Kejuram and another vs Ramdayal and others

Shiv Dayal, J.

The only question in this appeal is whether the appellant''s suit was within time. They alleged that on the death of their father, Surit, they had neither a natural guardian, nor a guardian appointed by the Court, Ramcharan (defendant 4) just started managing their property. Later on, without any right or authority, he transferred the suit property to the other defendants. The plaintiff, therefore, claimed a decree for possession of the alienated lands. The trial Court held that the Ramcharan acted merely as a de facto guardian; that the transfer of the suit land was without any legal necessity, nor was it for the benefit of the estate; and that Ramcharan brought the sale proceeds to his own use. A decree for possession was passed in the plaintiffs'' favour. The first appellate Court, while maintaining the finding that the sale could not be upheld for want of legal necessity or benefit of the estate, reversed the decree of the trial Court holding that the suit was barred by limitation. The finding of fact has not been, nor could be, attacked before me.

The demised lands were occupancy within the meaning of the C. P. Tenancy Act, 1920. The sale deed is dated 28 January 1952. Plaintiff 1, Kejuram, attained majority on 3 April 1959. The suit was commenced on 21 April 1959. The first appellate Court applied Article 1 of Schedule II to the Act under which the limitation prescribed is 3 years from the date of dispossession or exclusion from possession. Sections 6 and 7 of the Limitation Act do not apply (see section 104, C. P. Tenancy Act, 1920). The present suit was clearly instituted beyond 3 years from the date of the transfer.

In Asaram v. Lubdheshwar AIR 1938 Nag. 335 : I LR 1939 Nag. 1 (F. B.)., it was held that when a proprietor of a sir land transfers the occupancy rights in it in contravention of section 49 (1) of the C. P. Tenancy Act, the transferee becomes a quasi-trustee u/s 80 of the Indian Trusts Act and holds for the benefit of the ex-proprietor. He, therefore, neither dispossesses nor excludes the ex-proprietor from possession and consequently Article 1, Schedule II to the Tenancy Act does not apply. Stone C. J. observed as follows:

Illegality being established, even though not pleaded, it follows that the surrenderees have to be placed in the position of quasi-trustees. That position being reached the Court must declare that the surrender being illegal, the persons in possession under it hold as quasi-trustees, that such quasi-trust should be determined and that defendants do relinquish possession on terms that are equitable and that have the effect of restoring as nearly as may be the status quo.

Though that result is similar in effect to that which a tenant would obtain if he sued a landlord who had wrongly dispossessed him in that in both cases the plaintiff gets possession, the two causes of action are entirely different. The decree which results in the plaintiff getting possession is not directed against the defendant as a person dispossessing but as a person in the position of a trustee holding for the cestui quo trust which trust is being determined.

And Vivian Bose J., observed as follows:

In my opinion there is a quasi-trust in such cases u/s 84 of the Trusts Act by virtue of which the transferee holds the property for the benefit of the transferor, and if he does that then as I view the law there is neither dispossession nor exclusion from possession in the sense in which those words are used in the schedule. u/s 95 of the Trusts Act he holds as if he were a trustee for the transferor and u/s 14 he is prohibited from setting up any adverse interest. I cannot regard this as constituting either dispossession or exclusion from possession within the meaning of the 2nd Schedule of the Tenancy Act.

Shri Dabir endeavours to distinguish that decision from the present case. The argument is that in that case there was fraud committed on the statute, namely, section 49, C. P. Tenancy Act, 1920, which prohibited transfer of sir land by a proprietor. In order to get over the prohibition, on 14th April 1923, a sale deed was executed of the four annas share reserving to the vendors cultivating rights in the sir land. On the same day the sir lands were also surrendered. Both these parts of the transaction, namely, transfer of the malguzari share and the surrender in favour of the transferee were but a fraudulent device. It was, therefore, held that the sir land never lost its character so as to become occupancy because the transfer of the proprietary share being in spite of the prohibition contained in section 49, was no transfer in the eye of law at all and had no results generally and in particular of altering the character of the land as sir.

In my opinion, the principle laid down in Asaram AIR 1938 Nag. 335 : ILR 1939 Nag. 1 (FB). must be extended to a case of void alienation of a minor''s property. It is settled that the expression de facto guardian is not correct. An alienation of the property of a minor by a person who is merely a de facto manager, but not a guardian de jure is not merely voidable but absolutely void. [(See Husen v. Rajaram 10 N L R 133.]. A transfer of a minor''s property by a person who has no authority to transfer is no transfer at all in the eye of law. A de facto manager holds the minor''s property in trust. A transferee from him is also in the position of a trustee. Therefore, applying the principle of Asaram case (1), the plaintiffs were neither "dispossessed" nor "excluded from possession" when Ramcharan sold the land to the other defendants. I would further recall the distinction between "dispossession" and "discontinuation of possession" which was succinctly stated by Bose J., in Meharban v. Usufali 1938 NLJ 418 : AIR 1939 Nag. 7 : ILR 1941 Nag. 655.

The position seems to be this:

It is clear from these provisions that this being a suit governed by the special Act, namely, C. P. Tenancy Act, 1920, the period provided by that Act will apply in place of ordinary period of limitation under the Indian Limitation Act. It is also clear that the plaintiffs in such a case will not be in a position to claim benefit under sections 6 and 7 of the Limitation Act those sections being specifically excluded in their application to the suits governed by the C. P. Tenancy Act. The present suit for possession was filed by the plaintiffs on 21-9-1959 against the defendants who had secured possession as a result of the transfer effected in their favour by the plaintiffs'' de-facto guardian on 28-1-1952. The claim thus is clearly barred under Schedule II, Article 1 of the C. P. Tenancy Act, 1920. The plaintiffs, though minor at the date of transfer, could not claim the benefit of their minority for the delay of more than three years provided by the Act in bringing the present action.

The decision in Asaram v. Lubdheshwar A I R 1938 Nag. 335 : I L R 1939 Nag. 1 (FB). cannot aptly apply in the present case. In that case section 84 of the Trusts Act was directly applicable. The proprietor effected, in that case, the transfer of his sir land by committing fraud upon the statute namely section 49 of the C. P. Tenancy Act which prohibited transfer of sir land by a proprietor. The device adopted by him was that he effected sale of his four annas share reserving to himself the cultivating rights in the sir land. On the same day the sir lands were also surrendered in favour of the transferee. All this was held to involve a device to defeat the provisions of law namely the statutory prohibition to a proprietor to transfer his sir land. To permit the transferee to continue under the circumstances was held to amount to defeating the provisions of section 49 of the Act. Transferee, under the circumstances, was held to be quasi-trustee in respect of the land and would hold the land for benefit of the transferor. Consequently it was held that no question of limitation was involved as there was neither dispossession nor exclusion from possession. Sections 95 and 14 were called into play along with section 84.

In the present case although the transfer by a de facto guardian might be void but for that reason it cannot be held that it was meant to defeat provisions of any law. The motive for the de facto guardian could, at the most, be to make an illegal gain. Moreover section 84 of the Trusts Act in terms will not apply as there is no transfer by an owner in this case. It is a transfer by a person who is an outsider and having no authority to act in the name of the minors. The action may be wrong or reprehensible but for that reason the transferee cannot be constituted a quasi-trustee. Moreover it cannot be said that the motive for the transfer in the manner done was to defeat any provision of law.

It certainly would appear that minors who could not protect their interest are being deprived of their property due to the action of a wrong doer and the Courts cannot come to his aid. But apparent hardship arises due to inapplicability of sections 6 and 7 of the Limitation Act and nothing else.

Other cases of hardship to minor are conceivable and the Courts may not be able to come to their rescue.

Mr. Dharmadhikari sought to rely upon the decision in Morgan v. Morgan 26 E R 310.

It is difficult to import principle of that case in view of the fact that the Indian Trusts Act constitutes a Code and is exhaustive in respect of which it declares the law.

It would appear to be an attractive principle if a thief or a wrong doer taking another''s property were constituted a trustee by law, but as is well-known this is not the legal position.

My brother Pande J., sitting singly in Passu and others v. Mst. Bhagwantin S. Appl. No. 486 of 1960 decided on the 27th August 1963., has taken the same view with reference to a provision in section 25 of the C. P. States Land Tenure Order, which is in similar terms as section 104 of the C. P. Tenancy Act, 1920, with Schedule II almost in identical terms. There too section 25 (4) of the Order made sections 6 and 7 of the Limitation Act inapplicable to a claim governed by the Order and the Schedule thereunder. The points of view sought to be canvassed in the present case no doubt were not done before him. But that will not alter the position as those points, to my mind, are untenable.

I would, therefore, answer the reference in the affirmative by holding that in the case of a transfer by a de facto guardian of a minor tenant governed by the C. P. Tenancy Act, 1920, there could be dispossession or exclusion from possession of the minor due to passing of the property to a stranger transferee, and a suit for possession, if not brought within three years of such dispossession or exclusion from possession, it would be barred by time.