JUDGMENT
Kilam, J.
1. This plaintiff’s first appeal is directed. against a judgment of the Subordinate Judge. Jammu dated 18th Phagan 2006 and arises out of the facts given below. The following pedigree table will facilitate their understandings :
JAWAHIR
__________________|___________________
| |
Jagat Ram (dead) Gopi
__________________________________________|________
| | | |
Amin Chand Lakshmi Dewan Shiv Ram
(dead) Dayal Chand |
Deft. 3 Deft. 4 Lok Nath Plff.
2. The plaintiff brought a suit for recovery of. land measuring 136 Kanals and 8 1/3 marlas with the allegation that it was his exclusive property. As early as 1958 the suit land was acquired by Jagat Bam and Shiv Bam by means of a registered sale deed. Sometime after Jagat) Ram died, and his share in the land was mutated in the name of Shiv Ram alone. Shiv Bam also died leaving behind his sou Lok Nath plaintiff. In the year 1982, the widow of Shiv Bam made a statement before the Tabsildar that her husband Shiv Ram was the Managing member of the joint family even when his father was alive and as the Manager of the family he acquired some land for the family, though the sale deeds were exacuted in his name. She, therefore, requested the revenue authorities to effect a mutation in the names of Lakshmi Dayal and Dewan Chand who are the brothers of Shiv Bam and uncles of Lok Nath. This prayer of hers was accepted by the mutation officer and the names of the plaintiff’s uncles, i. e., Lakshmi Dayal and Dewan Chand were added in the register of mutation as owners along with the plaintiffs Lok Nath. Admittedly Lok Nath was a minor then. It was later on in the year 1991 that the suit land was sold to defendants 1 and 2 by Lakshmi Dayal, Dewan Chand, and Lok Nath Bhagwanti widow of Shiv Bam acting as the guardian of Lok Nath plaintiff. Mutations were effected in the names of the vendees and they continued in possession of the land upbo the year 2005 when Lok Nath brought the present suit for the possession of land sold to defendants 1 and 2.
3. The main ground of attack made by Lok Nath was that during hia minority his uncles i, e. defendants 3 and 4 took advantage of the simple. mindedness of his mother and without any right or title they got mutations of the land in question effected in their names which they later on transferred by sale including the share which was reserved for the plaintiff, to defendants 1 and 2. On these grounds he made a prayer for possession of the suit land.
4. The contesting defendants resisted the suit on the ground that Shiv Ram, father of the plaintiff, was living jointly with hia two brothers, Lakshmi-Dayal and Dewan Chand, defendants 3 and 4 and that the property acquired by him in his own name was in reality the property of the joint family. They further aver in their written statement that the sales were effected for consideration and legal necessity, and though the plaintiff was technically a minor at the time the sales were effected, yet he had completed his 17th year and had enough mental maturity to understand his profit and loss. His mother was his natural guardian and she could alienate land on his behalf for legal necessity. It was further pleaded in the written statement that the suit was barred by time.
5. The main points which need discussion and decision in this case are whether Shiv Ram father of the plaintiff was the sole owner of the land in dispute, or was he a member of the joint family who had made acquisitions of property in his own name, yet essentially for the whole family? Secondly, is the suit within time? We think the point of limitation raised by the defendants may be firstly gone into.
6. The suit has been brought in Baisakh 2005. In his statement dated 20th Jeth 2005 recorded on page 127 of the trial Court file Lok Nath has stated his age to be between 29 and 30. Contesting defendants too have in their written statement stated his age as 29. For all purposes this may be held to have been proved that he was of 29 years on the date when the present suit was brought. From this, it follows that Lok Nath was about 16 years on the day when the two sale deeds in favour of defendants 1 and 2 were executed i. e. on 4th Baisakh 1991. Lok Nath became major some where in 1993 or 1994. The learned counsel for the appellant has argued that the suit is governed by Article 142 of the Limitation Act and that the period of limitation for such a suit which is for possession, is 12 years from the date when the sale deed was executed, but the learned counsel adds that in the present case, the period of 12 years shall have to be computed from the year when the plaintiff became a major. As already stated, the plaintiff became major in the year 1993 or 1994. The present suit has been brought in the year 2005 i. e., after 14 years of the execution of the sale deeds, but within 12 years of his attaining majority. But a closer examination of the argument of the learned counsel would show that even though the suit be held to be governed by Article 142, Limitation Act, yet the suit of the plaintiff cannot be found to be within time. This we shall discuss in further detail later on. But meanwhile we shall see as to which Article of the Limitation Act is applicable to the present suit. It is a fact that the present suit is in form one for possession, yet in essence it is obvious that it is a suit by a ward, who had attained majority to set aside the transfer of his property made by his guardian. Article 44, Limitation Act, is applicable to such a suit. A prayer for possession of such property would make no difference. This article gives only a period of three years to bring a suit from the date when the transfer has taken place. There is ample authority for this proposition. In Ankatnma v. Kameshwaramma, A. I. R. (22) 1935 Mad. 1 it has been held that :
”a suit to set aside an alienation made during the minority of an adult member filed beyond three years of his attaining majority but within 12 years of the alienation is barred, and there is no difference, even if the plaint contains a prayer for possession.”
In G.M. Rasiwi Ali v. Ratnainanikka Mudaliar, A. I. R. (25) 1938 Mad. 677 it has been laid down that:
“the policy of Article 44 is that a question of that kind (dispossession of an alienee) should be investigated and decided within a period of three years after the attainment of majority by the ward . . . .”
A similar view has been taken in Kuppuswami Ayyar v. Sabapathy, A. I. R. (23) 1936 Mad. 943 and Kondaji Bagaji v. Dugadu Gajalia, A. I. R. (22) 1935 Bom. 259.
7. The trend of the authorities is that in spite of the fact that the suit is for possession of the property alienated during the minority of a person, it has yet to be brought, within three years from the date when the person attains majority.
8. In this case the plaintiff attained majority in 1993 or 1994. At the most the suit should have been brought in the year 1997. Applying Article 44 to it, the suit which has been brought in 2005 is clearly time-barred. The argument of the plaintiff’s learned counsel that the suit is governed by Article 142, Limitation Act, is not supported by the above authorities. Nor has the learned counsel brought any authority to our notice which might Induce us to take a different view from the one expressed above. But even as it is, let us examine his argument.
9. We have noted somewhere in this judgment that even if the argument of the plaintiff’s learned counsel be held as correct, still the suit is not within limitation. The learned counsel argues that 12 years shall have to be computed from the time when the plaintiff became major. His argument is that the plaintiff became major in 1993 or 1994 and as the suit has been brought in Baisakh 2005, his suit is within 12 years of
his attaining majority and as such within time. The learned counsel computes 12 years from the date when the plaintiff became major. But while doing so, he has completely overlooked the provisions of Section 8, Limitation Act, which says that the period of limitation shall not be deemed to extend for more than 3 years from the cessation of the disability of the person concerned in bringing the suit. Illus. (b) to Section 8 which runs as follows makes the meaning of this section all the more clear.
(b) “A right to sue for an hereditary office accrues to A who at the time is insane. Six years after the accruer, A recovers his reason. A has fix years under the ordinary law from the date when his insanity ceased within which to institute a suit. No extension of time will be given to him under Section 6 read with this section.”
Taking this into consideration, no extension is possible so far as the plaintiff in the preaent case is concerned. The transfer having been made in the month of Phagan 1991, the present suit should have been ordinarily brought by Phagan 2003. The plaintiff became major in 1993 or 1994, i. e., after about 3 years of the transfer. The question is: is he entitled to any extension of time under Section 8, so as to make it possible for him to bring the suit in 2005 ? The answer to this is in the nega-tire, since alter the attainment of majority he had yet nine years left to bring the suit under the ordinary law. In such cases Section 8 does not permit any extension of time. The period can be extended upto an extent of three years if under the ordinary law out of the period of limitation prescribed, there remains a period of less than three years for bringing a suit. But if the period remaining is more than three years, no extension can be granted.
10. From the above, it must become abundantly clear that the suit of the plaintiff even if Article 142, Limitation Act were made applicable, is barred by time.
11. In view of our finding on the point of limitation, there was no necessity for us to discuss any other issue but we think that some discussion on the point as to whether the family of which the plaintiff’s father was a member was living in jointness or not, may be made. It is in evidence that the property was acquired in the name of Shiv Ram in the life-time of his father Gopi. There is the statement of Shiv Ram’s widow before the revenue authorities that Shiv Ram was acting as the Manager of the family. It is true that there is m presumption under the Hindu Law that a joint family possesses joint property but if once it is proved or admitted that
family is joint and if any member claims any portion of the property as his separate property, the burden of proof lies on him to show that it was acquired by him in circumstances which would constitute it as his separate property. In Johnston v. Gopal Singh, A. I. R. (18) 1931 Lah. 419 it has been held that:
“the mere foot that the property was purchased in the name of one member of the family and that there are receipts in his name respecting it, does nob render the property his separate property for all that is perfectly consistent with the notion of its being joint.”
12. The plaintiff has produced Girdhari Lal and Ram Labhaya to prove that he was not a member of the joint family. But their statements are so vague and indefinite that the trial Court has rightly discarded this evidence. As against this, the contesting defendants have produced ample evidence including documentary evidence to prove that the plaintiff and his two uncles defendants 3 and 4 were living in jointness. The plaintiff has admitted in the civil suit brought by the firm Baba Shah against defendants 3 and 4 and himself that they were all members of joint family. The City Judge gave a finding with respect to the jointness of the family which was confirmed by the learned District Judge. The admissions of the plaintiff coupled with the other-evidence led in the case makes if amply clear that the family was living in jointness.
13. We, therefore, find that defendants 3 and 4 were as good owners of the land in dispute as the plaintiff himself. The passing of the consideration has been proved by Anant Ram scribe of the document and Dina Nath marginal witness. The consideration of the other sale deed dated 4th Phagan 1991 is proved by Kripa Ram witness. He states that out of the sale proceeds his decree amounting to Rs. 136-12-0 and Bhola Nath’s decree for Rs. 1600 was satisfied. Both these decrees were against the joint family of which the plaintiff had admitted and was proved to be a member. This disposes of the question of legal necessity also, which is held to be proved.
14. In view of the foregoing, we dismiss this appeal with costs.
Wazir C.J.
15. I agree.
