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Ganesh Shankar Kulkarni Vs. Janakibai Krishnaji Kulkarni and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 954 of 1967 with Civil Appeal No. 3140 of 1975
Judge
Reported inAIR1977Bom269
ActsLimitation Act, 1908 - Sections 2(7), 4, 14 and 14(2); Transfer of Property Act - Sections 41; Code of Civil Procedure (CPC), 1908 - Sections 80 - Order 34, Rules 1 and 4
AppellantGanesh Shankar Kulkarni
RespondentJanakibai Krishnaji Kulkarni and ors.
Appellant AdvocateK.J. Abhyankar and ;N.D. Hombalkar, Advs.
Respondent AdvocateV.V. Albal, ;M.L. Pendse and ;H.D. Gole, Advs.
Excerpt:
.....in view of the decision of the privy council reported in maqbul ahmad v. --in computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. ' section 2 (7) defines 'good faith' as under: --nothing shall be deemed to be done in good faith which is not done with due care and attention. the one under section 4 is more formidable than the one under section 14. the lower appellate court has examined this..........limitation act, 1908. section 4 provides: --'where the period of limitation prescribed for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the court reopens.'section 14 (2) provides:--'in computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.'section 2 (7) defines 'good faith' as.....
Judgment:

Aggarwal, J.

1. This second appeal against the decision of the learned District Judge, Kolhapur, has been referred to Division Bench by a learned Single Judge as, in his opinion, it involves important questions, particularly as regards the joinder of proper parties and limitation under Sections 4 and 14 of the Limitation Act, 1908. Principally, this appeal involves the point of limitation and in order to appreciate the same, it is necessary to trace the history of the litigation.

2. It is common ground that the land in suit bearing Regular Survey No. 386 admeasuring 22 acres and 39 gunthas originally belonged to Shri Swami Jagatguru Matha Karvir and Sankeshwar. By a Sanad of Margashirsha Vad 3, Shake 1756, His Holiness granted it in Inam to Hari Ballal. Hari Ballal had two sons named Bhavanrao and Antaji. Bhavanrao died before 1892 leaving behind his widow Ramabai. Antaji had two sons named Hari and Krishnaji. Hari had a son named Shankar and wife named Radha. Hari died in 1927. In 1892 Shankar was taken in adoption by Ramabai widow of Bhavanrao. Antaji's other son named Krishnaji died in 1955 leaving behind Jankibai, original defendant No. 1, who died in 1961. The said land which was originally Inam land was converted into Rayatava in Fasli 1356.

3. On 3rd May, 1888, Bhavanrao created a mortgage in respect of the said Survey No. 386 by a registered deed, Ex. 95. The entire property was mortgaged to Shivram Pujari for Rs. 750. The period stipulated was 10 years. The mortgage-deed provided that the mortgagee was to pay Rs. 156 per annum out of the usufruct to the mortgagor and to appropriate the balance towards the claim of interest on the mortgage amount of Rs. 750. The mortgagee was to redeem the property at any time after 10 years by paying Rs. 750/-. The mortgagee was put in possession immediately. The mortgagee Shivaram Pujari, however, assigned his right, title and interest to Krishnaji Tankasale and his son Vasudeo by two different deeds dated 8th June 1894 and 7th September 1898, being Exs. 96 and 97 respectively, for a consideration of Rs. 500 and Rs. 250 respectively. Shivaram Pujari parted with possession and Krishnaji Tankasale and his son Vasudeo entered into possession and undertook to abide by the old terms and in particular to pay Rs. 156 to Bhavanrao, the mortgagor.

4. Thereafter, Krishnaji Antaji filed Civil Suit No. 402 of 1939 in the Court of the Subordinate Judge at Shirol against Shivaram Pujari and Krishnaji Tankasale and his son Vasudeo for redemption and possession of the said property. On 25th February 1943, he obtained a decree and the mortgagees were directed to pay Rs. 101 and to surrender possession. The mortgagees preferred an appeal to the District Court, Kolhapur, and that Court confirmed the said decree on 31st January 1945. Against that decree, the mortgagees preferred Second Appeal No. 27 of 1946 in the Joint High Court for Kolhapur and Deccan States. The High Court modified the decree by relieving the mortgagees of their liability to pay Rs. 101 to the mortgagors. Krishnaji Antaji thereafter executed the decree by filing a Darkhast and obtained possession on 22nd April 1946.

5. Krishnaji Antaji, however, proceeded to alienate the said property. He sold half of the property to defendant No. 2 and his brothers under a registered sale-deed dated 18th September 1946 (vide Ex. 122). Defendant No. 2 sold 3 acres out of their portion to Nayaku Gavade on 16th March 1955 under a registered sale-deed, Ex. 160. There were further alienations in favour of defendants Nos. 5 to 8 ( vide Exs. 140 to 144) during the period 1949 to 1952.

6. The original plaintiff Shankar claiming to be an adopted son of Bhavanrao, the original mortgagor, instituted the present suit on 4th June 1958 for redemption, partition and possession of his half share. This suit was originally instituted in the Court of the Civil Judge, Senior Division, Kolhapur, being Special Suit No. 38 of 1958, on the reopening of the Courts, although the period prescribed for institution of such a suit was over on 3rd May 1958. The suit was valued at Rs. 15,000 for the purpose of jurisdiction on the basis of the market value of the property at Rupees 12,000. However, on 10th August 1959, the original plaintiff Shankar applied for amendment of the plaint reducing the value of the suit to Rs. 1,875. This application was allowed on 14th August 1959 and the plaint was ordered to be returned for presentation to the proper Court. According to the plaintiff, the plaint was handed over at 6 p.m. on 14th August 1'959. 15th and 16th August 1959 were holidays. On 17th August 1959, Shankar presented the plaint to the Court of the learned Civil Judge, Junior Division, Jayasingpur, and the suit was numbered as Regular Civil Suit No. 126 of 1959. Original defendant No. 1 Janakibai wife of Krishnaji had died in 1961 and, therefore, her heirs were brought on record as defendants Noa 1-a to 1-c. Defendants Nos. 2 to 8 are the various purchasers and defendant No. 9 is one of the tenants on the suit property.

7. Defendants Nos. 2 to 8 and the legal representatives of defendant No. 1 resisted the claim mainly on the grounds that the plaintiff had no right to sue. his adoption was not admitted by them and even otherwise, in the family partition, the suit land was allotted to the share of the other branch of Bhavanrao's brother Antaji. These defendants also set up the plea of adverse possession. Defendants Nos. 2 to 8 claimed protection of Section 41 of the Transfer of Property Act on the ground that they were bona fide purchasers for value without notice. They pleaded that the suit was barred by the law of limitation.

8. The learned Civil Judge, Junior Division, Jayasingpur, by his judgment and order dated 30th April 1965, dismissed the suit with costs, holding that the plaintiff had failed to prove that the suit property was kept joint at the time of the partition between Bhavanrao and Antaji and that the defendants proved that they had become owners of the. suit land by adverse possession and that they were bona fide transferees for value without notice.

9. It may be- noted that during the pendency of the said suit, the suit came to be dismissed for default on 7th June 1961. The original plaintiff Shankar made an application on 5th July 1961 for restoration. Shankar, however, died on 22nd August 1961. On 1st September 1961, his son Ganesh and his mother Parvatibai made an application for bringing their names on record as the heirs of Shankar. On 6th June 1963, they made an application, whereby they wanted to bring the names of the other two heirs Sitaram and Narsinha, the sons of the daughter of Shankar, on record. This application was granted on 3rd June 1964.

10. Being aggrieved of the said judgment and decree, Ganesh filed Civil Appeal No. 254 of 1965 in the Court of the learned District Judge, Kolhapur, and in the memo of appeal he stated that the heirs Nos. 1 (b), 1 (c) and 1 (d) of the deceased plaintiff Shankar had not been impleaded as their names had already been deleted in the trial Court. 1 (b) was Parvatibai, 1 (c) is Sitaram and 1 (d) is Narsinha. The learned District Judge, by his judgment dated 15th December 1966, dismissed the appeal with costs, holding that the plaintiff proved his right to redeem the. suit property and that the defendants failed to prove that they had become owners by adverse possession and that defendants Nos. 2 to 8 were bona fide purchasers for value without notice. The learned District Judge also held that the suit was barred by the law of limitation.

11. In the present appeal, Mr. Pendse, the learned counsel appearing for defendants Nos. 2 and 3 (a) to 3 (d), has raised two preliminary objections. Firstly, Shankar having died on 22nd August 1961, all the four legal representatives made an application for being brought on record and that application was granted on 3rd June 1964, and they went for a trial of the suit and the suit is now dismissed against all the four. The three legal representatives, namely, Parvatibai, Sitaram and Narsinha, not having filed the appeal, the decree has become final against them. They were not joined as respondents in the District Appellate Court and the same position has continued in the present second appeal. According to Mr. Pendse, having regard to the provisions of O. 34, R. 1, C.P.C., all persons having an interest either in the mortgage security or in the right of redemption are required to be joined as parties to any suit relating to the mortgage, and since this rule is not complied, the suit must fail. Mr. Pendse further pointed out that the present Civil Application No. 3140 of 1975 filed by the present appellant for bringing the names of Sitaram and Narsinha on record cannot be allowed as they were not parties before the District Appellate Court. The appellant has deliberately made an incorrect statement in the memo of appeal that their names had been deleted in the trial Court, as there is nothing on record to support that statement. Secondly, respondent No. 5-E Sidubai wife of Sidu Dhangar had been brought on record along with respondents Nos. 5-A to 5-D by order dated 7th April 1975 passed in Civil Application No. 2748 of 1974. As against her, the appeal stands dismissed for want of prosecution pursuant to the order of the learned Registrar dated 25th February 1975 and, therefore, there is a decree in favour of respondent No. 5-E. In these circumstances, having regard to the provisions of O. 34, R. 4, C.P.C. there would be a conflicting decree if the appellant's case is accepted.

12. On the other hand, Mr. Abhyan-kar, learned counsel for the appellant, sought to repel these preliminary objections on the ground that by virtue of a registered deed of partition dated 16th November 1961, the suit land had fallen to the share of the appellant along with other land, and in these circumstances, Parvatibai, Sitaram and Narsinha were not interested in the present litigation. Thereafter, an application for deleting their names on the ground that they had no interest in the property was prepared and as far as the appellant recollected, it was presented to the Court, and subsequently the names of Parvatibai, Sitaram and Narsinha were deleted. But unfortunately the order is not traceable on the record. Mr. Abhyankar submitted that Parvatibai died in the meantime and Sitaram and Narsinha had no interest in the property under redemption and, therefore, O. 34, R. 1, C.P.C. is not attracted. As regards the second objection, he submitted that the estate would be represented by the remaining respondents Nos. 5-A, 5-B, 5-C and 5-D, even though the appeal as against respondent No. 5-E is dismissed for want of prosecution. The learned counsel pointed out that respondent No. 5-E could not be served as the report of the Bailiff dated 22nd November 1974 showed that respondent No. 5-E had died 3 to 4 months prior to 22nd November 1974. The application for bringing the heirs of respondent No. 5 was decided on 7th April 1975 and, therefore, respondent No. 5-E had died prior to the said application.

13. In our opinion, it is not necessary to decide these preliminary objections in view of the fact that the appeal can be disposed of on the pure question of law - whether the suit is barred bv law of limitation or not. We have noticed that the date of the mortgage is 3rd May 1888. The period stipulated in the mortgage-deed was 10 years and, therefore, the last date for redemption was 3rd May 1958. On 3rd May 1958, the summer vacation had commenced and the Court reopened on 4th June 1958. The original plaintiff filed the plaint on 4th June 1958. The plaint was ordered to be returned on 14th August 1959 for presentation to the proper Court. 15th and 16th August 1959 were holidays and, therefore, the plaint was presented in the proper Court on 17th August 1959. The question, therefore, is whether the appellant could be entitled to the benefit of Section 4 of the Limitation Act, 1908, as well as to the benefit of Section 14. The legal position is well settled in view of the decision of the Privy Council reported in Maqbul Ahmad v. Onkar Pratap Narain Singh , and a decision of this Court reported in Karim Ismail v. Abdul Rehiman : AIR1953Bom353 . This view has also been confirmed by the Supreme Court in Amar Chand V. Union of India : [1973]2SCR684 .

14. Counsel for the appellant contends that in the first place, the period during which the suit was pending in the Court of the Civil Judge, Senior Division, Kolhapur, should be excluded. Secondly, the vacation period from 3rd May 1958 to 4th June 1958 should be excluded, and thirdly, the two holidays falling on 15th and 16th August 1959 are to be excluded. According to the appellant's counsel, the relevant sections permitting the exclusion of these periods are Section 4 and Section 14 (2) of the Indian Limitation Act, 1908. Section 4 provides: --

'Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court reopens.'

Section 14 (2) provides:--

'In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.'

Section 2 (7) defines 'good faith' as under:--

'Nothing shall be deemed to be done in good faith which is not done with due care and attention.'

15. In order to succeed, the appellant has to cross both the rivers. The one under Section 4 is more formidable than the one under Section 14. The lower Appellate Court has examined this issue at length and observed that the very definition of the expression 'good faith' postulates that the plaintiff has to convince the Court that he has exercised due care and attention, but the plaintiff has not alleged any ground nor led evidence. The burden of bringing the case within the four corners of Section 14 is on the plaintiff and he has to discharge the same. It is further observed that the argument that the point involved was of law and the change in the claim for the purposes of jurisdiction was made on legal advice cannot be taken to establish good faith and due diligence. The circumstances pleaded before us for claiming exclusion of the period between 4th June 1958 and 14th August 1959 were the same as urged before the lower Appellate Court. In our opinion, both the lower Courts have taken the correct view. The appellant has failed to show that he had been prosecuting the suit in the Court of the Civil Judge, Senior Division, Kolhapur, with due diligence and prosecuted the suit in good faith in that Court, in the sense in which the expression 'good faith' is defined. The appellant is not entitled to the exclusion of the period from 4th June 1958 to 14th August 1959,

16. The next period for exclusion is the summer vacation from 3rd May 1958 to 4th June 1958. This period is governed by Section 4. Their Lordships of the Privy Council in Maqbul Ahmad v, Onkar Pratap Narain Singh have stated that there is a marked distinction in the scope and purpose of Sections 4 and 14. The language employed in Section 4 indicates that it has nothing to do with computing the prescribed period. In interpreting Section 4, it is observed:--

'What it provides is that, where the period of limitation prescribed expires on a day when the Court is closed, the application may be made on the day when the Court reopens. In their Lordships' view that means the proper Court in which the application ought to have been made.....'

17. In Karim Ismail v. Abdul Rahi-man : AIR1953Bom353 , the same view has been adopted consistent with the view taken by Madras, Lahore, Calcutta and Nagpur High Courts since 1916. In that case, Abdul (plaintiff-respondent) filed a suit against Karim in the Court of the Civil Judge, Junior Division, at Alibag, to recover a sum of Rs. 6,900 alleged to be due as a balance of a loan of Rs. 10,000 made on 23rd May 1944. The suit, which should have been instituted on 23rd May 1947, came to be instituted on 9th June 1947 as the Court was closed for summer vacation till 8th June 1947 and reopened on 9th June 1947 when the plaint was presented. The learned trial Judge on 11th July 1947 held that he had no .jurisdiction to entertain the suit and he returned the plaint for presentation to the proper Court. On 12th July 1947, the plaintiff accordingly filed the plaint in the Court of the Civil Judge, Senior Division, Thana. On these facts, following the Privy Council ruling referred to above, this Court came to the conclusion that the plaintiff cannot claim the exclusion of the vacation period from 23rd May 1947 to 8th June 1947, as he had approached the wrong forum or Court. However, he was entitled to the exclusion of the period taken in litigating the matter in the Court of the Civil Judge, Junior Division, at Alibag, till the plaint was returned to him for presentation to the, proper Court under Section 14 of the Indian Limitation Act, 1908. The facts of our case are almost similar to that case.

18. The same view has been confirmed by the Supreme Court in the case of Amar Chand v. Union of India : [1973]2SCR684 . In that case, the plaintiff sustained serious injuries in a train accident while travelling by 2 Down Passenger train from Ambala Cantt. to Delhi on the night between 31st December 1957 and 1st January 1958. The suit was filed in the Court of the Senior Sub-Judge of Karnal on 2nd March 1959 (after giving notice under Section 80, C.P.C.) as on 1st March 1959 the Court was not open. For ministerial purposes, the suit was transferred to the Court of the Sub-Judge, Panipat. The Panipat Court, by an order dated 28th October 1359, returned the plaint for presentation to the proper Court as, according to the Panipat Court, the injury was committed at Mohri Railway Station outside the territorial jurisdiction of the Panipat Court. Thereafter, the plaintiff presented the plaint on 29th October 1959 in the Court of Senior Sub-Judge, Ambala (referred to as the 'trial Court' in the judgment) together with an application under Section 14 of the Limitation Act for exclusion of the period during which the suit was prosecuted in Karnal and Panipat Courts. Their Lordships of the Supreme Court declined to give the benefit of Section 4 for the reason that Karnal Court was not the proper Court in which the suit should have been filed. After referring to the decision of the Privy Council in Maqbul Ahmad's case . Their Lordships made the following observations at page 315:--

'If the plaintiff had filed the suit in the trial Court on March 2, 1959, then, certainly the suit would have been within time under Section 4, as that was the proper Court in which the suit should have been filed. As the Karnal Court had no jurisdiction to entertain the plaint, it was not the proper Court.....'

19. Bearing the above legal position in mind, it is clear that the appellant before us cannot take the benefit of Section 4, for he had first gone to a wrong forum. It is only when a plaintiff initially brings the suit in a proper Court that he can take benefit of Section 4. If a suit is brought in a proper Court which has pecuniary and territorial jurisdiction to entertain and try the suit, then the advantage offered by Section 4 can be availed of. In the case before the Supreme Court, the plaint was returned by the Panipat Court as it did not have the territorial jurisdiction to try the suit. In our case and in the case reported in : AIR1953Bom353 , the question was one of pecuniary jurisdiction. In the present case, the pecuniary jurisdiction was that of Jayasingpur Court in view of the new valuation given by the appellant by amending the plaint and reducing the value of the suit for the purposes of jurisdiction from Rs. 15,000 (Rs. 12,000 market value of the property and Rs. 3,000 mesne profits) to Rs. 1,875 on the basis that the appellant was entitled to redeem half of the property (Rs. 375 half of the mortgage security of Rs. 750) and Rs. 1,500 for past mesne profits. It is unfortunate that in the beginning the appellant wrongly valued his claim for the purposes of jurisdiction and thus chose a wrong forum. His attempt to set his house in order could not bear fruit for him. It fa a case of 'from the frying pan into the fire'. Therefore, once he cannot exclude the period of the summer vacation under Section 4, the suit clearly becomes barred by limitation. Both the trial Court and the lower Appellate Court were right in their findings that the suit is barred by limitation. In these circumstances, it is not necessary to consider whether the appellant was entitled to exclude the two holidays, namely, 15th and 16th August 1959. The present suit is, therefore, hit by limitation and was rightly dismissed by both the lower Courts.

20. Before concluding, we may state that apart from the preliminary objections raised by Mr. Pendse, he also wanted to urge that the learned District Judge was not right in holding that the plaintiff proved his right to redeem the suit property. He also wanted to support the decree of the trial Court on the grounds that the defendants succeeded in establishing adverse possession and that defendants Nos. 2 to 8 were the bona fide purchasers for value without notice. However, we do not consider it necessary to go into these contentions, as the appeal can be disposed of on the question of law, as indicated above.

21. In the result, the appeal is dismissed with one set of costs in favour of respondents Nos. 2 and 5-A to 5-D.

22. In view of tbe above judgment, no order is necessary on Civil Application No. 3140 of 1975. Rule discharged. No order as to costs,

23. Appeal dismissed.


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