further alleged in the plaint that the sale deed was obtained by fraud from Nava Ratan Lal. It was obtained without consideration. That in fact there was only loan, transaction, but the sale deed was go executed, by fraud. It was further pleaded that Nava Ratan Lal had no legal necessity to execute the sale deed, The appellants are co-sharers in the house in dispute and have acquired right of ownership of the same by birth, therefore the sale deed executed by Nava Ratan Lal was not binding on the appellants. That subsequent sale deed executed, by respondent No. 3 in favour of respondents No. 1 and 2 was without any authority hence void.
4. The respondents contested the suit. They pleaded that the sale deed was executed by Nava Ratan Lal out of his own free-will. That he was in legal necessity. He was in need of money to meet his daily needs, as he had no source of income. That thereafter the house was given to Nava Ratan Lal by Ghasi Ram on rent of Rs. 126/-per month. An agreement was also executed by him. It was further pleaded that respondents No. 1 and 2 are bona fide purchasers from respondent No. 3 for value without notice. That the suit was barred by time and therefore, the suit is liable to be dismissed.
5. In this case, the defendants/respondents took several adjournments. Ultimately the suit was decreed by the trial Court on the basis of the evidence of the appellants under Order 17, Rule 3 CPC. The respondents, therefore, moved application for restoration as well as preferred the First Appeal No. 533 of 1986 against the decree. The restoration application of the respondents was rejected. Against that order, the respondents preferred First Appeal No. 307 of 1987.
6. Appeal No. 533 of 1986 has been allowed by the lower Appellate Court by judgment and decree dated 25-9-1998. The First Appeal No. 307 of 1987 was dismissed as being infructuous.
7. Aggrieved by the judgment and decree of lower Court the appellants have preferred this Second Appeal.
8. This Second Appeal was admitted on the following substantial questions of law:--
1. Whether in the facts and circumstances of the case (he sale deed in favour of Ghasi Ram being declared void was that finding not binding on the transferees also?
2. Whether in the facts and circumstances of the case when the suit was for declaration of the sale deed by defendant No. 1 in favour of defendant No. 2 void would the provisions of the Limitation Act be applicable and the plaintiffs could be nonsuited on this ground alone?
9. 1 have heard Sri B. D. Mandhyan, learned counsel for the appellants and Sri S. K. Verma assisted by Sri. Siddharth for respondents No. 1 and 2 and perused the entire record. None has appeared for respondent No. 3 despite of sufficient service.
10. The learned counsel for the appellants contended that the trial Court held that sale deed in favour of Ghasi Ram was void and Ghasi Ram had not filed appeal before lower Appellate Court and therefore said finding become final and is also binding on respondents No. 1 and 2.
11. It is true that though the trial Court held that sale deed executed by Nava Ratan Lal in favour of Ghasi Ram was void and that Ghasi Ram did not file any appeal. The respondents No. 1 and 2 were aggrieved persons as the said finding of the trial Court affected their title adversely and they would be benefited from the change in the judgment. Therefore, they had right to challenge above findings by way of appeal having appealable interest and the lower Appellate Court had jurisdiction to reverse the said finding and decree of the trial Court. Vide State of U.P. v. Smt. Ramsri, AIR 1976 All 121.
12. In this case Nava Ratan Lal admittedly was alive at the time when the suit was filed and he was arrayed as defendant No. 1 in the suit. The suit was initially filed on 3-7-1982 in the Court of Munsif being suit No. 546 of 1982 but the plaint was returned on 22-2-1985 on the basis of finding that the Court has no pecuniary jurisdiction to decide the suit. Thereafter, the plaint was presented in the Court of Civil Judge on 22-3-1985 impleading Nava Ratan Lal as defendant No. 1. He died in the year 1997. But he had not challenged in his lifetime the validity of the sale deed on the ground of incompetency for want of sound mind, absence of consideration and that there was only loan transaction and sale deed was obtained by fraud. The plea that the sale deed was obtained by fraud and no consideration was paid, was not available to the plaintiffs appellants. Accordingly, the arguments advanced on these points are rejected only on the ground that these pleas are not open to present appellants and the evidence on these points as well as findings of the Courts below are not required to be looked into. It was for Nava Ratan Lal only to take the plea that the deed was obtained by fraud and that no consideration was given to him. Nava Ratan Lal neither filed written statement nor entered into witness-box to say that deed was obtained by fraud and no consideration was paid to him. Therefore, all the arguments in this Regard are repelled.
13. The fact that the house in dispute No. 473-A. Shahganj, Allahabad was the ancestral property of Nava Ratan Lal was not disputed as there was no evidence, of the respondents on this point. However, the questions are whether Nava Ratan Lal had right to transfer this entire house, whether the appellants have birth right in the house in dispute, and whether the suit is barred by time.
14. Smt. Dayawati, appellant is wife of Nava Ratan Lal and appellants No. 3, 5 and 6 are daughters of Nava Ratan Lal. They have no birth right in the house in suit, as they are not coparceners. Nothing has been shown that they had any share in the house in suit during the lifetime of Nava Ratan Lal. Their allegations that they are owners of the house cannot be accepted and there is absolutely no right to them to file suit, as they have no share in the house in dispute.
15. Virendra Kumar and Subhash Chandra appellants No. 2 and 4 are sons of Nava Ratan Lal. No doubt, they might have birth right in the house in dispute, as the same was the ancestral property. But the question is whether they were born at the time when the sale deed was executed by Nava Ratan Lal. A careful scrutiny of the plaint shows that there was no plea that they were born prior to the execution of the sale dated 30-7-1969. No doubt in the plaint their age was mentioned as 22 years and 15 years respectively, but these are only approximate ages and it has been mentioned that Virendra Kumar was aged about 22 years and Subhash Chandra was aged about 15 years. It is for the plaintiffs to prove that they have rights in the house in dispute but neither there is pleading, nor any document has been filed to show, as to when they were born. No documentary evidence has been produced regarding their ages and dates of birth. In the circumstances, it cannot be accepted that Virendra Kumar and Subhash Chandra acquired right in the house in dispute before the execution of the sale deed by Nava Ratan Lal and have right to file the suit for declaration that sale deed was void for want of competency of the transferor.
16. The next question is regarding limitation. The contention of the learned counsel for the appellants was that since the sale deed executed by Nava Ratan Lal in favour of Ghasi Ram was void ab initio there was no limitation for filing suit for declaration of a void sale deed. As held above pleas that sale deed was obtained by fraud, undue influence and without consideration is not open to the present appellants and Nava Ratan Lal had not raised these pleas. A sale deed obtained by fraud undue influence and inadequate consideration is voidable. It was also pleaded that sale deed was without legal necessity. The contents of sale deed dated 30-7-1969 show that Nava Ratan Lal executed it for self and for his minor sons for legal necessity. Assuming that there was no legal necessity, the sale deed can be termed as voidable as held by the Apex Court in the case of Raghubahchmani Prasad Narain Singh v. Ambica Prasad Singh, AIR 1971 SC 776 that in any event an alienation by the Manager of the joint Hindu family even without legal necessity is avoidable and not void. Thus in any event the suit for declaration should have been filed within three years from the date of accrual of cause of action (vide Sections 31 and 38 Specific Relief Act read with Articles 59 and 58 of the Schedule I of Limitation Act.)
17. The sale deed was executed on 30-7-1969 and the suit was filed on 30-7-1982. The explanation submitted is that the appellants came to know about the sale deed on 8-4-1982 when the respondents No. 1 and 2 got an ex parte decree of ejectment against Nava Ratan Lal. However, this plea of the appellants cannot be accepted. The bare perusal of the plaint shows that the appellants and defendant No. 1 Nava Ratan Lal were living in the same house No. 473-A. Shahganj. Allahabad. There was one joint family. It cannot be accepted that the wife could not know regarding the transaction of sale deed executed by husband. The plea that the appellants came to know regarding the sale deed on 8-4-1982 when the suit for ejectment was decreed ex parte are false on the face of it. They are also party in the suit for ejectment which was decreed ex parte. Therefore, there is no cogent evidence to show as to when the plaintiffs appellant came to know regarding the sale deed. From the circumstances it is to be inferred that they were knowing regarding the sale deed on the date it was executed. If it is so the suit is clearly barred by time.
18. It is true that appellant No. 4 was minor oh the date when the suit was filed, but no claim for exemption for limitation has been sought in the plaint on this ground. On the other hand, the cause of action shown in the plaint was that the limitation has been claimed from the date of knowledge, which is alleged to be 8-4-1982. Therefore, for this reason, the suit cannot be said to be within time.
19. Moreover, plaint of initial suit No. 586 of 1982 was actually returned on 22-2-1985 and the suit No. 109 of 1985, giving rise to this appeal was filed on 22-3-1985. There is no explanation of the above delay of about one month (from 23-2-1985 to 22-3-1985).
20. Considering the circumstances, the sale deed in favour of Ghasi Ram cannot be declared as void. In any case the contesting respondents No. 1 and 2 were subsequent purchasers from Ghasi Ram. They are bona fide purchasers for value and there is no evidence that they had knowledge of any defect in title of Ghasi Ram. Therefore, they are protected by provisions of Section 53A of Transfer of Property Act and the sale deed in their favour cannot be declared to be void. The point No. 1 is decided accordingly.
21. Regarding point No. 2 it is held that the suit is barred by time and accordingly the appellants are non-suited on this ground.
22. No other question arises for decision in this appeal.
23. The appeal fails and is dismissed. However, there is no order as to costs.