LexUTHA MOIDU HAJI versus KUNINGARATH KUNHABDULLA AND ORS.
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A UTHA MOIDU HAJI v. KUNIN GARA TH KUNHABDULLA AND ORS. NOVEMBER 30, 2006 B [S.B. SINHA AND MARKANDEY KA TJU, JJ.] Limitation Act, 1963: Schedule-Article 60-Suit for share in property sold, discarding the C sale-On the ground that on the date of sale deed plaintiff was minor-Held, Article 60 being applicable, suit was barred by limitation-Mohammedan Law-Maternal grandfather-ls not a co-owner of a property. Owner of the suit property died leaving behind his wife and children, D some of whom were minor. One of his children who attained majority on · 30.7.1974 filed a suit on 18.3.1981 stating that his mother, defendant no. 2 and other siblings, defendants no. 3 to 8, had no right to sell his share in the suit property to defendant no. 1, his maternal grand-father, by the sale deed dated 30.8.1963. He claimed his share in the said property discarding the sale deed. The trial court held that in view of Article 60 of E the Schedule to the Limitation Act, 1963, the suit was time barred. The first appellate court held the suit within limitation. The High Court dismissed the second appeal, filed by son of defendant no. 1 holding that defendant no. 1 having become co-owner in the suit property with plaintiff the provisions of Article 65 of the Schedule to Limitation Act would apply. F Aggrieved, the son of defendant no. 1 filed the present appeal. Allowing the appeal, the Court HELD: 1. The trial Judge had not arrived at any finding that the plaintiff came to know of the execution of the said deed of sale on or about G 4.3.1981. Accordingly, the plaintiff would be deemed to have knowledge about the execution of the sale deed on his attaining majority, as soon as he pleaded and proved that his case comes within the purview of the exception contained in the provisions of the Limitation Act. The applicability of the said limitation is not in issue in the suit. The only question H 886 ) .. • UTHA MOIDU HAJI v. KUNINGARATH KUNHABDULLA 887 which fall for consideration before the trial Judge was "whether the provisions A of Article 60 of the Schedule appended to the Limitation Act would be attracted in the facts and circumstances of the case which has been rightly answered by the trial court. The Single Judge of the High Court also, in fact, held that the period of limitation would be either 3 years from the date of attaining majority by the plaintiff or 12 years from the date of execution of the deed of B sale. (892-D, E) Prem Singh and Ors. v. Birbal and Ors., (2006) 5 SCC 353, relied on. 2.1. A grandfather from the mother's side, under the Mohammadan Law, is not a co-owner of a property. Original vendee as a predecessor in C interest of the said property also thus did not become the co-owner of the plaintiff. The expression co-owner presupposes ownership. If the contention of the plaintiff-respondent that the vendee did not acquire any interest in the property so far as plaintiff is concerned is correct, the question of his becoming co-owner of the property by reason of the said deed of sale or otherwise would not arise. When a person enters into D possession of a land under a void or voidable transaction, his possession becomes adverse from the date he comes in possession. The concept of co- owner, therefore, has not been correctly applied in the peculiar facts and circumstances of this case. It was also not a case where the vendor held the property in suit in trust for the plaintiff. (893-E-G; 894-B) E Jagannath Manvari and Ors. v. Mst. Chandni Bibi and Anr., AIR (1921) Cal. 647, referred to. 2.2. The issue as to whether the appellant or his predecessor-in- interest became indefeasible owner of the property in the light of Section F 27 of the Limitation Act, was never made an issue. The plaintiff-respondent cannot raise a contention for the first time before the High Court or before this Court that the appellant's claim that he had acquired indefeasible title would be hit by Article 65 of the Limitation Act. [892-C) 3. Accordingly, the judgment of the High Court as also the first G appellant court are set aside and that of the trial judge is restored. [894-CI CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4811 of2000. From the final Judgment and Order dated 17.6.1998 of the High Court H 888 SUPREMf: COURT REPORTS [2006] SUPP. 9 S.C.R. A of Kerala at Emakulam in S.A. No. 8/1991. B P. Krishnamurthy and Rajiv Mehta for the Appellant. T.L.. Vishwanatha Iyer,
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