AI Structured Summary
Not yet generated for this judgment
Judgment
T.K. Joseph, J.—This is a Plaintiff''s appeal and it arises out of a suit for setting aside a hypothecation bond, the decree passed thereon and the execution proceedings. The Plaintiff is the son of Defendant 5. According to the Plaintiff Defendant 5 hypothecated the plaint properties which belonged to the joint family consisting of himself and his father to the father of Defendants 1 to 3. The latter obtained a decree in O.S. No. 118 of 1107 and in execution purchased the properties and obtained delivery of possession of the same.
The Plaintiff who was a minor on the date of the hypothecation bond, decree and execution proceedings sought to set aside the same on the ground that the debt was vitiated by illegality and immorally. Defendants 3 and 4 contended that the debt was a valid one binding on the joint family and that the suit was barred by limitation. The question of limitation was considered as a preliminary issue and was found against the Plaintiff. The suit was accordingly dismissal and the Plaintiff has preferred this appeal.
The only point arising for decision in this appeal is whether the suit is barred by limitation. The view taken by the Court below was that the suit was barred under Article 9(a), Travancore Limitation Act, which reads as follows:
Description of suit Period of limitation Time from which period begins to run.
To set aside any of the following sales:- (a) Sale in execution of a decree of a Civil Court by whomsoever brought on any ground other than that the judgment-debtor or his family or Tarwad had no right, title and interest in the property sold. One year When the sale is confirmed, or would otherwise have become final and conclusive, had no such suit been brought.
The sale in question was confirmed on 28-4-1111 and the suit was instituted on 18-10-1123. The Plaintiff was twenty-one years old on the date of suit so that it is clear that the suit was filed mote than, one year after the Plaintiff attained majority. The position taken by the Plaintiff in his pleadings is that the sale is a voidable one and has to be set aside in order to allow him to recover possession of the properties delivered in pursuance of the sale.
If the sale has to be set aside a suit has to be brought within one year of the date of confirmation of the sale. It was urged on behalf of the Appellant that if the debt is found to be tainted with illegality, or immorality the decree passed thereon would be void and that the sale held in execution of such it decree would also be void so that no question of setting aside the sale or the applicability of Article 9, Limitation Act would arise. We are unable to accept this argument.
As stated earlier the Plaintiff''s, case was that the sale was one which had to be avoided. He had no case that his interest in the joint family properties was not sold in execution, if it were a case in which the Plaintiff''s interest was not sold in execution, there would not have been any necessity to set aside the sale but that is not the Plaintiff''s case.
As held by the High Court of Madras in - ''Narayana v. Venkatswami'' AIR 1926 Mad 1180 (A), we must look at the pleadings and not at the result of the suit when we have to apply the law of limitation. It was also held in that case that the sale in such circumstances would be only a voidable one and not a void one. This was the view consistently held by the High Court of Travancore from very early times.
The decisions in - ''Subramonian v. Neelacantan 4 Trav LJ 178(B); - ''Chonnaru v. Mani'' 10 Trav LJ 299 (C), and other decisions is to the effect that the sale in such eases would be only voidable and not void. The Patna High Court has also in a number of cases upheld this view. Our attention was drawn to a decision of the Madras High Court in - ''Lakshmadu v. Ramudu AIR 1939 Mad 867 (D), holding that where a debt incurred by father is found not to have been due or to have been incurred for purposes which are immoral or illegal decree obtained in respect of such a transaction would not bind the son and that the sale held in execution could not be binding on them.
It was pointed out that this decision WAS followed by this Court in the decision reported in - ''Kamakshi Amma v. Gangadharan Pillai'' 1953 KLT 706 : AIR 1954 Trav-Co 60 (FB) (E). It was followed only for this limited purpose viz., that if the decree is void the sale also would be void, a proposition which is quite unexceptionable. We prefer to follow the view held in Narayana Naicken Vs. Venkataswami Naicken and Others, .
The Plaintiff had no case in the pleadings or in the memorandum of appeal that the decree and the sale were void. In fact if he had a case that the decree and sale were void he need not have included a prayer for setting aside the sale. As the interest of the son was also sold in execution he is not entitled to recover possession without setting aside the sale. The sale being only a voidable one the prayer for setting aside the sale was necessary, and as the suit was brought more than one year after the Plaintiff attained majority the same is barred by limitation.
In the result we confirm the decree of the lower Court and dismiss the appeal with costs.