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Muhammad Raza Ahmad v. Zahoor Ahmad
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiffs (Mohammad Raza Ahmad and Mt. Taslimunnissa) brought a suit for partition of a house and for a declaration that a sale deed dated 24 November 1911 is void and ineffectual as against them. The plaintiffs claim entitlement to half of the house: their shares derived from their grandmother Mt. Tazimunnissa (inherited in proportions two-thirds and one-third respectively), their father having predeceased the grandmother. Mt. Irshad Khatun (defendant 3), mother of the plaintiffs, was appointed guardian of their person and property by the District Judge. By a deed dated 24 November 1929 (text elsewhere refers to a deed of sale), Mt. Irshad Khatun purported to sell half of the house to Mt. Kadirunnissa (defendant 2), with Hafizzahur Ahmad (defendant 1) said to be the real vendee. The guardian did not obtain the District Judge's permission for the sale of the minors' property.
The defence of defendants 1 and 2, as relevant on appeal, was that the sale conveyed the plaintiffs' rights and, because the plaintiffs did not have the deed set aside within three years of attaining majority, their claim is barred by limitation. Both lower Courts held the sale to be voidable for lack of District Judge permission; held plaintiff 1's claim barred by limitation but plaintiff 2's claim within time; and accordingly decreed partition of one‑third of one‑half of the house in favour of the plaintiffs. The plaintiffs and defendants 1 and 2 appealed to the High Court: Second Appeal No. 1380 (plaintiffs) and Second Appeal No. 1565 (codefendants).
Legal Issues Presented
- Whether a sale of a minor's property by a certificated guardian made without the prior permission of the District Judge is void or merely voidable at the option of the minor under Section 29 of the Guardians and Wards Act.
- Whether the plaintiffs' failure to have a voidable sale set aside within three years from the date of attaining majority (Article 44, Limitation Act) operates to extinguish their title, or merely bars the remedy of having the sale set aside.
- Whether Article 44, Limitation Act, or Section 28, Limitation Act, applies to a case where the rightful claimant has remained in uninterrupted possession of the property notwithstanding a guardian's voidable transfer.
- Whether the claim for partition is affected by the limitation question concerning the separate relief of cancellation of the sale deed against defendants 1 and 2.
Arguments of the Parties
Plaintiffs' Arguments
- The plaintiffs claimed title to half the house by inheritance through their grandmother and sought partition and a declaration that the 24 November 1911 sale deed is void and ineffectual against them.
- Implicit in the decree the plaintiffs relied on their continuous possession of the property despite the purported sale.
Defendants 1 and 2's Arguments
- They contended that the sale deed executed by the guardian conveyed the plaintiffs' rights.
- They argued that because the plaintiffs did not have the sale set aside within three years of attaining majority, their claim is barred by limitation and is thus conclusive.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sri Kishen v. Kashmiro, A.I.R. 1916 P.C. 172 (Privy Council) | Authority opposing the view that lapse of time in having a voidable transfer set aside extinguishes the title; supports that lapse of limitation bars remedy but does not extinguish title. | The Court cited this decision as one of the decided cases supporting the proposition that limitation (outside Section 28) bars only the remedy and does not extinguish the underlying title of a claimant who has been in possession. |
Court's Reasoning and Analysis
The court proceeded stepwise and grounded its conclusions in statutory provisions and decided authorities as set out below.
- Nature of the guardian's sale:
The Court accepted that Mt. Irshad Khatun, though appointed as certificated guardian, lacked authority to transfer the plaintiffs' half share without the District Judge's prior permission. Under Section 29 of the Guardians and Wards Act, transfers by a certificated guardian made without prior permission are voidable at the option of the minor after attaining majority. Therefore the sale deed is voidable (not absolutely void) and cannot be treated as having automatically and conclusively divested title from the plaintiffs.
- Effect of plaintiffs' possession:
Both lower Courts found the plaintiffs were in uninterrupted possession of the house despite the sale. The possession was held to be in their own right — continued and peaceful — and there was no indication it was derivative or held under leave or licence of the defendants.
- Proper scope of Article 44, Limitation Act:
The District Judge held that Article 44 barred plaintiff 1 because he failed to have the voidable sale set aside within three years of attaining majority. The High Court rejected that approach as an erroneous reading of Article 44. The Court explained that Article 44 addresses cases in which a transfer has been made by a guardian and implies the property has changed hands (i.e., where possession has passed). It does not apply to cases where the claimant has remained in actual possession despite the transfer — for example where possession did not pass to the transferee or possession ought to have been delivered but was not.
- Distinction between barring remedy and extinguishing title; role of Section 28:
The Court stressed the settled principle (supported by decided cases including Sri Kishen v. Kashmiro) that lapse of limitation, except where Section 28 of the Limitation Act applies, bars only the remedy and does not extinguish the claimant's title. Section 28 is confined to situations where a suit for possession, if brought, would be barred by limitation; it does not apply to a person in actual uninterrupted possession who has had no occasion to sue for recovery. Thus failure to institute a suit to set aside a voidable instrument within the period does not extinguish the underlying title where the claimant remained in possession.
- Consequences for partition relief and cancellation relief:
The plaintiffs sought both partition (against co-sharers) and cancellation of the sale deed (directed against defendants 1 and 2). The Court observed that the plaintiffs, being in possession, could claim partition against their co-sharers and that their possessory title cannot be questioned by those co-sharers except by the true owner. Even if the remedy of cancellation against defendants 1 and 2 may be barred by Article 44 in so far as it operates to preclude that particular relief after the time limit, that does not affect the plaintiffs' principal remedy of partition to obtain separate possession. In short, Article 44 (if held applicable) at most bars the remedy of cancellation as against defendants 1 and 2 but does not affect the plaintiffs' subsisting title or their right to partition against co-sharers who are in joint possession.
Holding and Implications
Holding: The High Court allowed Second Appeal No. 1380 (plaintiffs) and dismissed Second Appeal No. 1565 (codefendants). The plaintiffs' suit was decreed with costs in all Courts.
Implications and direct effects:
- The sale deed executed by the certificated guardian without prior permission of the District Judge is voidable at the option of the plaintiffs but, because the plaintiffs remained in uninterrupted possession, their title subsists and is not extinguished by mere lapse of the period provided by Article 44.
- Article 44, Limitation Act, does not apply to cases where the claimant has remained in actual possession and therefore cannot operate to extinguish title; at most it may bar the remedy of cancelling the voidable deed as against the transferees after the prescribed period. Section 28, Limitation Act, which can extinguish title, was held not applicable here.
- Because the plaintiffs' possessory title subsists, they are entitled to separate possession (partition) of their share notwithstanding any limitation defence that might bar the specific remedy of cancellation of the sale as against defendants 1 and 2.
- No new precedent beyond the application of established principles was set; the decision applies settled rules that lapse of limitation normally bars only remedies (absent Section 28 situations) and confirms the voidable character of a guardian's transfer without statutory permission.
1. This, appeal arises out of a suit brought by the plaintiffs-respondents for partition of a house and for a declaration that a sale deed, dated 24th November 1911, is void and ineffectual as against the plaintiffs. They claim to be entitled to half of the house the other half being the property of one Sheikh Fazal Ahmad, who is now represented by defendants other than defendants 1 to 3. The half share which is claimed by the plaintiffs, Mohammad Raza Ahmad and Mt. Taslimunnissa, originally belonged to their grandmother, Mt. Tazimunnissa, on whose death it was inherited by them in the proportion of two-thirds and one-third, respectively, their father having predeceased Mt. Tazimunnisa. Mt. Irshad Khatun, defendant 3, the mother of the plaintiffs, was appointed guardian of their person and property by the District Judge.
2. By a deed, dated 24th November 1929, Mt. Irshad Khatun purported to sell half of the house to Mt. Kadirunnissa, defendant 2, wife of Hafizzahur Ahmad, defendant 1. The latter is said to be the real vendee. The permission of the District Judge was not obtained by Mt. Irshad Khatun, the guardian defendant 3, for sale of the property of her minor wards.
3. The defence of the first two defendants, so far as it is material for the purposes of this appeal, is that the aforesaid sale effectively conveyed the rights of the plaintiffs and that the same not having been Bet aside within three years from the time the plaintiffs attained majority, is conclusive by lapse of limitation. Both the lower Courts have held that the sale, not being made with the permission of the District Judge, was voidable, that the claim of plaintiff 1 was barred by limitation but that of plaintiff 2 was within time. Accordingly a decree for partition of one-third of one-half of the house was passed. The plaintiffs and defendants 1 and 2 have appealed to this Court. Second Appeal No. 1380 of 1928 is the plaintiffs' appeal and Second Appeal No. 1565 is that of the codefendants.
4. It has been found by the lower appellate Court that the sale has not been proved to be for the benefit of the minors. It is not therefore necessary to consider whether a certificated guardian can transfer the property of the minor ward for his or her benefit in the absence of the permission of the District Judge.
5. It cannot be disputed that Mt. Irshad Khatun had no authority to transfer the half of the house belonging to the plaintiffs. If she had not been appointed guardian under the Guardian and Wards Act, her action in making the alienation would have been that of a Fazuli and the sale would have been void, a mother not being a guardian of the property of her minor son under the Mahomedan Law. The character of the alienation made by the mother where she is a certificated guardian is somewhat different. In that case an alienation made by her is on the same footing as one made by any other guardian appointed under the Guardians and Wards Act, Section 29 of which declares transfers made by the certificated guardian without previously obtaining the permission of the District Judge, to be voidable at the option of the minor, exercisable after he or she attains majority. The Courts below have therefore rightly held the sale deed executed by the plaintiffs' mother to be voidable. The result is that it cannot effectively bible to the transferee.
6. The learned District Judge has found that Mt. Taslimunnisa, plaintiff 2, attained majority on 1st July 1923. The present suit was brought on 24th November 1923. It follows that no question of limitation can arise in respect of her claim.
7. It has been found by both the lower Courts that the plaintiffs have been in possession of the house in spite of the sale in favour of defendants 1 and 2. There is nothing to suggest that their possession has been in any way of a derivative character, with the leave and license of the defendants. It must be taken to be in their own right, continued and peaceful. The learned District Judge thinks that plaintiff is possession does not affect the question of limitation in a case like this, as he was bound to have had the voidable sale set aside within three years, as provided by Art 44, Lim. Act, and that his inaction in that respect is fatal to his title. This view is based on an erroneous reading of the article referred to and takes no account of certain weighty considerations arising from other provisions of the Act. Cases contemplated by Article 44 are those in which transfer of property" has been made by a guardian. It implies that the property has changed hands and does not apply to cases where the erstwhile minor is in possession of his property in spite of deeds of transfer executed by the guardian under which either possession does not pass from transferor or transferee e.g., deed of simple mortgage, or possession has not been parted with, though It ought to have been delivered. If the view of the lower Courts be correct, it should follow as a corollary that the vendees could have successfully sued the plaintiffs in ejectment. It is founded on the erroneous assumption that the failure of the rightful claimant to have a voidable deed set aside within the time limited by law has the effect of extinguishing his title, though he might have continued in possession. Ordinarily, unless a deed is fictitious, the transferee is in possession; and if he is not, he will have to sue for it. 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 ex hypothesi 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 Kishen v. Kashmiro A.I.R. 1916 P.C. 172. The only cases in which lapse of time not only bars the remedy but extinguishes the title of a claimant are those provided for by Section 28, Lim. Act, which is confined to persons, plaintiffs or defendants, whose suit for possession, if brought, would be barred by limitation. It has been held in numerous cases that Section 28, Lim. Act, does not apply to persons who, being in actual possession which has never been disturbed, have had no occasion to sue for recovery of it, as a party in possession cannot be prejudicially affected by the law of limitation: see cases noted in support of this proposition in Rustomji's Law of Limitation, notes under Section 28.
8. In this case the plaintiffs who are in possession sue for partition and for Voidance of the deed. So far as the first relief is concerned, the real parties to the case are those to whom the share other than that of the plaintiffs belongs. As against them the plaintiffs' title cannot be questioned. Except the true owner no one else can dispute the title of the person in possession whose possessory title will prevail against everybody else. Therefore, if the case were one for partition only, no objection by those in possession of the other half could be made to the plaintiffs' share being separated. They have however also sued for setting aside the sale deed, a relief which is directed against defendants 1 and 2 only. No question of misjoinder of defendants and causes of action was raised in the Courts below or in this Court, and we need not pause to consider it.
9. The position is somewhat curious. Plaintiff 1 could have sued his cosharers for partition without impleading defendants 1 and 2, and if they had done so, their claim, in view of their possession, could not have been defeated. The result of the view taken by the Courts below is that his suit for partition against his cosharers has to be dismissed, because their claim to have the sale set aside as against defendants 1 and 2, a claim in which the cosharers are not interested, is barred by limitation, with the consequence that the plaintiff must remain in joint possession till possibly the other cosharers sue for partition or defendants 1 and 2 successfully sue the plaintiff for possession on the basis of the sale deed in their favour.
10. This anomaly is however only seeming, but not real, being due to the erroneous assumption made by the lower Courts that failure to institute a suit to have a voidable instrument set aside has the effect of extinguishing the title of the person at whose option it is voidable. Section 28, Lim. Act, not being applicable to case, plaintiff 1's title subsists; and the only extent to which his inaction imposes any disability on him is that he cannot sue, after the lapse of the period limited by Article 44, Lim. Act, for having the sale sat aside. The rule is now well settled that lapse of limitation, apart from Section 28, Lim. Act, bars only the remedy and does not extinguish the title of the claimant. This being so, the subsisting right of plaintiff 1 must prevail and entitle him to separate possession of what is now in joint possession of himself and other cosharers.
11. For these reasons we hold that Article 44 Lim. Act, does not apply to the case; and that, if it does, the plaintiff 1's remedy of partition as against his cosharers now in joint possession with him is not affected by Article 44, which at the most merely bars as against defendants 1 and 2 the relief of having the sale deed cancelled, a relief which is not necessary for the main purpose of the suit, viz., partition. The result is that we allow Second Appeal No. 1380 and dismiss Second Appeal No. 1565, and decree the plaintiffs' suit with costs in all Courts.
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