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1908 DIGILAW 60 (CAL)

Musstt. Mesraw v. Girjanundan Tewari

1908-02-19

body1908
JUDGMENT 1. The Plaintiff, Girija Nandan Tewari, sued to have it declared that his maternal grandmother, Musst Ganga Bai, was not competent to alienate property left by her husband without legal necessity and that a sale deed by her, dated 5th May 1872, had been executed without any legal necessity and was void and invalid so far as the Plaintiff was concerned. The Plaintiff farther claimed to be entitled to immediate possession under a deed of surrender in his fovour by Ganga Bai, dated 2nd June 1903. Failing that he prayed for a declaration that he would be entitled to possession on Ganga Bai's death. The Defendants represent the purchasers from Ganga Bai. Ganga Bai was the wife of one Sripat Tewari and they had an only daughter Haro Koer, who was married to Nowrangee Tewarl and had one son, the Plaintiff. Sripat Tewari died before 1872. The alienation by his widow on 5th May 1872 appears to have been made with the assistance of her son-in-law Nowrangee Tewari. The Plaintiff was born in 1881 and attained his majority in April 1899. His mother Haro Koer died in 1893. Ganga Bai is still alive. This suit was filed on 2nd July 1904. 2. Both Courts have found against the deed of surrender of 2nd June 1903. On this finding of fact the suit for recovery of possession fails. The only point which we need consider is whether the suit is barred by limitation, the suit being regarded as one for a declaration that the alienation made by Ganga Bai was void except for her life. The learned Munsif discussed this question at great length, and came to the conclusion that Art. 125 of Sch. II of the Limitation Act 1877 could not apply and that the Plaintiff's suit was not barred. The learned District Judge was of opinion that whether Art. 125 or Art. 120 was applicable, the Plaintiff having sued within six years from the date of his attaining majority was within time. The learned District Judge appears to have overlooked the provision of the last para of sec. 7 which lays down that in the case of a person under disability, the period within which the suit must be instituted cannot be extended for more than 3 years from the cessation of such disability. 3. We are clearly of opinion that the suit is barred. 7 which lays down that in the case of a person under disability, the period within which the suit must be instituted cannot be extended for more than 3 years from the cessation of such disability. 3. We are clearly of opinion that the suit is barred. We think that Art. 125 applies. The suit was one during the life of Ganga Bai, a Hindu female, by the Plaintiff, a Hindu, who if Ganga Bai died at the date of instituting the suit, would be entitled to the possession of the land and it was instituted to have the alienation by her of such land declared void except for her life. It, therefore, corresponds exactly to the suit described by the article. The article prescribes 12 years from the date of alienation and even- if any allowance could be made on account of Plaintiff's minority, he was long out of time. It was argued that it was a hard case, because Plaintiff did not become the next reversioner until the death of his mother Haro Koer in 1893 and that the suit was then already barred. This may be so, but It cannot be an excuse for not reading the article as it stands. It was long ago held by this Court that in such a case the cause of action was not revived in favour of Plaintiff, who had since been born and had now arrived at majority. See Pershad Singh v. Chedee Lall 15 W.R. 1 (1871). This was followed by the Bombay High Court in Chhaganram Astikram v. Bai Motigavri ILR 14 Bom. 512 (1890). It is true that the Allahabad High Court has expressed a different view. [See Bhagwanta v. Sukhi ILR 22 All. 33 (1899)], but it is unnecessary to discuss the question for even if (as the Allahabad Full Bench thought) Art. 120 applied the Plaintiff would still be out of time. Some attempt was made to contend that his right to sue for a declaration accrued from day to day and so the question of limitation did not arise. His Counsel cited the case of Chukkun Lal Ray v. Lalit Mohon Ray ILR 20 Cal, 906 (1893) and in particular some remarks of Ghose, J., at page 925. Some attempt was made to contend that his right to sue for a declaration accrued from day to day and so the question of limitation did not arise. His Counsel cited the case of Chukkun Lal Ray v. Lalit Mohon Ray ILR 20 Cal, 906 (1893) and in particular some remarks of Ghose, J., at page 925. But that was a suit for the construction of a Will and a declaration of Plaintiff's rights under it, a very different case from the one before us. Indeed Ghose, J., excepts from his remarks suits like the present which are especially provided for in the Limitation Act. Supposing Plaintiff's right to sue accrued at his birth, his suit having been instituted more than 3 years after he attained his majority would be out of time. It would be a strange anomaly if a declaratory suit by the next reversioners were barred by statute after a fixed period, while more remote reversioners were altogether exempt from limitation. The Plaintiff is, however, not really prejudiced. His right to declaratory relief may have been lost. He may even owing to his position in his family and the date of his birth never have possessed it. He can still sue for possession if he survives his grandmother. 4. The appeal must be allowed and the Plaintiff's suit dismissed with cost throughout. 5. Judgment in each of appeals Nos. 2504 of 1905, 99 of 1906 and 116 of 1906. These appeals are analogous to appeal No. 2503 of 1905. The question is the same. The Plaintiff's suit is barred by limitation. These appeals are therefore allowed and the suit is dismissed with costs throughout.