Case Note & Summary
This second appeal arose from a dispute over ancestral property in Pune, where the original plaintiffs (Respondent Nos.1 to 6) and the original defendant no.2 were members of a Hindu joint family claiming through deceased Narayan. The property stood in Narayan's name until his death on 04.01.1965, after which defendant no.2 Suresh acted as Karta/Manager. The appellant (original defendant no.1) purchased the suit property from Suresh by a registered sale deed dated 08.02.2001. The plaintiffs came to know of the alienation only upon receiving a Talathi notice dated 28.01.2002 about a proposed mutation entry. They filed Regular Civil Suit No.145 of 2005 on 28.01.2005 seeking a declaration that the sale deed was not binding on them, alleging that the Karta had sold ancestral property without legal necessity or consent. The trial court by judgment dated 08.11.2011 decreed the suit, holding that the sale deed was not binding and the suit was filed within limitation. The first appellate court by judgment dated 01.04.2016 in Civil Appeal No.718 of 2011 confirmed the decree, finding no legal necessity and no limitation bar. In the High Court, the appellant purchaser argued that the suit was barred by limitation because Article 59 could not apply without the notice being produced, that Article 110 applied to enforcement of a right to share and not to a mere declaration, and that even if the sale was invalid as to the other coparceners, it should stand to the extent of the Karta's share. The respondents supported the concurrent findings, contending that the suit was within three years of knowledge, that Article 110 was inapplicable because stranger's rights had intervened, and that the entire sale deed was void for want of legal necessity. The High Court found no substantial question of law. It held that the limitation issue was a question of fact concurrently found against the appellant; no cross-examination on limitation had been conducted and the date of knowledge was admitted. Applying Section 12(1) of the Limitation Act, 1963, the court excluded the day of receiving the Talathi notice, making the suit filed on 28.01.2005 within three years under Article 59. The court also held that Article 110 did not apply because, as held in Parmeshwari Devi, when rights of strangers intervene Article 110 is not applicable, and the plaint did not seek partition or share. On the validity of the sale, the court noted that the Karta had not claimed the property as self-acquired and had remained ex-parte; the appellant purchaser admitted not verifying mutation entries or taking consent of other legal heirs, supporting the finding of no legal necessity. Consequently, the High Court dismissed the second appeal and affirmed the judgments and decrees of the courts below, maintaining that the sale deed dated 08.02.2001 was not binding on the plaintiffs.
Headnote
A) Limitation - Applicability of Article 59 and Article 110 - Limitation Act, 1963, Section 12(1), Article 59, Article 110 - Suit for declaration that a sale by Karta is not binding on coparceners filed within three years from the date of knowledge of alienation; the date from which period is to be reckoned excluded under Section 12(1) - The court held that no questions about limitation were put to the plaintiff's witness and the dates of notice and filing were admitted; because the day of receiving notice was excluded, the suit filed on 28.01.2005 was within limitation under Article 59. Article 110 was held not applicable because third-party rights had intervened and the plaint did not seek partition or share. Held that the concurrent finding on limitation required no interference (Paras 11-13). B) Hindu Joint Family - Alienation by Karta - Legal Necessity - Hindu Law - A Karta's sale of ancestral property without legal necessity and without consent of other coparceners is not binding on them; purchaser cannot retain even the Karta's share without claiming partition - The trial and appellate courts found no legal necessity and no disposing capacity of the Karta, who remained ex-parte; the appellant purchaser admitted he did not inspect mutation entries or take consent of other legal heirs. The High Court upheld these concurrent findings and dismissed the appeal. Held that the sale deed dated 08.02.2001 was not binding on the plaintiffs (Paras 3, 14-15). C) Civil Procedure - Second Appeal - Substantial Question of Law - Code of Civil Procedure, 1908, Section 100 - Concurrent findings of fact on limitation and legal necessity do not raise a substantial question of law for a second appeal - The High Court after examining the record held that the findings of the courts below on limitation and legal necessity were based on evidence and no substantial question of law arose; the second appeal was dismissed. Held that interference under Section 100 CPC was not warranted (Paras 10-12).
Issue of Consideration
Whether the suit filed on 28.01.2005 was within limitation under Article 59 of the Limitation Act, 1963 despite notice received on 28.01.2002; Whether Article 110 of the Limitation Act, 1963 was applicable; Whether sale deed by Karta without legal necessity or consent was binding on plaintiffs; Whether any substantial question of law arose in second appeal.
Final Decision
Second Appeal dismissed; concurrent judgments and decrees confirmed; sale deed dated 08.02.2001 held not binding on plaintiffs; suit held within limitation under Article 59; no substantial question of law.
Law Points
- A suit for declaration that sale by Karta is not binding is governed by Article 59 of Limitation Act
- 1963
- date of knowledge excluded under Section 12(1)
- Article 110 not applicable when third-party rights intervene
- concurrent findings on limitation and legal necessity do not raise substantial question of law
- sale by Karta without legal necessity not binding.
