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Sadashivappa Gangappa Vs. Sangappa Chanvirappa Mahamadkoti - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 249 of 1927
Judge
Reported in(1931)33BOMLR1033
AppellantSadashivappa Gangappa
RespondentSangappa Chanvirappa Mahamadkoti
DispositionAppeal dismissed
Excerpt:
.....of 1908), article 120-suit for declaration-decree against minor-cross negligence of guardian in suit-sanction of the court not obtained to the decree-sight to sue, aacrual of-civil procedure code (ae. v of 1908), order xxxii, rule 7.;a suit to obtain a declaration that a decree obtained against a minor is void either on the ground of gross negligence of the guardian in suit or for want of sanction of the court to the decree under order xxxii, rule 7 of the civil procedure code, is governed by article 120 of the indian limitation act, 1908. the right to sue in such a suit under the article accrues on one of three dates in point of chronological order : first, when the decree is passed ; secondly, when the decree cornea to the knowledge of the plaint-iff; and, thirdly, when the..........july 1922, when a notice was issued against him to show cause why a sale-deed as provided by the award decree should not be passed, and the present suit was filed immediately after that it was held by the privy council in bolo v. koklan (1930) l.r. 57 indap 325 32 bom. l.r. 1596 that there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. that ruling appears to apply to the facts of the present case. there was no infringement of the plaintiff's right or any clear and unequivocal threat to his rights till the year 1922. this being so, the suit is not barred by limitation, the appeal fails, and must be dismissed.....
Judgment:

Madgavkar, J.

1. This is an appeal by the defendants against the decree of the First Class Subordinate Judge, Bijapur, in favour of the plaintiff-respondent declaring that the decree in suit No. 184 ol 1916 was not binding on the plaintiff-respondent.

2. The relevant facts are shortly as follows. On September 22, 1903, the deceased Chanvirappa, father of the plaintiff-respondent, and one Mahalingappa Katti purchased certain land under a registered sale-deed. It is the case for the defendants-appellants that Chanvirappa was benami for themselves, that the money came from the appellants' father Gangappa in a shop in which both had a certain interest. In 1916 the appellants' father Gangappa brought a suit No. 184 of 1916, impleading as defendants No. 1 the uncle of the present plaintiff-respondent, No. 2 his cousin, No, 3 being the plaintiff-respondent himself by his mother Madivalava as guardian, No. 4 being the auction-purchaser Mahalingapppa. The plaintiff-respondent was then, even according to the appellants, aged fifteen. That suit was referred to arbitration by the parties by a reference which was made without the sanction of the Court. And the award, Exhibit 78, was in favour of Gangappa, the father of the appellants. On this award a decree was passed on September 29, 1917, in favour of Gangappa, the father of the appellants, and the plaintiff in that suit. On October 15, 1923, the present plaintiff, who was born on October 10, 1900, instituted the present suit to set aside that decree. The grounds set forth on his behalf were, first, fraud; second, negligence; and, third, want of sanction of the Court necessary under Order XXXII, Rule 7, in respect of the reference. The defendants-appellants denied these allegations, and raised the plea of limitation. The trial Court held that fraud was not proved, but negligence only on the part of the mother of the plaintiff-respondent, but on the third point held that the reference, the award, and the decree passed in terms of the award were void for want of the necessary sanction of the Court to the reference under Order XXXII, Rule 7, of the Code of Civil Procedure. On the question of limitation it held that the suit was not barred, Article 120 applied, and the right to sue accrued when the plaintiff first came to know of the decree.

3. The finding of negligence has not been seriously questioned before us, nor the view of the trial Court on the ground based oh Order XXXII, Rule 7, Civil Procedure Code. On the question of limitation, however, it is argued, even if Article 120 applies, the right to sue accrued and time began to run from the date of the decree, i.e., September 29, 1917, more than six years before the present suit, instituted on October 16, 1923, so that the suit was barred by limitation. It was pointed out that wherever the Legislature intended that time should begin to run from the date of knowledge of the plaintiff, such as in Articles 90, 91, and 92, the Legislature has expressly sO enacted in these Articles, which is not the case in Article 120.

4. For the respondent it has been pointed out to us by Mr. Desai that the proceedings in the suit of 1916 prove, if not a fraud on the plaintiff, at least a fraud upon the Court, and that in any case if the decree in the former suit of 1916 was void, as was ' practically conceded, by reason of the want of sanction of the Court under Order XXXII, Rule 7, time could not begin to run against the plaintiff until the notice on July 27, 1922, in dar-khast No. 174 of 1922 by the appellants.

5. The provisions of Order XXXII, Rule 7, are imperative. The reference without the sanction of the Court and therefore the award and the decree are clearly void. It is not, therefore, necessary to enter deeply into the question of fraud, At the same time there are several indications of lack of bona fides on the part of the appellants' father Gangappa. For instance, in the reference the defendants are shown as the present respondent's uncle and others, so that the fact of a minor being concerned is not on the face of the reference apparent. In the award, Exhibit 78, again the minor's name is not mentioned, but on the contrary, the defendant there is shown as his mother Madivalava, and similarly the body of the award makes no mention of the present respondent or his minority, with the result that on such an award coming before the Court, ordinarily, unless the fact that defendant No. 3 was really not the mother, but the minor represented by the mother, was brought to the notice of the Court, a decree might be passed, as apparently it actually was, without the Court at any stage of the proceedings being informed of the fact of the minority of defendant No. 3 in the suit and the necessity for its sanction. Speaking for ourselves we are not clear that on the question of fraud on these facts an inference of fraud upon the Court, and therefore upon the minor, could not be inferred. However, in the view we take of the necessity, of sanction under Order XXXII Rule 7, and the voidness of the decree on that ground, it is not necessary further to consider this question.

6. On the second point, it appears that the respondent's mother, and on her death the respondent, have been in possession of the property. The mother died on November 4, 1918, and on Decem-ber 1, 192 , the plaintiff respondent applied to the revenue authorities for a mantation of names in his own favour. It was only when the appellants objected to this by reason of their decree and he received the necsssavy notice referred to above on July 27, l922,that the existence of the decree in the suit of 1916 was apparently first brought to the knowledge of the respondent. The appellants, it is true, had filed previous darkhasta in 1920, but no Bhatta was paid, no notice was issued, and it was dismissed in October 1920, and it was only in the course of their second darkhast given on June 21, 1922, when notice was ordered to issue on July 27, 1922, against the respondent to show cause why the sale-deed as per the award should not be enforced, that the matter came to his notice, He was alleged to have sold his property in September 1923. There is no evidence, however, on that point.

7. In regard to Article 120 the right to sue can only accrue on one of three dates in point of chronological order; firstly, whan the decree is passed : secondly, when the decree comes to the knowlege of the plaintiff'; and thirdly, when the defect, whether gross negligence or lack of sanction of the Court, becomes known to him. It is obvious that the first date might well result in a claimant losing his rights by reason of a decree wrongly obtained against him bafore its existence is over known to him, a hardship greater in Our opinion than the one which limitation is intended to prevent by the ripening of legal rights. The third is not expressly provided for. In Ottappurakkal Thazhate Soopi v. Cherichil Palli-kkal Uppathuma I.L.R. (1909) Mad. 31 a case relied on for the appellants, it was held that the right of junior members of a tarwad to sue for a declaration that an alienation by the karnavan is not binding on the tarwad accrues the moment the document is completed and not when the plaintiff obtain knowledge of it. A tarwad, however, is a peculiar institution. The members are usually resident therein. It may be that such a document could not ordinarily be passed or at least possession given without the knowledge of the members. Cowasji If, Pochkhanawalla v. R. D. Setna I.L.R. (1803) Bom. 511 was the case of a settlor who sued to recover property which he had settled by invalid trusts. The present question obviously could not arise when at the very moment of the trust the settlor who made it was perfectly aware of its existence. In a recent case, Bolo v. Koklan (1930) L.R. 57 IndAp 325 Bom. L.R. 1596 it was laid down by their Lordships of the Privy Council that in regard to Article 120 (p. 331) 'there can be no right to sue' until there is an accrual of the right asserted in the suit and its infringe-ment, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted. These words may well be applied to the present case. Whatever right the plaintiff possessed, and he was in actual possession, there was no infringement nor oven a clear and unequivocal threat to infringe that right until some time after July 27, 1922, the date of the notice in the second darkhast by the appellants, when they also objected to the mutation of names in favour of the respondent. We are of opinion that in cases such as the present Article 120 applies, and the right to sue accrues when the defendants threatened the plaintiff with the execution of the decree of 1916. It follows that the present suit is within the statutory period. Accordingly, the appeal fails, and must be dismissed with costs.

Baker, J.

8. The only point that has been raised in this appeal is the question of limitation, it being admitted that in view of the total absence of any sanction by the Court on behalf of the minor, the reference to arbitration, and the award, and the decree of 1917 cannot be upheld. It is common ground that Article 120 of the Indian Limitation Act will apply to the present case, and the only question is when the cause of action accrued to the plaintiff, and it is contended that the cause of action accrued at the date of the decree, which was on September 29, 1917, and therefore the present suit brought on October 15,1923, was time-barred. Admittedly, the plaintiff was in possession, and no attempt was made to execute the decree of 1917 against him, that is to say, no earnest attempt, and no notice was issued to him until 1922. A reference to the arbitration proceedings will show that the name of the present plaintiff, who was then a minor, did not appear at all in the award before the arbitrators, although it appeared in the decree, There is nothing to show that the plaintiff had any knowledge at all of the existence of this decree until July 1922, when a notice was issued against him to show cause why a sale-deed as provided by the award decree should not be passed, and the present suit was filed immediately after that It was held by the Privy Council in Bolo v. Koklan (1930) L.R. 57 IndAp 325 32 Bom. L.R. 1596 that there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. That ruling appears to apply to the facts of the present case. There was no infringement of the plaintiff's right or any clear and unequivocal threat to his rights till the year 1922. This being so, the suit is not barred by limitation, The appeal fails, and must be dismissed with costs.


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