Long possession and failure to challenge within limitation perfected title despite a void guardian sale.

Tarubala Saha claimed title to 4 bigha, 2 katha and 10 lecha of land under registered Sale Deed No. 2912/75/2913/75 dated 18.02.1975, executed by Nagar Ali for himself and as guardian of his minor siblings, who were heirs of Yad Ali.

She pleaded continuous possession from the date of purchase and alleged that the defendants dispossessed her on 15.02.2008 and constructed various structures on the land.

The defendants disputed the sale, contending that Nagar Ali was not the lawful guardian of the minor heirs and had no authority to alienate their shares without a court-appointed guardianship certificate.

The Munsiff No.1, Barpeta partly decreed the suit by declaring the plaintiff’s title and granting recovery of vacant possession, while dismissing the defendants’ counter-claim as barred by limitation.

The first appellate court dismissed the defendants’ appeal and affirmed the decree.

The defendants thereafter preferred the present second appeal under Section 100 of the Code of Civil Procedure.

Whether the Lower Appellate Court committed a grave error of law in holding that the plaintiff had right, title and interest over the suit land despite the sale deed dated 18.02.1975 being void, wholly or partly, under Mohammedan law.

Whether the defendants’ counter-claim seeking declaration of title and cancellation of the sale deed was barred by limitation.

Whether the plaintiff had established possession, dispossession and entitlement to recover khas possession of the suit land.

The Court applied Section 100 CPC, under which interference in second appeal is permissible only on a substantial question of law, and generally does not extend to concurrent findings of fact unless they are perverse or based on material evidence being overlooked.

Under Mohammedan law, succession devolves upon heirs as tenants-in-common and does not create a Hindu-style joint-family or coparcenary; an elder brother is not, merely by virtue of that relationship, the lawful guardian entitled to alienate the property of minor siblings.

A de facto guardian cannot validly sell a minor’s immovable property without lawful authority or court appointment, as recognised in Mohammad Amin v. Vakil Ahmed, AIR 1952 SC 358, and Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin, AIR 1971 SC 2184.

The Court also referred to Section 90 of the Evidence Act, 1872 concerning the presumption relating to execution of ancient documents.

Section 31 of the Specific Relief Act, 1963 and Article 59 of the Limitation Act, 1963 govern suits for cancellation of instruments; Section 27 of the Limitation Act provides for extinguishment of the right to property upon expiry of the limitation period for a possession suit.

The Court relied upon Hamida Begum @ Alo Bibi v. Umran Bibi, 2008 (3) CHN 639, and Sujauddin v. Babasaheb, (2002) 10 SCC 115, on the effect of delay in challenging an alienation and the operation of limitation and Section 27.

The Court held that Nagar Ali was competent to transfer only his own inherited share.

As he was merely the elder brother and not the lawful guardian of the minor co-heirs, the sale deed was void insofar as it purported to convey their shares—described by the Court as 4/5th of the interest—but was not invalid with respect to Nagar Ali’s own share.

Nevertheless, the plaintiff proved that she entered into possession in 1975 and continued to possess and cultivate the land through adhiars.

The oral evidence of the plaintiff’s witnesses was supported by the mutation entry in her favour and by admissions in the defendants’ evidence that the defendants constructed houses only several years before the suit and that the plaintiff’s witnesses had cultivated the land.

The defendants’ assertion that they first discovered the sale deed upon receiving summons was disbelieved.

Since they failed to challenge the transaction within the applicable limitation period after attaining majority or acquiring knowledge, their counter-claim for declaration and cancellation was held time-barred.

Applying Section 27, the Court concluded that the defendants’ rights had been extinguished and that the plaintiff had perfected her title by long, uninterrupted possession and the defendants’ inaction.

The concurrent findings on possession, limitation and title were neither perverse nor unsupported by evidence and therefore did not warrant interference in second appeal.

The Court held that the sale deed was void to the extent it purported to convey the minor heirs’ shares, but valid as to Nagar Ali’s own share; owing to the plaintiff’s established possession and the defendants’ failure to challenge the transaction within limitation, the plaintiff had perfected title over the suit land and was entitled to recovery of possession.

The second appeal was dismissed with costs, the decrees of the trial court and first appellate court were affirmed, and the Registry was directed to draw up the decree and transmit the records to the trial court.