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2008 DIGILAW 1463 (BOM)

Gurnath Rangnath Mali v. Arun Nagorao Potdar

2008-10-07

R.M.BORDE

body2008
JUDGMENT:- This is an appeal by original defendant nos.6 to 13 raising challenge to the judgment and decree passed by the learned Civil Judge, Jr. Dn., Ausa in Regular Civil Suit No.27/78 decided on 15-3-1982 which decree has been confirmed in Regular Civil Appeal No.78/1982 decided by the District Judge, Latur on 29-11-1988. 2. Respondent/original plaintiff instituted suit against his father, mother and purchaser of the property seeking declaration that he is owner of the suit property on the strength of the will-deed executed by his grand father Dinanath and for declaration to the effect that alienation made by defendant no. 1 in favour of other defendants is not binding on him. Plaintiff further claims possession of the property alienated by defendant no. 1 his father. According to plaintiff, property belonged to his grand father Dinanath. Dinanath during his life time had executed a will-deed bequeathing the property to plaintiff. His grand father Dinanath died in the year 1960. Plaintiff did not have knowledge of execution of will-deed by Dinanath and he gained knowledge in respect of execution of will-deed on 6-10-1976. Thereafter he proceeded to file suit seeking reliefs as stated above. It is the contention of plaintiff that his father - defendant no. 1 had no authority to transfer the properties which were bequeathed in his favour by his grandfather. Alienation made by his father does not bind his interest and as such is liable to be set aside. 3. Defendant no. 1 - father of plaintiff inspite of service of summons remained absent and suit proceeded ex-parte against him. Defendant nos.3 to 6 and defendant no. 14 resisted the suit by filing written statement. Apart from denying the contentions raised by plaintiff in the suit, objection was raised in the written statement to the effect that claim is raised beyond prescribed period of limitation. 4. In order to appreciate the controversy involved in the matter, it is necessary to take into consideration some admitted or proved facts. Date of birth of plaintiff is 24-12-1953. Although plaintiff contends that he was born on some different date, however, there is finding of fact recorded by courts below that plaintiff was born on 2412-1953. Plaintiff as such attained majority on 24-12-1971. The suit has been instituted by plaintiff on 30-11-1976. So far as instant second appeal is concerned, issue is restricted only so far as alienation made by defendant no. Plaintiff as such attained majority on 24-12-1971. The suit has been instituted by plaintiff on 30-11-1976. So far as instant second appeal is concerned, issue is restricted only so far as alienation made by defendant no. 1 in favour of defendant nos. 6 to 13 in respect of house property bearing no. 1584. Alienation had taken place on 24-12-1963. Considering the facts enlisted above, the only question that is canvased in the second appeal before me is in respect of limitation for presenting the suit by plaintiff. 5. Trial court while considering the issue of limitation has held in favour of plaintiff and has recorded finding that suit is within limitation on the consideration of following facts: Date of birth of plaintiff is 24-3-1953 and the suit is presented on 30-11-1976. Trial court while dealing with issue no. 4 proceeded to record that on the date of presentation of suit age of plaintiff was about 23 years which shall mean the suit is filed within three years after attaining majority. Presumably, the trial court has taken into account 21 years as the age of attaining majority. The first appellate court while dealing with the issue in respect of limitation has recorded that Article 65 of the Limitation Act is attracted in the instant matter and the suit which is presented within 12 years shall be presumed to have been filed within prescribed period of limitation. 6. I have perused the judgment recorded by the courts below and heard arguments advanced by learned counsel for the respective parties. After hearing learned counsel appearing for the parties, I find that following substantial questions of law arise for consideration in the appeal: "1. Whether the suit presented by plaintiff can be treated to have been filed within prescribed period of limitation ? 2. Whether in the facts and circumstances of the case, suit claim raised shall be governed by Article 60 of the Limitation Act and as to whether the finding recorded by first appellate court to the effect that Article 65 is attracted to the facts and circumstances of the case is legal and proper? 3. 2. Whether in the facts and circumstances of the case, suit claim raised shall be governed by Article 60 of the Limitation Act and as to whether the finding recorded by first appellate court to the effect that Article 65 is attracted to the facts and circumstances of the case is legal and proper? 3. Whether in the facts and circumstances of the case in accordance with provisions of section 6 of the Hindu Minority and Guardianship Act, transaction shall be treated to be voidable and therefore claim has to be instituted within 3 years in accordance with Article 60 of the Limitation act or as to whether the impugned transaction can be treated to be void thereby attracting article 65 of the Limitation Act." 7. So far as observation made by the trial court holding that the suit presented on attaining age of 23 years by plaintiff shall be treated to have been presented within prescribed period of limitation, appears to be in conflict with the provisions of section 3 of the Indian Majority Act. Section 3 of the Act prescribes 18 years as the age in respect of attainment of majority. For convenience it would be useful to refer to provisions of section 3 of the Indian Majority Act. "3. Age of majority of persons domiciled in India: Subject as aforesaid, [every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age] shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty one years and not before. Subject as aforesaid, every other person domiciled in [India] shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before. " On perusal of provisions of the Act, finding recorded by trial court on the face of it appears to be incorrect. Subject as aforesaid, every other person domiciled in [India] shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before. " On perusal of provisions of the Act, finding recorded by trial court on the face of it appears to be incorrect. Taking into account date of birth of plaintiff as 24-12-1953, it has to be assumed that he has attained majority on 2412-1971 on completion of 18 years of age. The suit presented by plaintiff in the year 1976 therefore cannot be considered to have been filed within three years from the date of plaintiff's attainment of majority. 8. It would be appropriate to refer to provisions of section 8 of the Hindu Minority and Guardianship Act. Section 8 deals with the powers of natural guardian. Powers vested with the natural guardian in respect of alienation have to be exercised with previous permission of the court and in view of section 8(3) disposal of immovable property by natural guardian in contravention of sub-section (1) or (2), is voidable at the instance of the minor or any person claiming under him. 9. Turning to the facts of the present case, it is the defendant no.1 who is the natural guardian of plaintiff and has alienated the suit property. Alienation made by defendant no. 1 therefore is voidable at the instance of minor. Plaintiff is entitled to initiate action for setting aside alienation within three years on attaining majority. Recourse can be had to provisions of section 8 of the Limitation Act which prescribes thus: "8. Special exceptions - Nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application." Section 6(1) of the Limitation Act prescribes thus: "6. Legal disability – (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefore in the third column of the Schedule." Period of limitation thus can be stated to have been extended until expiration of three years as provided under section 8 after cessation of disability of plaintiff i.e. after he attains majority. 10. In the case in hand, plaintiff shall be treated to have attained majority on 24-121971. Question is posed as to applicability of Article 65 of the Limitation Act. The first appellate court has recorded finding that the suit is governed by Article 65 of the Limitation Act. Article 65 provides thus: 65.For possession of immovable property or any interest therein based on title. Twelve years - When the possession of the defendant becomes adverse to the plaintiff." It would also be proper to refer to provisions of Article 60(a) of the Limitation Act which provides thus:"60. To set aside a transfer of property made by the guardian of a ward (a) by the ward who has attained majority; - Three years - When the ward attains majority." 11. Learned counsel for the appellant has vehemently contended that the suit is not governed by Article 65 of the Limitation Act and shall have to be treated as being governed by Article 60 of the Limitation Act. According to learned counsel for the appellant, suit is instituted by plaintiff on premises that title vests in him and that alienation made by his father natural guardian does not bind him. Article 60 of the Limitation Act prescribes limitation of three years for instituting the suit by ward on his attaining majority for setting aside alienation of property. Plaintiff in the instant suit is claiming relief in respect of setting aside alienation as well as possession of the property. Suit therefore shall be treated to have been governed by Article 60 of the Limitation Act. Plaintiff in the instant suit is claiming relief in respect of setting aside alienation as well as possession of the property. Suit therefore shall be treated to have been governed by Article 60 of the Limitation Act. It is to be noted that case put up by plaintiff comes within the purview of section 8(3) of the Hindu Minority and Guardianship Act and alienation made by his natural guardian is voidable at his instance. In the matters wherein transaction is by a defacto guardian, provisions of section 11 are attracted and such transaction shall have to be considered as void. In respect of transactions which are in its very nature void, no declaration to that effect is necessary and the suit claiming possession shall be governed by other provisions, of Limitation Act. In the case where transfer is of voidable nature at the instance, of minor, provision of Article 60 of the Limitation Act is attracted and action has to be instituted by plaintiff within three years of his attainment of majority. 12. Learned counsel for the appellant has relied upon judgment reported in (Vishwambhar Vs. Laxminarayana), 2001(4) BCR 308 : [2001(4) ALL MR 287 (S.C.)]. In the reported judgment the claim in respect of setting aside alienation raised made by the plaintiff therein by seeking permission to amend plaint, after 5 years from presentation of the suit. It was contended by defendants therein that claim raised is beyond prescribed period of limitation. Apex court while considering the matter has held that in view of provisions of Article 60 of the Limitation Act, prescribed period of limitation for raising claim is three years and as such claim raised by plaintiff seeking relief in respect of setting aside sale was beyond prescribed period of limitation. Learned counsel for the appellant has further contended that alienation made in favour of defendant is dt. 24-12-1963 whereas suit is presented by plaintiff on 30-11-1976. Even assuming that provisions of Article 65 are attracted, the claim is barred by time. Plaintiff attained majority on 24-12-1973. Period prescribed for raising claim even if the period of limitation is considered to be 12 years has lapsed in the year 1975. The suit instituted by plaintiff on 30-11-1976 therefore shall have to be constrained to have been filed beyond prescribed period of limitation. Plaintiff attained majority on 24-12-1973. Period prescribed for raising claim even if the period of limitation is considered to be 12 years has lapsed in the year 1975. The suit instituted by plaintiff on 30-11-1976 therefore shall have to be constrained to have been filed beyond prescribed period of limitation. Even after taking into account provisions of section 8 of the Limitation Act, suit cannot be considered to have been filed within limitation. In this view of the matter, section 8 of the Limitation Act also does not come for help of the plaintiff. It is therefore contended that the suit shall have to be treated to have been presented beyond prescribed period of limitation. 13. As discussed above, I am of the considered view that provisions of Article 65 of the Limitation Act are not attracted to the facts of the present case and the suit shall be treated to be governed by Article 60 of the Limitation Act. In this regard reliance can be placed on judgment delivered by this court in the matter of Premchand Chandanmal Soni Vs. Dasru Hari and another reported in 1983 Mh.L.J. 312. In the reported judgment at a partition of the joint family property between father and his son, certain land had fallen to the share of son who was minor. During minority of the son father had alienated the property. Date of birth of minor was 16-5-1947 whereas suit was presented by him impeaching the alienation made by his father on 1-7-1968. Objection was raised on behalf of defendant in that matter that suit would be governed by Article 60 of the Limitation Act and provisions of Article 65 are not attracted. While considering the issue this court observed thus: "Held, that in view of provisions of section 8(3) of the Hindu Minority and Guardianship Act, the sale by the father was voidable. Consequently that sale had to be set aside and therefore such a suit was required to be filed in view of Article 60 within three years from the date of attaining majority. An alienation made by the father during the minority of the son has got to be set aside by the son on attaining majority. Consequently that sale had to be set aside and therefore such a suit was required to be filed in view of Article 60 within three years from the date of attaining majority. An alienation made by the father during the minority of the son has got to be set aside by the son on attaining majority. Inasmuch as the sale was voidable the plaintiff could not straightway file a suit for possession ignoring the sale and therefore not Article 65 but Article 60 was applicable to such a claim. The claim, therefore, was clearly barred by time and the plaintiff could not be granted any relief." 14. Thus suit is presented beyond described period of limitation and therefore no relief can be granted in favour of plaintiff. The Courts below have not considered the matter in its proper perspective. Trial court has recorded in the judgment that plaintiff after attaining majority in the year 1976 got knowledge of the will deed and thereafter rushed to present the suit. Date of gaining knowledge in respect of execution of will deed cannot be considered as circumstance extending period of limitation. Suit presented by plaintiff within three years from the date of gaining knowledge in respect of execution of will deed therefore cannot be held to be presented within prescribed period of limitation. In my view therefore, appeal reserves to be allowed and the same is accordingly allowed. Judgment and decree passed by the Civil Judge, Jr. Dn. Ausa on 15-3-1982 in Regular Civil Suit no. 27/78 confirmed by the District Judge, Latur in Regular Civil Appeal no.78/82 is quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs. 15. Pending civil application, if any, stands disposed of. Appeal allowed.