Karthiyayani Amma vs Sudasundaram and others

K.P. Balanarayana Marar, J.—The second appeal arises from a suit for partition after setting aside a court auction sale. Plaintiff''s father Vasudeva Menon had undivided share over nine items of properties. The properties originally belonged to his tavazhi and were set apart to Vasudeva Menon and his mother Ummattu Amma in a partition of the year 1965. Vasudeva'' Menon pre-deceased his mother. His rights are alleged to have devolved on his wife, the 8th defendant and children, viz. plaintiff and defendants 9 to 13. The mother of Vasudeva Menon was also one of his legal representatives, A suit was filed against the legal representatives of Vasudeva Menon as O. S. 203 of 1967 before Munsiff''s Court, Ponnani seeking recovery of money due from Vasudeva Menon. That suit was decreed and in execution, plaint schedule properties excluding item No. 6 were sold and purchased by one Gopalan Nambiar (Dl7) in court auction. It appears that Ummattu Amma, the other co-sharer had gifted her rights in favour of 14th defendant. Ext. Bl is the registered gift deed executed on 15. 3. 1967. After D17 purchased the rights of Vasudeva Menon in court auction he executed a release in favour of the 14th defendant in respect of the properties except item No 3 which had already been sold by him to others. Fourteenth defendant was thus keeping possession of plaint schedule items excluding'' item No. 3 and that property was possessed by defendants 15 and 16. After plaintiff attained majority he filed the present suit O. S. 92 of 1980 before Munsiff Magistrate''s Court, Pattambi seeking partition of his 1/14th share over the plaint schedule items after setting aside the court sale in favour of 17th defendant. Defendants 1 to 8, 16 and 17 did not file any written statement. In the written statement filed by defendants 9 to 13 they wanted separation of their shares. The suit was resisted by.14 defendant who claimed to be the absolute owner of the plaint schedule items except item No. 3. He contended that plaintiff was represented in the suit and in the execution petition by his mother who was an able woman and had done everything to protect the interests of the minors including plaintiff. Of the items mentioned in the plaint schedule items 7, 8 and 9 were in the possession of tenants and only the remaining items are in direct possession Fourteenth defendant is in possession of items 1, 2 and 4 to 6. She had obtained pattayam with respect to item No. 6 also. She therefore disputed the rights of plaintiff to claim partition and to get the court auction sale set aside.

The fifteenth defendant also raised similar contentions and claimed rights over item No. 3 on the strength of the assignment executed by the 17th defendant. According to, him the rights of plaintiff if any are barred by adverse possession and limitation.

Both sides produced documents. Plaintiff was examined as PW-1 and 14th defendant as DW-1. After hearing both sides and on a consideration of the documents and evidence the trial court found the guardian of plaintiff negligent in prosecuting the execution petition and in consequence set aside the sale in execution. A preliminary decree was passed directing division of plaint items 1 to 6 and the compensation in respect of items 7 to 9 into 16 equal shares and for allotment of one shares to plaintiff. The claim for mesne profits was disallowed. On appeal, the Subordinate Judge, Ottapalam concurred with that decision and dismissed the appeal. Hence, the second appeal which was admitted on the following substantial questions of law.

i. Whether the courts below were right in holding that the sale in execution of the decree in O. S, No. 203 of 1967 was liable to be set aside ?

ii. Whether the courts below should not have held that the rights if any of the plaintiff are barred by limitation ?

Heard counsel on both sides.

Though the substantial questions of law involved in the second appeal are not properly formulated in the appeal memorandum questions of law do arise in this appeal. The claim is for partition of the share due to the plaintiff. That claim can be sustained only on the court sale being set aside. The sale took place while plaintiff was a minor. He was represented by his mother as guardian. The grievance of appellant is that the guardian was negligent in prosecuting the execution petition. He also attributes fraud on the part of guardian as well as the decree holder and the auction purchaser. The suit was instituted more than one year after plaintiff attained majority. In these circumstances the main question that falls for consideration is whether the rights of plaintiff are barred by limitation. The negligence attributed to the guardian and the fraud alleged are also to be enquired into to ascertain whether the sale is liable to set aside or not The court auction purchaser had in turn released his rights to the 14th defendant in whose favour in the meanwhile the other co-sharer had executed a gift. Fourteenth defendant therefore claimed to be a bonafide purchaser for value and sought protection of her rights. The main questions which arise in the suit are : (i) Whether the claim of the plaintiff is barred by limitation ? (ii) Whether the 14th defendant is a bonafide purchaser, and (iii) Whether the guardian, viz. 8th defendant was negligent in protecting the interests of the minor and whether the fraud alleged by the plaintiff had been established ? On these aspects proper consideration is not seen made by the courts below. The trial court has mainly considered the negligence aspect and the sale is seen to have been set aside for the reason that the guardian has not conducted the execution petition properly. The question whether the rights of plaintiff are barred by limitation and the further questioi. whether 14th defendant is a bonafide purchaser are not seen to have been considered by the trial court. Before the lower appellate court also the question of limitation is not seen to have been projected in the proper manner. An argument is seen advanced on behalf of the 14th defendant that the right to get the sale set aside is barred u/s 7 of the Limitation Act, This plea was found to be unsustainable for the reason that Section 7 applies only to cases of persons whose substantive right is joint and not to persons whose substantive rights are several. The claim of defendants 14 to 16 that they are bonaafide purchasers is not seen to have been considered by the lower appellate court also. These questions arise from the pleadings of the parties and should have been considered by the courts below to ascertain whether plaintiff had a subsisting right over the properties to enable him to seek partition. Substantial questions of law therefore arise in this second appeal which can be formulated thus:

i. Whether the rights of the minor to get the sale deed set aside are lost by limitation, he having not taken steps within a period of one year after attaining majority?

ii. Whether the rights of a bonafide purchaser for value are protected and whether plaintiff can enforce his claim against such a purchaser after the period of limitation ?

On. the question of limitation, it is argued by-Learned Counsel for the appellant that Article 99 of the Limitation Act applies and the period prescribed is one year from the date on which the sale was confirmed or the date on which the sale would otherwise have become final and conclusive and no such suit been brought. The period of one year is prescribed; for a suit to set aside a sale by a civil or revenue court or a sale for arrears of Government revenue or for any amount recoverable as such arrears. The sale in the present case is not void but only voidable. According to counsel, it is Article 99 that is applicable. This article applies to cases in which the sale would be binding on the plaintiff if not set aside. In other words, the article applies only to voidable sales and not void sales. Since plaintiff was represented, by a guardian in the suit and in the execution petition it is necessary for the plaintiff to get the sale set aside. Since that can be done only under Article 99 of the Limitation Act the suit has to be instituted within one year from the date of confirmation of the sale. It is pointed out that plaintiff being a minor should have filed the suit within one year of attaining majority. As per the school admission register Ext. A8, plaintiff attained majority on 31-5-1979. One year therefrom will take us tor 31-5-1980. The suit filed on 3-10-1980 is therefore barred by limitation, argues counsel. According to Learned Counsel for the plaintiff-first respondent. Article 99 has no application, where the suit is to set aside a sale on the ground of fraud. Relying on the commentaries on Indian Limitation Act by B. B. Mitra counsel would point out that the suit is governed by Article 113 which is more specific than article 99. Arguments were advanced by both counsel at length on this aspect and attention was also drawn to various authorities. Learned Counsel for appellant cited the Pull Bench decision of the Travancore Cochin High Court in Balakrishna v. Ganesa (AIR 1954 T. C. 209). The Full Bench was considering the validity of a court auction sale. Contention was that the suit to set aside the sale came within Article 120 (of the Limitation Act of 1908) corresponding to Article 113 of the present Limitation Act in as much as what was sought to be set aside was not only the sale but also the decree in execution of which sale was held. There was no prayer to set aside the decree as in this case. The Full Bench held that the decree being good and not void the suit to set aside the sale in execution of the decree fell under article 12 (a) (corresponding to article 99 of the Limitation Act 1963) and not under article 120. It was further held that the suit to set aside the court auction sale must be brought within one year as provided by Article 12(a) of the Limitation Act. The suit having not brought within a period of one year after the plaintiff attained majority it was found to be barred by limitation. If Article 99 is the relevant article applicable to set aside a court sale then the claim of plaintiff is clearly barred by limitation, he having not approached the court within a period of one year after attaining majority.

According to counsel for first respondent, the relevant article applicable is not Article 99 but Article 113. This contention is raised for the reason that the sale was sought to be set aside on the ground of fraud. The plaint no doubt, alleges fraud on the part of the decree holder and the other co-sharer Ummattu Amma. Here itself it has to be said that the only allegation as I could see from the plaint is that the suit was filed by the decree holder and the execution proceeding initiated by influencing the mother of plaintiff who was not an able woman. The properties are thus alleged to have been obtained in a fraudulent manner. Since fraud is alleged the period of limitation will not begin to run until the plaintiff has discovered the fraud or could have discovered it within reasonable diligence. Section 17 of the Limitation Act provides that in the case of any suit or application. for which a period of limitation is prescribed by this Act the suit is based upon fraud of the defendant; then the period of limitation shall not begin to run until, the plaintiff had discovered the fraud or could, with reasonable diligence have discovered it. But section 17 contains a proviso to the effect that nothing in this section shall enable any suit to be instituted to set aside any transaction affecting any property which in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud or did not at the time of the purchase know or have reason to believe that any fraud had been committed. While considering the applicability of this section (Section 18 of the Limitation Act 1908) the Madras High Court in the decision in re Marappa Goundar (AIR 1659 Mad 26) held that a person desiring to invoke the aid of the section must establish three things, (1) that there has been fraud (ii) that by means of such fraud he was kept from the knowledge of his right to sue or apply or of the title on which such right is founded; and (iii) time will be extended under the section only as against the person guilty of fraud, of who is accessory thereto or who claims through the person guilty of fraud otherwise than in good faith and for valuable consideration. It was further held that these three conditions must concur in proceedings to set aside execution sales on the grounds set out in the section and it is not enough for the plaintiff, to show that the action by the defendant was fraudulent.

The evidence in this case is not sufficient to establish the three things necessary to be proved by a plaintiff to invoke the aid of section 17 of the Limitation Act. On the aspect of fraud, there is only a bald recital in the plaint. The details of the fraud and the persons who played fraud do not find a place in the plaint. As observed earlier the only allegation is that the guardian of the plaintiff was misled by the auction purchaser and the decree holder. It is in that manner that fraud is alleged to have been committed. That by itself is not sufficient. The burden is heavy on the plaintiff to show that by means of such fraud he was kept from the knowledge of his right to sue. In this connection Learned Counsel for the first respondent relying on the decision in Shamsudeen v. Lekshami Nadachi C AIR 1951 TC 107) would contend that plaintiff was not aware of the proceedings and that he came to know of the same after he attained majority. In the aforesaid decision it was held that the knowledge required by section 18 (of the Limitation Act of 1908) is not mere suspicion, but it must be knowledge of such a character as will enable the person defrauded to his remedy in court. In order to fix a person proceeded against with knowledge of the execution proceedings and the sale, he must know the number and year of the decree, the court which passed the same and the party who secured the decree. It is further observed that it is for the party opposing the defrauded party to show that the injured party had clear and definite knowledge of the facts which constitute the fraud at. a time from which, taken as a starting point, the application to set aside the sale would be barred by limitation.

In the present case fraud is alleged to have been played on the guardian Of plaintiff and her children including plaintiff. The auction purchaser and D14, who obtained the release of his rights are stated to be close relation and making use of that relationship the mother of the plaintiff is alleged to have been defrauded by them. There is practically no material on record to show that the guardian of plaintiff was either defrauded or misled by any of her relations. Counsel for first respondent would contend that circumstances would suggest fraud and in such a case the burden shifts to the other side to show that there is no fraud. Fraud cannot be inferred from the mere fact that the auction purchaser is a relation or that the purchaser from him is also a relation of the parties. It has also to be noted that no action was taken either by the mother of the plaintiff or her other children after attaining majority. It cannot be said that none of them was aware of the rights which they had over the properties sold in court auction nor can it be said that they were unaware of the court sale for a number of years. The finding of the trial court that defendants 14 and 17 have joined together to create documents is therefore based on no evidence and thus unsutainable. The lower appellate court does not appear to have adverted to the aspect of fraud whereas the decision of the trial court was confirmed on the aspect of negligence of the guardian. When the plaint itself does not contain proper allegations regarding fraud and in the absence of any ''evidence on that aspect the first respondent cannot take shelter u/s 17 of the Limitation Act in order to contend that limitation shall run only from the date of knowledge of fraud. The result is that the suit to set aside sale having been filed more than one year after the plaintiff attained majority is clearly barred by limitation under article 99 of the Limitation Act.

Both the courts below appear to have granted the relief finding negligence in the guardian. The father of the plaintiff Shri Vasudeva Menon owed money to various persons. One of them by name Ravunni Nambiar, father of defendants 1 to 7, filed O. S. 203/67 and obtained a decree. It was in pursuance to that decree that the undivided rights of Vasudeva Menon over the plaint schedule properties were sold in court auction. As noted earlier the decree has not been challenged. In the execution, petition rights of Vasudeva Menon were sought to be sold; His rights had devolved on his mother Ummattu Amma and his wife and children. From the copy of the execution petition" Ext. A 6 it is seen that Ummattu Amma who was the first respondent therein filed counter statement. The legal heirs of Vasudeva Menon appeared through counsel. Counter is also seen filed by them. The execution petition was thereafter posted for evidence and hearing. The court considered the contentions and by order dated 6-3-1969 the decree holder was directed to amend the draft sale proclamation by showing that Vasu Menon had only half right in the properties proposed to be sold. Thereafter the upset price was fixed and the properties were sold in court auction. Execution was taken, out for realisation of Rs. 600/- odd and the properties were sold for an amount of Rs. 2050/. The contention is that sale of one of the properties would have been sufficient to realise the decree amount.'' The negligence was attributed to the guardian in not bringing this fact to the notice of the executing court and in permitting all the properties to be sold. This contention was accepted by the courts below and the guardian was found to be negligent. According to me the finding was rendered on no evidence. That the properties were not sold in lots by itself is. no reason to set aside sale under Article 99 of the Limitation Act. It may be an irregularity committed by the executing court, but cannot at all be said to be on account of a negligent act by the guardian. Both the courts below omitted to note the fact that what was sold in court auction was the undivided half share of Vasudeva Menon and the auction purchaser will have to get a division of the share by instituting a suit for partition. He has to get a preliminary decree for partition and thereafter get the properties divided by metes and bounds in final decree proceedings. All these involved considerable amount of expenses and the fruits of the decree would be obtained only after several years. Taking note of these facts it is futile for first respondent to contend that the guardian was negligent in not requesting the court to sell: only one of the items. No person will be prepared to purchase undivided share over immovable properties since that will be purchasing litigation and the benefits of the purchase in the normal course would be available only after a long period of time. Moreover, (he fact that what was sold was not the minor''s property by the assets of Vasudeva Menon in the hands of his legal representatives escaped the notice of the courts below. The finding that the guardian was negligent was therefore rendered by the courts below on no evidence and is therefore unsustainable. Such a finding is liable to be corrected in second appeal since a question of law is involved on such finding.

Fourteenth defendant claimed to be a bonafide purchaser for value. The rights of Vasudeva Menon were sold in court auction and purchased by D17, who released his rights to 14th defendant under Ext. B4. In the meantime 14th defendant had acquired the rights of Ummattu Amma by Ext.Bl gift. Section 17 of the Limitation Act protects the rights of a person who had purchased the property for valuable consideration. The proviso to that section says that even if the period of limitation is liable to be extended on establishing fraud nothing in the section shall enable any suit to be instituted to set aside any transaction affecting any property which has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud has been committed. It has already been found that the allegations regarding fraud are insufficient and there is no evidence to establish fraud. Fourteenth defendant is therefore a bonafide purchaser for value. Even if section 17 applies the 14th defendant can seek the protection of the proviso in view of the failure of the plaintiff to establish fraud. In this connection Learned Counsel for the appellant draws attention to the decision in Infer Sain v. Prabhu Lal (AIR 1922 Lah 277). It was held that a bonafide auction. purchaser need look only to the decree and order of sale of the executing court and is not bound to enquire further into title and so long as the decree remains valid, the proceedings taken under that decree, so far as they affect third parties in the same position as bonafide auction purchasers, cannot be impugned. In holding so, the Lahore High Court has followed the principles laid down in 29 Bombay 435--Shivlal Bhagwan v. Shambhu Prasad and 10 All. 166--Zain ul-Abdin v. Muhammad Asgnar Ali. Reliance was also placed on a later decision of the same High Court reported in Ahmad Khan v. Miraj Din (AIR 1940 Lahore 80). In that case the property of a Mohomedan mother and her minor son who was represented by his brother as guardian was sold in court auction in execution of a mortgage" decree. The minor challenged the mortgage on the ground that his mother could not execute valid mortgage and that his brother who represented him as guardian was not competent to do so. It was also contended that the guardian did not raise a plea that the mother was incompetent to execute a mortgage on his behalf. It was held that the rights of the bonafide purchaser were not affected by the sale in execution and the sale could not be set aside.

As early as 1886 the Madras High Court in Venkatapathi St another v. Subranianya & others (I. L. R. 9 Mad 457) held that a suit to set aside a sale of land sold for arrears of revenue was governed by article 95 of Schedule II of the Indian Limitation Act 1977. It was further held that article 12 of that schedule (corresponding to article 99 "of 1963 Act) Which prescribes a period of one year for suits to set aside sales for arrears of revenue is intended to protect bonafide purchasers only.

Fourteenth defendant is a bonafide purchaser for value. He had obtained release of the rights of the auction purchaser. Since first respondent laving failed to establish fraud as well as negligence on the part of the guardian the court auction sale is not liable to be set aside. It necessarily follows that the release of the rights of the court auction purchaser in favour of 14th defendant is a bonafide transaction. Even if there is fraud on the part of the auction purchaser and the decree holder the claim to set aside the salt is not sustainable by virtue of the proviso to section 17 of the Limitation Act. The court auction sale was for valuable consideration and the 14th defendant has obtained release of his rights or value. Fourteenth defendant had no reason to believe that any fraud has been committed either in the proclamation of the sale or in the sale in pursuance thereof. In any case therefore 14th defendant is a bonafide purchaser for valuable consideration and his rights are not in any way affected even if there is irregularity or infirmity in the sale. As observed earlier first respondent having not moved the court within a period of one year after attaining majority the claim is also barred by limitation. In any view of the matter the relief to get the court auction sale set aside should not have been allowed by the courts below. A grave illegality has been committed in granting that relief. A substantial question of law arises thereby and the illegality committed has to be corrected by reversing the finding of the courts below and holding that the sale is not liable to be set aside. The judgments and decrees of the courts below are therefore unsustainable and are to be set aside. Even if the relief to set aside court auction sale has to be refused the claim for partition of tern No. 6 can be sustained, since that property was not sold in execution of the decree. Fourteenth defendant claims to have obtained a patta in respect of this item. But it has not been shown as to how the rights of plaintiff over this item are lost. Plaintiff can therefore claim share over this property. He has claimed only l/14th share, regarding which there is no dispute. A preliminary decree for part ion has therefore to be passed for division of that item.

For the reasons stated above the second appeal is allowed and the judgments and decrees of the Courts below are set aside and the Court, sale of items 1 to 5 is found to be not liable to be set aside. Since item No. 5 was not sold in Court auction that property is available for division. A preliminary decree is passed in respect of item No. 6 of the plaint schedule for division of that property into 14 equal shares and for allotment of one share to plaintiff. Both the Courts below have not granted profits to the plaintiff and as such there will not be any direction regarding payment of profits. In view of the peculiar circumstances of the case I direct both parties to suffer their respective costs in this appeal. The costs incurred by the plaintiff in the trial Court. shall come out of the estate. Plaintiff will be entiled to move the trial Court for getting a. final decree passed, The suit is adjourned sine die.