JUDGMENT
Prabha Shanker Mishra, J.
1. This appeal by the defendants in a title suit is directed against a judgment of affirmance. The trial court as also the first appellate court have held that the sale deed dated 30-5-1955 executed by Smt. Chandra Prabha Devi in favour of defendant Nos. 1 and 2 is null and void, that the plaintiff is entitled to possession of the suit property and that the defendants are liable to be evicted from the said property.
2. The facts, except a few exceptions, are almost admitted. Two shops with Parti lands bearing holding Nos. 281 and 282 within Ward No. 2, Circle No. 14 under Chapra Municipality belonged to late Brij Bihari Prasad Advocate. Holding No. 281 was let out to one Gulam Murshid, father of the defendants second party (defendants 7 to 10). Holding no- 282 was let out to M/s. Anant Brothers and Co., of which the plaintiff-respondent was a partner. On 12.12.1949 Brij Bihari Prasad executed a deed of gift in favour of his wife, Smt. Chandra Prabha Devi in respect of certain properties including holding Nos. 281 and 282. On 22-8-1954 Brij Bihari Prasad executed a deed of agreement for sale, for self and as guardian of his son Birendra Prasad, in favour of the plaintiff received part consideration and put the plaintiff in possession. On 30-5-1955 Smt. Chandra Prabha Devi (in the capacity of the donee sold holding Nos. 281 and 282 to two sisters, namely, Smt. Ram Kishori Devi and defendant No. 1, dividing the two holdings in the manner that western portion (holding No. 281) was transferred to Smt. Ram Kishori Devi and the eastern portion (holding No. 282) was transferred to defendant No. 1. On 29-7-1955 Brij Bihari Prasad executed the sale deed for self and as the guardian of his son, Birendra Prasad, and transferred holding Nos. 281 and 282 to the plaintiff- Ram Kishori Devi filed a suit for eviction of M/s. Anant Brothers and Co. from holding No. 281, claiming title by virtue of the sale deed executed by Smt. Chandra Prabha Devi on 30-5-1955. The said title suit was, however, dismissed, on a finding that the deed of gift executed by Brij Bihari Prasad in favour of his wife was void, as he was not competent to demise the properties, jointly belonging to him and his minor son, by a deed of gift to his wife. The trial court’s judgment in the said eviction suit was affirmed by the first appellate court as also by this Court, vide judgment dated 5-8-1960 in Second Appeal No. 347 of 1958. Defendants 1 and 2 however, filed another suit for eviction, impleading Gulam Murshid as a defendant, from holding No. 282. (Title suit no 164/41 of 1955/56). The trial court decreed the suit. But on appeal, it was remitted to the trial court for a hearing. After remand, however, defendants 1 and 2 entered into a compromise with Gulam Murshid, who in term of the said compromise, vacated a portion of the said holding and delivered possession thereof to defendants 1 and 2. Birendra Prasad, who was born before Brij Bihari Prasad executed the deed of gift in favour of Smt. Chandra Prabha Devi, attained majority in the year 1967. Round about the same time, Gulam Murshid vacated the entire holding No. 282 and defendants 1 and 2 assumed possession. There was some vacant land behind the shops in holding Nos. 281 and 282 belonging to Brij Bihari Prasad and Birendra Prasad. On 11-5-1969, they executed another sale deed in respect of the said vacant land in favour of the plaintiff. The plaintiff, on the basis of his title by virtue of the said transfer made by Brij Bihari Prasad for self and as guardian of his minor son has instituted the instant suit and succeeded in obtaining a decree both in the trial court and the court of appeal below.
3. The basic question involved in this case is, whether defendants 1 and 2 acquired any title, right or interest in holding No. 281 and/or 282 by virtue of the sale deed executed by Smt. Chandra Prabha Devi or not. In other words, whether Smt. Chandra Prabha Devi had any title or interest in the suit properties or not, which she could transfer in favour of defendant Nos. 1 and 2. Smt. Chandra Prabha Devi’s title, right or interest in the suit properties depends upon the validity of the deed of gift dated 12-12-1949 executed by Brij Bihari Prasad. The moot question, therefore, is the deed of gift executed by Brij Bihari Prasad on 12-12-1949 in favour of Smt. Chandra Prabha Devi valid ? Does it create any title, right or interest in her favour? It is not in dispute that Brij Bihari Prasad executed the said deed of gift in favour of his wife, Chandra Prabha Devi when their son, Birendra Prasad, was already born. This also is not in dispute that the property in question was the ancestral property in the hands of Brij Bihari Prasad. Since Brij Bihari Prasad’s son Birendra Prasad was already born, a coparcenary had come (o exist. Admittedly their family was governed by the Mitakshra School of Hindu Law, As an obvious incident of a coparcenery between Brij Bihari Prasad and Birendra Prasad, they were co-sharers having equal rights, Brij Bihari Prasad being the father and the Karta and Birendra Prasad, the son, acquiring right and interest in the property by birth.
4. To judge the validity of the alienation made by the father as the manager and Karta of a Hindu Joint family, it has to be borne in mind that his capacity to alienate is well recognised. The said capacity is constricted by the rules of prudence derived from the texts- Mitakshra adapted what Brihaspati and Veyas said (Hindu Code by H. S. Gour, Vol-II 5th Edition 546):
While the sons and grand sons are minors, and incapable of giving their consent to a gift and. the like, or while brothers are so and continue unseparated, even one person, who is capable may conclude a gift hypothecation, or sale of immovable property, if calamity affecting the whole family requires it, or the support of the family renders it necessary, or indispensable duties, such as, the obsequies of the father or the like make it unavoidable”. (Brihaspali)….A single coparcener ought not. without the consent of his coparcener, to sell or give away immoveable properly of any sort which the family hold for coparcenery. (Veyas).
In Balmukund v. Kamlawati and Ors. it has been pointed that the manager of a Hindu family is competent to alienate the joint family property, if the alienation is beneficial, to the estate, even though there is nothing as the legal necessity to justify the transaction. In Guramna Bhratar Chanbasappa Deshmujkh v. Mattappa Chandasappa it has been pointed out-
….A coparcener, whether he is natural born or adopted into the family, acquires an interest by birth or adoption as the case may be, in the ancestral property of the family. A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. An alienation can also be made by a managing member of the family with the consent of all the coparceners of the family. The sole surviving member of the co-parcenery has an absolute power to alienate the family property, as at the time of alienation there is no other member who has joint interest in the family if another member was in existence or in the womb of his mother at the time of the alienation. The power of the manager was as aforesaid and his alienation would be voidable at the instance of the existing member or the member who was in the womb but was subsequently born, as the case may be, unless it was made for purposes binding on the members of the family or the existing member consented to it as the subsequently born member ratified it after he attained majority. If another member was conceived in the family or inducted therein by adoption before such consent or ratification, his right to avoid the alienation will not be affected….
In Tirupurasundari Ammal v. Katyaharaman and Anr. it has been pointed out:
….It is only gifts made by the managing member in favour of the daughters as a marriage provision either at the time of the marriage or later in pursuance of an earlier promise have been held to be valid or the properties gifted are found to be reasonable having regard to the extent of the properties of the joint family. But I have not been referred to any case in which a gift by the managing member of the family in favour of any other person has been held to be valid on the ground of religious, pious or meritorious purpose”….
In Perumalakkal v. Kumarasan a gift by husband of an ancestral property in favour of his wife said to have been made in fulfilment of his father’s wishes has been held to be invalid because it has been held, such a gift was not for pious purposes.
5. The law undoubtedly settled on the subject is. It is incompetent to an undivided member of the Hindu family to alienate by way of gift of his undivided share or any portion thereof and that such alienation is void in toto and this principle cannot be effected by the undivided member professing to make an alienation for value, when such value is manifestly inadequate and inequitable.
6. A coparcener’s gift of the whole or any portion of the joint family property is invalid except in cases (1) when it is made with the consent of other coparceners,(2) if made by the father, who in certain cases, may without consent of the other coparceners can make, is within reasonable limits of a movable property for indispensible acts of duty or through affection, and immovable property for pious purposes.
7. The above discussion of law should have been enough but for yet another submission by learned Counsel for the appellants, which I shall presently notice. He has submitted that the validity of the deed of ‘gift could be questioned by none else, but Birendra Prasad, the only coparcener, whose right was affected by the deed of gift executed by his father in favour of his mother. He has contended that once it is accepted that Brij Bihari Prasad had the father’s manager’s capacity to alienate by executing a gift, the property in question, whether the gift made by him was ratified by Birendra Prasad or not and/or he consented to its execution or not. are the questions which can be gone into only in an action brought to a court by Birendra Prasad and none else. The gift made by Brij Bihari Prasad is not void but voidable at the instance of Birendra Prasad. The argument, undoubtedly, is very attractive.
8. There are two circumstances, however, which compel me to reject this contention, the first being the fact that Birendra Prasad did not consent and/or that he did not ratify gift is writ large in the execution of the sale deed dated 29-7-1975 by Brij Bihari Prasad for self and as guardian of his minor son, Birendra Prasad, this shows that the gift was not acted upon and was a sham transaction, and the second being that the very gift in question was impugned in an earlier proceeding and in Second Appeal No. 347 of 1958 this Court has already held that the deed of gift executed by Brij Bihari Prasad in favour of his wife, Chandra Prabha Devi, is void. It is obvious that the appellants are claiming title under a void transaction, as Chandra Prabha Devi had no title since the deed of gift executed in her favour by her husband was void. She could not make any transfer in favour of the defendants-appellants. The plaintiffs acquired valid title by virtue of transfer made by Brij Bihari Prasad for self and as the guardian of his minor son.
9. The defendants appellants have not raised any plea of title by adverse possession. They have, rather, based their right on the deed of transfer exceuted in their favour by Smt. Chandra Prabha Devi.
10. Learned Counsel for the appellants has contended with some vehemence that the suit is barred by limitation for the reasons, inter alia, that the case shall be covered by Article 59 of the Limitation Act. According to him, the suit instituted by the plaintiff respondent is essentially one for cancellation of the instrument of transfer, namely, the deed of gift by Brij Bihari Prasad in favour of Smt. Chandra Prabha Devi and the deed of sale executed by Chandra Prabha Devi in favour of the appellants. Article 59 of the Limitation Act fixes a period of three years for a suit for getting an instrument or decree cancelled or set aside or the contract rescinded from the date it first became known to the plaintiff. He has submitted that the plaintiff got full knowledge of the deed of gift between 1955 and 1958: The instant suit was instituted in the year 1970. According to him the suit is barred by limitation. But the ingenuity of this argument cannot deter me from holding that in the instant suit, for declaration of title and confirmation/recovery of possession, the relief to declare the deed of gift executed by Brij Bihari Prasad in favour of his wife Smt. Chandra Prabha Devi is a surplus age. A court is not a slave to the form of a plaint. It goes by substance. The plaintiff respondent in the instant suit was not at all required to ask for the cancellation of the deed of gift, because once the deed of gift is found to be void, the consequences are obvious. The character of the plaintiffs suit is evidently one of declaration of title and recovery of possession. In such a case Article 65 of the Limitation Act, 1963 is the correct provision.
11. I am supported by a judgment of the Calcutta High Court Dalim Kumar Sain and otters v. Smt, Nandarani Dassi and Anr. . which with reference to Article 9T of the Limitation Act 1908 has said-
Article 91 cannot be called in aid here In substance; the suit at hand is a suit for declaration that the two mortgage deeds are void. So Article 91 is not for such a suit.
If an instrument is void, it means it is honest.
12. I have considered the main contentions raised before me. The two initially framed questions at the hearing under order 41 rule 11 of the Code, whether the court below erred in law in not determining the question whether the suit is barred by limitation and whether a stranger to the family can impugn the validity of a deed of gift executed by a coparcener of a joint Mitakshara family have already been noticed by me and answered against the appellants. The third question framed at that time whether the court of appeal below erred in law in affirming the decree for arrears of rent without recording a finding whether there was a relationship of landlord and tenant between the plaintiffs and dependants, has also to be answered against the appellants, for the obvious reason that the defendants were admittedly tenants under Brij Bihari Prasad until the dispute arose and as the plaintiff respondent has stepped into the shoes of the original landlord by virtue of her purchase of the property, she is entitled to a decree for arrears of rent.
13. In the result, there is no merit in this appeal. It is, accordingly, dismissed. There shall be no order as to costs.